CFR Subpart D

CFR Subpart D
in effect

5 C.F.R. § 359.401 General exclusions.

This subpart does not apply to the removal of a career appointee during probation when— (a) The action is initiated under 5 U.S.C. 1206(g) or 5 U.S.C. 7542; (b) The removal is effected under subpart C of this part for failure to be recertified; or (c) The appointee is a reemployed annuitant. See subpart I of this part for removal of a reemployed annuitant.

5 C.F.R. § 359.402 Removal: Unacceptable performance.

(a) Coverage. This section covers the removal of a career appointee from the SES during the probationary period for unacceptable performance. (b) Basis for action. A removal under this section need not be based upon a final rating under the agency's SES performance appraisal system established under subpart C of part 430 of this chapter. Even if a removal is based on such a rating, the removal action is taken under this section. (c) Procedures. The agency shall notify the appointee in writing before the effective date of the action. The notice shall, as a minimum— (1) State the agency's conclusions as to the inadequacies of the appointee's performance; (2) State whether the appointee has placement rights under § 359.701 and, if so, identify the position to which the appointee will be assigned; and (3) Show the effective date of the action.

5 C.F.R. § 359.403 Removal: Conduct.

(a) Coverage. (1) This section covers the removal of a career appointee from the SES during the probationary period for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. (2) This section does not apply, however, when the appointee was covered under 5 U.S.C. 7511 immediately before appointment to the SES. In that case, the removal is subject to the provisions of part 752, subpart F, of this chapter. (b) Procedures. The agency shall notify the appointee in writing before the effective date of the action. The notice shall, as a minimum— (1) State the basis for the removal action (including the act(s) of misconduct, neglect of duty, or malfeasance if those factors are involved); and (2) Show the effective date of the action.

5 C.F.R. § 359.404 Removal: Conditions arising before appointment.

(a) Coverage. (1) This section covers the removal of a career appointee from the SES during the probationary period when the action is based in whole or in part on conditions arising before the appointment. (2) This section does not apply, however, when the career appointee was covered under 5 U.S.C. 7511 immediately before appointment to the SES. In that case, the removal is subject to the provisions of part 752, subpart F, of this chapter. (b) Procedures. (1) The agency shall give the appointee an advance written notice stating the specific reasons for the proposed removal. (2) The appointee shall be given a reasonable time to reply. (3) The agency shall give the appointee a written decision showing the reasons for the action and the effective date. The decision shall be given to the appointee at or before the time the action will be made effective.

5 C.F.R. § 359.405 Removal: Reduction in force.

(a) Coverage. This section covers the removal of a career appointee from the SES during the probationary period under a reduction in force. (b) Basis for action. The appointee must have been identified for removal from the SES under competitive procedures established by the agency in accordance with the requirements of 5 U.S.C. 3595(a). Removal action shall be taken under 5 U.S.C. 3592(a). (c) Procedures. The agency shall notify the appointee in writing before the effective date of the action. The notice shall state, as a minimum— (1) Whether the appointee has placement rights under § 359.701 to a position outside the SES and, if so, the position to which the appointee will be assigned; (2) The effective date of the action; (3) The appointee's appeal rights, including the time limit for appeal and the location of the Merit System Protection Board office to which an appeal should be sent; and (4) Such other information as may be required by OPM.

5 C.F.R. § 359.406 Restrictions.

(a) Removal from the SES under §§ 359.402 through 359.404 may not be made effective within 120 days after— (1) The appointment of a new agency head; or (2) The appointment in the agency of the career appointee's most immediate supervisor who— (i) Is a noncareer appointee; and (ii) Has the authority to remove the career appointee. (b) For purposes of this section, a noncareer appointee includes an SES noncareer or limited appointee, an appointee in a position filled by Schedule C, or an appointee in an Executive Schedule or equivalent position other than a career Executive Schedule or equivalent position. (c) The restrictions in paragraph (a) of this section do not apply— (1) When the career appointee has received a final rating of unsatisfactory under the performance appraisal system established by the agency under subchapter II of chapter 43 of title 5, United States Code, before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor who has the authority to remove the career appointee; (2) To a disciplinary action initiated before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor who has the authority to remove the career appointee; (3) To a disciplinary action when there is a reasonable cause to believe that the career appointee has committed a crime for which a sentence of imprisonment can be imposed; or (4) To a disciplinary action when the circumstances are such that retention of the career appointee— (i) May pose a threat to the appointee or others; (ii) May result in loss of or damage to Government property; or (iii) May otherwise jeopardize legitimate Government interests. (d) The following procedures must be observed when an agency invokes an exception to the 120-day restriction under paragraphs (c)(3) or (c)(4) of this section: (1) The agency shall include in the notice the reasons for invoking the exception. (2) The appointee shall be given a reasonable time, but no less than 7 days, to respond regarding the propriety of the use of the exception. (3) The agency shall give the appointee a notice of decision on the propriety of the use of the exception at or before the time the action will be effective. (4) When circumstances require immediate action, the agency may place the appointee in a nonduty status with pay for such time as necessary to effect the action. (e) The imposition of the 120-day moratorium does not extend the probationary period.

5 C.F.R. § 359.407 Appeals.

(a) Removal under § 359.402, 359.403, or 359.404 is not appealable to the Merit Systems Protection Board under 5 U.S.C. 7701. (b) Removal under § 359.405 is appealable to the Merit Systems Protection Board under 5 U.S.C. 7701 as to whether the reduction in force complies with the competitive procedures required under 5 U.S.C. 3595(a).

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