In determining qualifications of a preference eligible for transfer to another position in the competitive service, an Executive agency, or the government of the District of Columbia, the Office of Personnel Management or other examining agency shall waive—
(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and
(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.
This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 94–183, §2(4), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, §906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.)
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| 5 U.S.C. 854 (1st 2 sentences, so much as relates to transfer). | June 27, 1944, ch. 287, §5 (1st 2 sentences, so much as relates to transfer), 58 Stat. 388. |
The section is restated to conform to section 3312.
The words “in the competitive service, an Executive agency, or the government of the District of Columbia” are added on authority of former sections 851, 858, and 869, which are carried into this title. The last sentence is added on authority of former section 869.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
1978—Pub. L. 95–454 substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively.
1975—Pub. L. 94–183 struck out “, except an appointment made under section 3311 of title 39” after “or made with the advice and consent of, the Senate”.
Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.
(a) Subject to the provisions of subsections (d) and (e), in filling a position within any Executive agency, the head of such agency may give preference to any employee of such agency, or any other Executive agency, to transfer to a position of the same status and tenure as the position of such employee on the date of applying for a transfer under subsection (b) if—
(1) such employee is otherwise qualified for such position;
(2) such employee is eligible for appointment to such position; and
(3) the Merit Systems Protection Board makes a determination under the provisions of chapter 12 that a prohibited personnel action described under section 2302(b)(8) was taken against such employee.
(b) An employee who meets the conditions described under subsection (a)(1), (2), and (3) may voluntarily apply for a transfer to a position, as described in subsection (a), within the Executive agency employing such employee or any other Executive agency.
(c) If an employee applies for a transfer under the provisions of subsection (b) and the selecting official rejects such application, the selecting official shall provide the employee with a written notification of the reasons for the rejection within 30 days after receiving such application.
(d) An employee whose application for transfer is rejected under the provisions of subsection (c) may request the head of such agency to review the rejection. Such request for review shall be submitted to the head of the agency within 30 days after the employee receives notification under subsection (c). Within 30 days after receiving a request for review, the head of the agency shall complete the review and provide a written statement of findings to the employee and the Merit Systems Protection Board.
(e) The provisions of subsection (a) shall apply with regard to any employee—
(1) for no more than 1 transfer;
(2) for a transfer from or within the agency such employee is employed at the time of a determination by the Merit Systems Protection Board that a prohibited personnel action as described under section 2302(b)(8) was taken against such employee; and
(3) no later than 18 months after such a determination is made by the Merit Systems Protection Board.
(f) Notwithstanding the provisions of subsection (a), no preference may be given to any employee applying for a transfer under subsection (b), with respect to a preference eligible (as defined under section 2108(3)) applying for the same position.
(Added Pub. L. 101–12, §5(a), Apr. 10, 1989, 103 Stat. 32.)
Section effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title.