5 U.S.C. § 3352 — Preference in transfers for employees

Page 426 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3349e 1 See References in Text note below. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 30 days after Oct. 21, 1998, and appli- cable to any office that becomes vacant after such ef- fective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title. § 3349e. Presidential explanation of failure to nominate an inspector general If the President fails to make a formal nomi- nation for a vacant inspector general position that requires a formal nomination by the Presi- dent to be filled within the period beginning on the later of the date on which the vacancy oc- curred or on which a nomination is rejected, withdrawn, or returned, and ending on the day that is 210 days after that date, the President shall communicate, within 30 days after the end of such period and not later than June 1 of each year thereafter, to the appropriate congres- sional committees, as defined in section 12 of the Inspector General Act of 1978 (5 U.S.C. App.) 1— (1) the reasons why the President has not yet made a formal nomination; and (2) a target date for making a formal nomi- nation. (Added Pub. L. 117–263, div. E, title LII, § 5221(a), Dec. 23, 2022, 136 Stat. 3234.) Editorial Notes REFERENCES IN TEXT Section 12 of the Inspector General Act of 1978, re- ferred to in text, is section 12 of Pub. L. 95–452, which was set out in the Appendix to this title and was re- pealed and restated as section 401 of this title by Pub. L. 117–286, §§ 3(b), 7, Dec. 27, 2022, 136 Stat. 4207, 4361. For definition of ‘‘appropriate congressional committees’’, see Amendments Not Shown in Text note set out under section 401 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 117–263, div. E, title LII, § 5221(c), Dec. 23, 2022, 136 Stat. 3234, provided that: ‘‘The amendment made by subsection (a) [enacting this section] shall take effect— ‘‘(1) on the date of enactment of this Act [Dec. 23, 2022] with respect to any vacancy first occurring on or after that date; and ‘‘(2) on the day that is 210 days after the date of en- actment of this Act with respect to any vacancy that occurred before the date of enactment of this Act.’’ SUBCHAPTER IV—TRANSFERS § 3351. Preference eligibles; transfer; physical qualifications; waiver 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 Of- fice of Personnel Management or other exam- ining 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 accred- ited physician, the preference eligible is phys- ically 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 Sen- ate. (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.) HISTORICAL AND REVISION NOTES 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 defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1978—Pub. L. 95–454 substituted ‘‘Office of Personnel Management’’ and ‘‘Office’’ for ‘‘Civil Service Commis- sion’’ and ‘‘Commission’’, respectively. 1975—Pub. L. 94–183 struck out ‘‘, except an appoint- ment made under section 3311 of title 39’’ after ‘‘or made with the advice and consent of, the Senate’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT 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. § 3352. Preference in transfers for employees making certain disclosures (a) Subject to the provisions of subsections (d) and (e), in filling a position within any Execu- tive agency, the head of such agency may give preference to any employee of such agency, or any other Executive agency, to transfer to a po- sition of the same status and tenure as the posi- tion 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 de- scribed under subsection (a)(1), (2), and (3) may voluntarily apply for a transfer to a position, as Page 427 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3363 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 writ- ten 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 receiv- ing 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 de- termination 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 de- termination is made by the Merit Systems Protection Board. (f) Notwithstanding the provisions of sub- section (a), no preference may be given to any employee applying for a transfer under sub- section (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.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE 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. SUBCHAPTER V—PROMOTION § 3361. Promotion; competitive service; examina- tion An individual may be promoted in the com- petitive service only if he has passed an exam- ination or is specifically excepted from exam- ination under section 3302 of this title. This sec- tion does not take from the President any au- thority conferred by section 3301 of this title that is consistent with the provisions of this title governing the competitive service. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 638 (as ap- plicable to pro- motion). Jan. 16, 1883, ch. 27, § 7 (as applicable to promotion), 22 Stat. 406. The words ‘‘That after the expiration of six months from the passage of this act’’ are omitted as executed. The words ‘‘in the competitive service’’ are substituted for ‘‘in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules’’ be- cause of the definition of ‘‘competitive service’’ in sec- tion 2102. In the second sentence, the words ‘‘the provi- sions of this title governing the competitive service’’ are substituted for ‘‘this act’’. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 3362. Promotion; effect of incentive award An agency, in qualifying and selecting an em- ployee for promotion, shall give due weight to an incentive award under chapter 45 of this title. For the purpose of this section, ‘‘agency’’ and ‘‘employee’’ have the meanings given them by section 4501 of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2123(f). Sept. 1, 1954, ch. 1208, § 304(f), 68 Stat. 1113. The word ‘‘incentive’’ is added for clarification. The second sentence is added on authority of former section 2122, which is carried into section 4501. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 3363. Preference eligibles; promotion; physical qualifications; waiver In determining qualifications of a preference eligible for promotion to another position in the competitive service, an Executive agency, or the government of the District of Columbia, the Of- fice of Personnel Management or other exam- ining 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 accred- ited physician, the preference eligible is phys- ically 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 Sen- ate. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 427; Pub. L. 94–183, § 2(5), Dec. 31, 1975, 89 Stat. 1057; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 854 (1st 2 sentences, so much as relates to promotion). June 27, 1944, ch. 287, § 5 (1st 2 sentences, so much as relates to promotion), 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