[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Rules and Regulations]
[Pages 63531-63537]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28995]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 232 / Friday, December 4, 2009 /
Rules and Regulations
[[Page 63531]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 752
RIN 3206-AL39
Adverse Actions
AGENCY: U.S. Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final
regulations governing Federal adverse actions. The final regulations
clarify the adverse action rules regarding reductions in pay. In
addition, the final regulations remove unnecessary subparts pertaining
to statutory requirements, make a number of technical corrections, and
utilize consistent language for similar regulatory requirements. The
changes also include various revisions to make the regulations more
readable.
DATES: Effective Date: The rule is effective February 2, 2010.
FOR FURTHER INFORMATION CONTACT: Sharon Hall by telephone at (202) 606-
2930; by FAX at (202) 606-2613; or by e-mail at CWRAP@opm.gov.
SUPPLEMENTARY INFORMATION:
Introduction
On September 18, 2008, OPM published at 73 FR 54075 (2008) proposed
amendments to the regulations in part 752 of title 5, Code of Federal
Regulations (CFR), to clarify the adverse action rules regarding
reductions in pay and indefinite suspension, remove unnecessary
subparts pertaining to statutory requirements, make technical
corrections, utilize consistent language for similar regulatory
requirements, and make the regulations more readable. The public
comment period on the proposed amendments ended on November 17, 2008.
OPM received comments from four Federal agencies or departments, four
unions, an employment law attorney, and a professional organization of
attorneys specializing in employment law. OPM has carefully considered
the comments received.
Amendment To Clarify Adverse Action Rules Regarding Reduction in Pay
OPM proposed to amend 5 CFR 752.401(b)(15), to clarify that a
reduction in an employee's rate of basic pay resulting from the
application of The Federal Workforce Flexibility Act (Pub. L. 108-411,
October 30, 2004) and implementing regulations is excluded from adverse
action coverage. We received no comments on this proposed change. One
agency recommended that we also modify 5 CFR 752.401(b)(2) to
substitute the term ``pay'' for ``grade'' and thereby extend the
exclusion to pay-banded systems as well as systems using grades. This
recommendation is outside the scope of the current proposed regulation
and therefore has not been considered.
Amendment To Clarify Adverse Action Rules Regarding Indefinite
Suspension
OPM proposed to revise the regulations to clarify that the ``crime
provision'' at 5 U.S.C. 7513(b)(1) is an exception only to the general
30-day notice requirement for taking adverse actions and that it does
not set a higher or separate standard of proof for indefinite
suspensions.
OPM also proposed a ``Standard for Action'' to list examples of
serious misconduct for which an indefinite suspension could be an
appropriate action. These examples were the types of misconduct that
would pose a specific significant and ongoing risk.
We received comments regarding the proposed clarification of OPM
regulations on this topic. Several commenters stated that OPM's
interpretation of the law represented an unwarranted expansion of the
grounds for indefinite suspension based on an overreaching
interpretation of the Federal Circuit Court of Appeals' decision in
Perez v. Department of Justice, 480 F.3d 1309 (Fed. Cir. 2007). While
not within the scope of the proposed regulations, two commenters urged
that agencies be required to meet the ``reasonable cause'' standard
specified in 5 U.S.C. 7513(b)(1) in all indefinite suspensions
involving allegations of criminal activity.
One comment asserted that OPM was giving agencies license to
suspend employees indefinitely, without pay, for virtually any serious
misconduct. This comment focused on duration and control--that is,
agencies would have the power to suspend employees indefinitely for a
duration solely within the agency's control, unbounded by any external
event, such as a criminal investigation resulting in a criminal charge
or other disposition.
Focusing on the agencies' burden of proof, this comment also
asserted that the proposed regulations did not make clear what an
agency would have to show to a reviewing body to justify its action.
That is, although OPM clarified that the correct standard is
``preponderance of the evidence'' rather than a universally applied
and, in the commenter's view, more appropriate ``reasonable cause''
standard, it is unclear exactly what OPM contemplates that the agency
would be required to prove by a preponderance of the evidence.
Several commenters also took issue with the enumeration of types of
categories that would warrant an indefinite suspension. They described
the list as vague and overbroad.
One commenter suggested additional language be added to sections
752.403(a), 752.404(b)(1), and 752.404(g) to state that regardless of
whether the agency invokes the ``crime provision'' and shortens the
notice period under 5 U.S.C. 7513(b)(1), action taken under this
subpart must satisfy the requirement of 5 U.S.C. 7513(a) to prove that
the suspension promotes the efficiency of the service.
Finally, one commenter suggested a change in the regulation at 5
CFR 752.404(b)(3)(ii) to require that when the provisions of 5 U.S.C.
7513(b)(1) are invoked to curtail the 30-day notice period, the
employee will continue to receive pay and benefits for up to 30 days
with no charge to his or her accrued leave.
After reviewing the comments, OPM has decided not to make any
changes in the current regulations relating to indefinite suspensions.
The comments regarding standards and procedures for using
indefinite suspensions persuade us that the issues raised are quite
complex. These include
[[Page 63532]]
the amount of evidence needed to justify use of indefinite suspensions,
issues relating to the absence of external events limiting the duration
of investigations, and the types of misconduct that would justify the
indefinite suspension action. Accordingly, we have determined that we
should await further delineation of the law by MSPB and the Court of
Appeals for the Federal Circuit before deciding whether to propose
substantive regulations on this subject.
Miscellaneous Comments
One commenter expressed concern that the slow processing of
security clearance appeals can leave employees on an indefinite
suspension in limbo for months or years. The commenter recommended that
OPM promulgate a new regulation to require that employees who have had
their clearance suspended either be placed in another position not
requiring a clearance or be provided back pay for the period of
suspension if no such position exists. In addition, an agency proposed
additional text be added to sections 752.404(c)(3), 752.404(f),
752.604(c)(3), and 752.604(f) to clarify that any request for medical
information must be consistent with the Rehabilitation Act of 1973 [29
U.S.C. 791]. Since no change in the substantive content of the
regulations in these areas was proposed, these suggestions are outside
the scope of the current proposed regulation and therefore have not
been considered.
Another agency recommended amendment of Sec. 752.404(f) to clarify
what they described as a new obligation to provide disability
retirement information to employees with the requisite years of service
for disability retirement even if the medical documentation is
unrelated to the proposed adverse action. While the text in this area
was reorganized for clarity, no change to the substantive content of
the regulations in this area was proposed. Accordingly, this suggestion
is outside the scope of the current proposed regulation and therefore
has not been considered.
One commenter recommended changing the provisions governing appeals
of adverse actions to the Merit Systems Protection Board (MSPB). They
recommended that MSPB be authorized to issue summary judgment decisions
without a hearing where the MSPB administrative judge finds there are
no material facts in dispute or genuine issues of credibility. One
agency recommended deletion of 5 CFR 752.401(c)(6), arguing that as
written, it conflicts with case law, specifically Van Wersch v. DHHS,
197 F.3d 1144 (Fed. Cir. 1999), and the line of cases that followed.
One union recommended that 5 CFR 752.201(b)(2) should be amended
because it is inconsistent with 5 U.S.C. 7501. Since no change in the
substantive content of the regulations in these areas was proposed,
these suggestions are outside the scope of the current proposed
regulation and therefore have not been considered.
Executive Order 12866, Regulatory Review
The Office of Management and Budget has reviewed the final rule in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have significant economic
impact on a substantial number of small entities because they will
affect Federal agencies, employees, and applicants only.
E.O. 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988--Civil Justice Reform
This regulation meets the applicable standard set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private section, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization, and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 5 CFR Part 752
Administrative practice and procedure, Government employees.
U.S. Office of Personnel Management.
John Berry,
Director.
0
Accordingly, OPM is revising part 752 of title 5, Code of Federal
Regulations, to read as follows:
PART 752--ADVERSE ACTIONS
Sec.
Subpart A--[Reserved]
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
Subpart C--[Reserved]
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
Subpart E--[Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
Authority: 5 U.S.C. 7504, 7514, and 7543.
Subpart A--[Reserved]
Subpart B--Regulatory Requirements for Suspension for 14 Days or
Less
Sec. 752.201 Coverage.
(a) Adverse actions covered. This subpart covers suspension for 14
days or less.
(b) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completed a
probationary or trial period;
(2) An employee in the competitive service serving in an
appointment which requires no probationary or trial period, and who has
completed 1 year of current continuous employment in the same or
similar positions under other than a temporary appointment limited to 1
year or less;
[[Page 63533]]
(3) An employee with competitive status who occupies a position
under Schedule B of part 213 of this chapter;
(4) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and still occupies that position;
(5) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(6) An employee of the Government Printing Office.
(c) Exclusions. This subpart does not apply to a suspension for 14
days or less:
(1) Of an administrative law judge under 5 U.S.C. 7521;
(2) Taken for national security reasons under 5 U.S.C. 7532;
(3) Taken under any other provision of law which excepts the action
from subchapter I, chapter 75, of title 5, U.S. Code;
(4) Of a reemployed annuitant; or
(5) Of a National Guard Technician.
(d) Definitions. In this subpart--
Current continuous employment means a period of employment
immediately preceding a suspension action without a break in Federal
civilian employment of a workday.
Day means a calendar day.
Similar positions means positions in which the duties performed are
similar in nature and character and require substantially the same or
similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue
interruption to the work.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
Sec. 752.202 Standard for action.
(a) An agency may take action under this subpart for such cause as
will promote the efficiency of the service as set forth in 5 U.S.C.
7503(a).
(b) An agency may not take a suspension against an employee on the
basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.203 Procedures.
(a) Statutory entitlements. An employee under this subpart whose
suspension is proposed under this subpart is entitled to the procedures
provided in 5 U.S.C. 7503(b).
(b) Notice of proposed action. The notice must state the specific
reason(s) for the proposed action, and inform the employee of his or
her right to review the material which is relied on to support the
reasons for action given in the notice.
(c) Employee's answer. The employee must be given a reasonable
time, but not less than 24 hours, to answer orally and in writing and
to furnish affidavits and other documentary evidence in support of the
answer.
(d) Representation. An employee covered by this subpart is entitled
to be represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or her official position
would give rise to unreasonable costs or whose priority work
assignments preclude his or her release.
(e) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the employee or his or her representative, or
both, made to a designated official.
(2) The agency must specify in writing the reason(s) for the
decision and advise the employee of any grievance rights under
paragraph (f) of this section. The agency must deliver the notice of
decision to the employee on or before the effective date of the action.
(f) Grievances. The employee may file a grievance through an agency
administrative grievance system (if applicable) or, if the suspension
falls within the coverage of an applicable negotiated grievance
procedure, an employee in an exclusive bargaining unit may file a
grievance only under that procedure. Sections 7114(a)(5) and
7121(b)(1)(C) of title 5, U.S. Code, and the terms of any collective
bargaining agreement, govern representation for employees in an
exclusive bargaining unit who grieve a suspension under this subpart
through the negotiated grievance procedure.
(g) Agency records. The agency must maintain copies of, and will
furnish to the Merit Systems Protection Board and to the employee upon
their request, the following documents:
(1) Notice of the proposed action;
(2) Employee's written reply, if any;
(3) Summary of the employee's oral reply, if any;
(4) Notice of decision; and
(5) Any order effecting the suspension, together with any
supporting material.
Subpart C--[Reserved]
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
Sec. 752.401 Coverage.
(a) Adverse actions covered. This subpart applies to the following
actions:
(1) Removals;
(2) Suspensions for more than 14 days, including indefinite
suspensions;
(3) Reductions in grade;
(4) Reductions in pay; and
(5) Furloughs of 30 days or less.
(b) Actions excluded. This subpart does not apply to:
(1) An action imposed by the Merit Systems Protection Board under
the authority of 5 U.S.C. 1215;
(2) The reduction in grade of a supervisor or manager who has not
completed the probationary period under 5 U.S.C. 3321(a)(2) if such a
reduction is to the grade held immediately before becoming a supervisor
or manager;
(3) A reduction-in-force action under 5 U.S.C. 3502;
(4) A reduction in grade or removal under 5 U.S.C. 4303;
(5) An action against an administrative law judge under 5 U.S.C.
7521;
(6) A suspension or removal under 5 U.S.C. 7532;
(7) Actions taken under any other provision of law which excepts
the action from subchapter II of chapter 75 of title 5, United States
Code;
(8) Action that entitles an employee to grade retention under part
536 of this chapter, and an action to terminate this entitlement;
(9) A voluntary action by the employee;
(10) Action taken or directed by the Office of Personnel Management
under part 731 of this chapter;
(11) Termination of appointment on the expiration date specified as
a basic condition of employment at the time the appointment was made;
(12) Action that terminates a temporary or term promotion and
returns the employee to the position from which temporarily promoted,
or to a different position of equivalent grade and pay, if the agency
informed the employee that it was to be of limited duration;
(13) Cancellation of a promotion to a position not classified prior
to the promotion;
(14) Placement of an employee serving on an intermittent or
seasonal basis in a temporary nonduty, nonpay status in accordance with
conditions
[[Page 63534]]
established at the time of appointment; or
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary to law or regulation, including a reduction necessary to
comply with the amendments made by Public Law 108-411, regarding pay-
setting under the General Schedule and Federal Wage System and
regulations implementing those amendments.
(c) Employees covered. This subpart covers:
(1) A career or career conditional employee in the competitive
service who is not serving a probationary or trial period;
(2) An employee in the competitive service who has completed 1 year
of current continuous service under other than a temporary appointment
limited to 1 year or less;
(3) An employee in the excepted service who is a preference
eligible in an Executive agency as defined at section 105 of title 5,
United States Code, the U.S. Postal Service, or the Postal Regulatory
Commission and who has completed 1 year of current continuous service
in the same or similar positions;
(4) A Postal Service employee covered by Public Law 100-90 who has
completed 1 year of current continuous service in the same or similar
positions and who is either a supervisory or management employee or an
employee engaged in personnel work in other than a purely
nonconfidential clerical capacity;
(5) An employee in the excepted service who is a nonpreference
eligible in an Executive agency as defined at section 105 of title, 5,
United States Code, and who has completed 2 years of current continuous
service in the same or similar positions under other than a temporary
appointment limited to 2 years or less;
(6) An employee with competitive status who occupies a position in
Schedule B of part 213 of this chapter;
(7) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and who still occupies that position;
(8) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(9) An employee of the Government Printing Office.
(d) Employees excluded. This subpart does not apply to:
(1) An employee whose appointment is made by and with the advice
and consent of the Senate;
(2) An employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character by the President for a position that the President has
excepted from the competitive service; the Office of Personnel
Management for a position that the Office has excepted from the
competitive service (Schedule C); or the President or the head of an
agency for a position excepted from the competitive service by statute;
(3) A Presidential appointee;
(4) A reemployed annuitant;
(5) A technician in the National Guard described in section
8337(h)(1) of title 5, United States Code, who is employed under
section 709(a) of title 32, United States Code;
(6) A Foreign Service member as described in section 103 of the
Foreign Service Act of 1980;
(7) An employee of the Central Intelligence Agency or the
Government Accountability Office;
(8) An employee of the Veterans Health Administration (Department
of Veterans Affairs) in a position which has been excluded from the
competitive service by or under a provision of title 38, United States
Code, unless the employee was appointed to the position under section
7401(3) of title 38, United States Code;
(9) A nonpreference eligible employee with the U.S. Postal Service,
the Postal Regulatory Commission, the Panama Canal Commission, the
Tennessee Valley Authority, the Federal Bureau of Investigation, the
National Security Agency, the Defense Intelligence Agency, or any other
intelligence component of the Department of Defense (as defined in
section 1614 of title 10, United States Code), or an intelligence
activity of a military department covered under subchapter I of chapter
83 of title 10, United States Code;
(10) An employee described in section 5102(c)(11) of title 5,
United States Code, who is an alien or noncitizen occupying a position
outside the United States;
(11) A nonpreference eligible employee serving a probationary or
trial period under an initial appointment in the excepted service
pending conversion to the competitive service, unless he or she meets
the requirements of paragraph (c)(5) of this section;
(12) An employee whose agency or position has been excluded from
the appointing provisions of title 5, United States Code, by separate
statutory authority in the absence of any provision to place the
employee within the coverage of chapter 75 of title 5, United States
Code; and
(13) An employee in the competitive service serving a probationary
or trial period, unless he or she meets the requirements of paragraph
(c)(2) of this section.
Sec. 752.402 Definitions.
In this subpart--
Current continuous employment means a period of employment or
service immediately preceding an adverse action without a break in
Federal civilian employment of a workday.
Day means a calendar day.
Furlough means the placing of an employee in a temporary status
without duties and pay because of lack of work or funds or other
nondisciplinary reasons.
Grade means a level of classification under a position
classification system.
Indefinite suspension means the placing of an employee in a
temporary status without duties and pay pending investigation, inquiry,
or further agency action. The indefinite suspension continues for an
indeterminate period of time and ends with the occurrence of the
pending conditions set forth in the notice of action which may include
the completion of any subsequent administrative action.
Pay means the rate of basic pay fixed by law or administrative
action for the position held by the employee, that is, the rate of pay
before any deductions and exclusive of additional pay of any kind.
Similar positions means positions in which the duties performed are
similar in nature and character and require substantially the same or
similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue
interruption to the work.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay for more than 14
days.
Sec. 752.403 Standard for action.
(a) An agency may take an adverse action, including a performance-
based adverse action or an indefinite suspension, under this subpart
only for such cause as will promote the efficiency of the service.
(b) An agency may not take an adverse action against an employee on
the basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.404 Procedures.
(a) Statutory entitlements. An employee against whom action is
[[Page 63535]]
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7513(b).
(b) Notice of proposed action. (1) An employee against whom an
action is proposed is entitled to at least 30 days' advance written
notice unless there is an exception pursuant to paragraph (d) of this
section. The notice must state the specific reason(s) for the proposed
action, and inform the employee of his or her right to review the
material which is relied on to support the reasons for action given in
the notice.
(2) When some but not all employees in a given competitive level
are being furloughed, the notice of proposed action must state the
basis for selecting a particular employee for furlough, as well as the
reasons for the furlough.
(3) Under ordinary circumstances, an employee whose removal or
suspension, including indefinite suspension, has been proposed will
remain in a duty status in his or her regular position during the
advance notice period. In those rare circumstances where the agency
determines that the employee's continued presence in the workplace
during the notice period may pose a threat to the employee or others,
result in loss of or damage to Government property, or otherwise
jeopardize legitimate Government interests, the agency may elect one or
a combination of the following alternatives:
(i) Assigning the employee to duties where he or she is no longer a
threat to safety, the agency mission, or to Government property;
(ii) Allowing the employee to take leave, or carrying him or her in
an appropriate leave status (annual, sick, leave without pay, or
absence without leave) if the employee has absented himself or herself
from the worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d)(1) of this section; or
(iv) Placing the employee in a paid, nonduty status for such time
as is necessary to effect the action.
(c) Employee's answer. (1) An employee may answer orally and in
writing except as provided in paragraph (c)(2) of this section. The
agency must give the employee a reasonable amount of official time to
review the material relied on to support its proposed action, to
prepare an answer orally and in writing, and to secure affidavits, if
the employee is in an active duty status. The agency may require the
employee to furnish any answer to the proposed action, and affidavits
and other documentary evidence in support of the answer, within such
time as would be reasonable, but not less than 7 days.
(2) The agency will designate an official to hear the employee's
oral answer who has authority either to make or recommend a final
decision on the proposed adverse action. The right to answer orally in
person does not include the right to a formal hearing with examination
of witnesses unless the agency provides for such hearing in its
regulations. Under 5 U.S.C. 7513(c), the agency may, in its
regulations, provide a hearing in place of or in addition to the
opportunity for written and oral answer.
(3) If the employee wishes the agency to consider any medical
condition which may contribute to a conduct, performance, or leave
problem, the employee must be given a reasonable time to furnish
medical documentation (as defined in Sec. 339.104 of this chapter) of
the condition. Whenever possible, the employee will supply such
documentation within the time limits allowed for an answer.
(d) Exceptions. (1) Section 7513(b) of title 5, U.S. Code,
authorizes an exception to the 30 days' advance written notice when the
agency has reasonable cause to believe that the employee has committed
a crime for which a sentence of imprisonment may be imposed and is
proposing a removal or suspension, including indefinite suspension.
This notice exception is commonly referred to as the ``crime
provision.'' This provision may be invoked even in the absence of
judicial action.
(2) The advance written notice and opportunity to answer are not
required for furlough without pay due to unforeseeable circumstances,
such as sudden breakdowns in equipment, acts of God, or sudden
emergencies requiring immediate curtailment of activities.
(e) Representation. Section 7513(b)(3) of title 5, U.S. Code,
provides that an employee covered by this part is entitled to be
represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or her official position
would give rise to unreasonable costs or whose priority work
assignments preclude his or her release.
(f) Agency review of medical information. When medical information
is supplied by the employee pursuant to paragraph (c)(3) of this
section, the agency may, if authorized, require a medical examination
under the criteria of Sec. 339.301 of this chapter, or otherwise, at
its option, offer a medical examination in accordance with the criteria
of Sec. 339.302 of this chapter. If the employee has the requisite
years of service under the Civil Service Retirement System or the
Federal Employees' Retirement System, the agency must provide
information concerning disability retirement. The agency must be aware
of the affirmative obligations of the provisions of 29 CFR 1614.203,
which require reasonable accommodation of a qualified individual with a
disability.
(g) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the employee or his or her representative, or
both, made to a designated official and any medical documentation
reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision
and advise the employee of any appeal or grievance rights under Sec.
752.405 of this part. The agency must deliver the notice of decision to
the employee on or before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of
this chapter provides that an employee's application for disability
retirement need not delay any other appropriate personnel action.
Section 831.1205 and Sec. 844.202 of this chapter set forth the basis
under which an agency must file an application for disability
retirement on behalf of an employee.
Sec. 752.405 Appeal and grievance rights.
(a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an
employee against whom an action is taken under this subpart is entitled
to appeal to the Merit Systems Protection Board.
(b) Grievance rights. As provided at 5 U.S.C. 7121(e)(1), if a
matter covered by this subpart falls within the coverage of an
applicable negotiated grievance procedure, an employee may elect to
file a grievance under that procedure or appeal to the Merit Systems
Protection Board under 5 U.S.C. 7701, but not both. Sections 7114(a)(5)
and 7121(b)(1)(C) of title 5, U.S. Code, and the terms of an applicable
collective bargaining agreement, govern representation for employees in
an exclusive bargaining unit who grieve a matter under this subpart
through the negotiated grievance procedure.
Sec. 752.406 Agency records.
The agency must maintain copies of, and will furnish to the Merit
Systems Protection Board and to the employee upon his or her request,
the following documents:
[[Page 63536]]
(a) Notice of the proposed action;
(b) Employee's written reply, if any;
(c) Summary of the employee's oral reply, if any;
(d) Notice of decision; and
(e) Any order effecting the action, together with any supporting
material.
Subpart E--[Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Action Under
the Senior Executive Service
Sec. 752.601 Coverage.
(a) Adverse actions covered. This subpart applies to suspensions
for more than 14 days and removals from the civil service as set forth
in 5 U.S.C. 7542.
(b) Actions excluded. (1) An agency may not take a suspension
action of 14 days or less.
(2) This subpart does not apply to actions taken under 5 U.S.C.
1215, 3592, 3595, or 7532.
(c) Employees covered. This subpart covers the following
appointees:
(1) A career appointee--
(i) Who has completed the probationary period in the Senior
Executive Service;
(ii) Who is not required to serve a probationary period in the
Senior Executive Service; or
(iii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(2) A limited term or limited emergency appointee--
(i) Who received the limited appointment without a break in service
in the same agency as the one in which the employee held a career or
career-conditional appointment (or an appointment of equivalent tenure
as determined by the Office of Personnel Management) in a permanent
civil service position outside the Senior Executive Service; and
(ii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(d) Employees excluded. This subpart does not cover an appointee
who is serving as a reemployed annuitant.
Sec. 752.602 Definitions.
In this subpart--
Career appointee, limited term appointee, and limited emergency
appointee have the meaning given in 5 U.S.C. 3132(a).
Day means calendar day.
Suspension has the meaning given in 5 U.S.C. 7501(2).
Sec. 752.603 Standard for action.
(a) An agency may take an adverse action under this subpart only
for reasons of misconduct, neglect of duty, malfeasance, or failure to
accept a directed reassignment or to accompany a position in a transfer
of function.
(b) An agency may not take an adverse action under this subpart on
the basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.604 Procedures.
(a) Statutory entitlements. An appointee against whom action is
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7543(b).
(b) Notice of proposed action. (1) An appointee against whom an
action is proposed is entitled to at least 30 days' advance written
notice unless there is an exception pursuant to paragraph (d) of this
section. The notice must state the specific reason(s) for the proposed
action, and inform the appointee of his or her right to review the
material that is relied on to support the reasons for action given in
the notice.
(2) Under ordinary circumstances, an appointee whose removal has
been proposed will remain in a duty status in his or her regular
position during the advance notice period. In those rare circumstances
where the agency determines that the appointee's continued presence in
the work place during the notice period may pose a threat to the
appointee or others, result in loss of or damage to Government
property, or otherwise jeopardize legitimate Government interests, the
agency may elect one or a combination of the following alternatives:
(i) Assigning the appointee to duties where he or she is no longer
a threat to safety, the agency mission, or Government property;
(ii) Allowing the appointee to take leave, or carrying him or her
in an appropriate leave status (annual, sick, leave without pay, or
absence without leave) if the appointee has absented himself or herself
from the worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d) of this section; or
(iv) Placing the appointee in a paid, nonduty status for such time
as is necessary to effect the action.
(c) Appointee's answer. (1) The appointee may answer orally and in
writing except as provided in paragraph (c)(2) of this section. The
agency must give the appointee a reasonable amount of official time to
review the material relied on to support its proposed action, to
prepare an answer orally and in writing, and to secure affidavits, if
the appointee is in an active duty status. The agency may require the
appointee to furnish any answer to the proposed action, and affidavits
and other documentary evidence in support of the answer, within such
time as would be reasonable, but not less than 7 days.
(2) The agency will designate an official to hear the appointee's
oral answer who has authority either to make or to recommend a final
decision on the proposed adverse action. The right to answer orally in
person does not include the right to a formal hearing with examination
of witnesses unless the agency provides for such hearing in its
regulations. Under 5 U.S.C. 7543(c), the agency may in its regulations
provide a hearing in place of or in addition to the opportunity for
written and oral answer.
(3) If the appointee wishes the agency to consider any medical
condition that may have affected the basis for the adverse action, the
appointee must be given reasonable time to furnish medical
documentation (as defined in Sec. 339.104 of this chapter) of the
condition. Whenever possible, the appointee will supply such
documentation within the time limits allowed for an answer.
(d) Exception. Section 7543(b)(1) of title 5, U.S. Code, authorizes
an exception to the 30 days' advance written notice when the agency has
reasonable cause to believe that the appointee has committed a crime
for which a sentence of imprisonment may be imposed and is proposing a
removal or suspension. This notice exception is commonly referred to as
the ``crime provision.'' This provision may be invoked even in the
absence of judicial action.
(e) Representation. Section 7543(b)(3) of title 5, U.S. Code,
provides that an appointee covered by this part is entitled to be
represented by an attorney or other representative. An agency may
disallow as an appointee's representative an individual whose
activities as representative would cause a conflict of interest or
position, or an employee of the agency whose release from his or her
official position would give rise to unreasonable costs or whose
priority work assignments preclude his or her release.
(f) Agency review of medical information. When medical information
is supplied by the appointee pursuant to paragraph (c)(3) of this
section, the agency may, if authorized, require a medical examination
under the criteria of Sec. 339.301 of this chapter, or otherwise, at
its option, offer a medical examination in accordance with the criteria
of Sec. 339.302 of this chapter. If the appointee has the requisite
years of service under the Civil Service Retirement System or the
Federal
[[Page 63537]]
Employees' Retirement System, the agency must provide information
concerning disability retirement. The agency must be aware of the
affirmative obligations of the provisions of 29 CFR 1614.203, which
require reasonable accommodation of a qualified individual with a
disability.
(g) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the appointee or the appointee's
representative, or both, made to a designated official and any medical
documentation reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision
and advise the appointee of any appeal rights under Sec. 752.605 of
this part. The agency must deliver the notice of decision to the
appointee on or before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of
this chapter provides that an appointee's application for disability
retirement need not delay any other appropriate personnel action.
Section 831.1205 and Sec. 844.202 of this chapter set forth the basis
under which an agency must file an application for disability
retirement on behalf of an appointee.
Sec. 752.605 Appeal rights.
(a) Under 5 U.S.C. 7543(d), a career appointee against whom an
action is taken under this subpart is entitled to appeal to the Merit
Systems Protection Board.
(b) A limited term or limited emergency appointee who is covered
under Sec. 752.601(c)(2) also may appeal an action taken under this
subpart to the Merit Systems Protection Board.
Sec. 752.606 Agency records.
The agency must maintain copies of, and will furnish to the Merit
Systems Protection Board and to the appointee upon his or her request,
the following documents:
(a) Notice of the proposed action;
(b) Appointee's written reply, if any;
(c) Summary of the appointee's oral reply, if any;
(d) Notice of decision; and
(e) Any order effecting the action, together with any supporting
material.
[FR Doc. E9-28995 Filed 12-3-09; 8:45 am]
BILLING CODE 6325-39-P