5 U.S.C. § 3322 — Voluntary separation before resolution of

Page 398 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3321 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 2018—Pub. L. 115–232 substituted ‘‘sections 3308 through 3319’’ for ‘‘sections 3308–3318’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective on the date on which the Director of the Office of Personnel Man- agement issues final regulations for implementation, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as an Effective Date of Repeal note under section 3317 of this title. ASSISTANCE OF UNITED STATES CIVIL SERVICE COMMIS- SION IN DEVELOPING MERIT SYSTEM FOR DISTRICT OF COLUMBIA Pub. L. 93–198, title VII, § 734, Dec. 24, 1973, 87 Stat. 823, authorized the United States Civil Service Com- mission to advise and assist the District of Columbia Mayor and Council in the further development of the merit system or systems required by the District of Co- lumbia charter, which was approved on May 7, 1974, and authorized the Commission to enter into agreements with the District government to make available its reg- isters of eligibles as a recruiting source to fill District positions as needed, with the costs of any specific serv- ices furnished by the Civil Service Commission to be compensated for under the provisions of section 685a of former Title 31, Money and Finance [31 U.S.C. 1537]. § 3321. Competitive service; probationary period (a) The President may take such action, in- cluding the issuance of rules, regulations, and directives, as shall provide as nearly as condi- tions of good administration warrant for a pe- riod of probation— (1) before an appointment in the competitive service becomes final; and (2) before initial appointment as a supervisor or manager becomes final. (b) An individual— (1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and (2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section, shall be returned to a position of no lower grade and pay than the position from which the indi- vidual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance. (c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Admin- istration Senior Executive Service. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 95–454, title III, § 303(a), Oct. 13, 1978, 92 Stat. 1146; Pub. L. 100–325, § 2(d), May 30, 1988, 102 Stat. 581; Pub. L. 114–92, div. A, title XI, § 1105(c)(1), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(A), Dec. 27, 2021, 135 Stat. 1950.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 633(2)4. Jan. 16, 1883, ch. 27. § 2(2)4, 22 Stat. 404. The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. Wording is changed because in practice an appointment is not made after probation. The words ‘‘or employment’’ are omitted as included within ‘‘appointment’’. 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 2021—Subsec. (c). Pub. L. 117–81 struck out ‘‘, or any individual covered by section 1599e of title 10’’ before period at end. 2015—Subsec. (c). Pub. L. 114–92 inserted ‘‘, or any in- dividual covered by section 1599e of title 10’’ before pe- riod at end. 1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service. 1978—Pub. L. 95–454 substituted ‘‘probationary pe- riod’’ for ‘‘probation; period of’’ in section catchline, designated existing provisions as subsec. (a), sub- stituted provisions authorizing the President to take necessary action, for provisions authorizing the Presi- dent to prescribe rules, and added subsecs. (b) and (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applied as if effective Dec. 31, 2022, to correspond to the effective date of the repeal of section 1599e of Title 10, Armed Forces, to re- flect the probable intent of Congress. See Effective Date of Repeal note under section 1599e of Title 10. 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. § 3322. Voluntary separation before resolution of personnel investigation (a) With respect to any employee occupying a position in the competitive service or the ex- cepted service who is the subject of a personnel investigation and resigns from Government em- ployment prior to the resolution of such inves- tigation, the head of the agency from which such employee so resigns shall, if an adverse finding was made with respect to such employee pursuant to such investigation, make a perma- nent notation in the employee’s official per- sonnel record file. The head shall make such no- tation not later than 40 days after the date of the resolution of such investigation. (b) Prior to making a permanent notation in an employee’s official personnel record file under subsection (a), the head of the agency shall— (1) notify the employee in writing within 5 days of the resolution of the investigation and Page 399 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3323 provide such employee a copy of the adverse finding and any supporting documentation; (2) provide the employee with a reasonable time, but not less than 30 days, to respond in writing and to furnish affidavits and other documentary evidence to show why the ad- verse finding was unfounded (a summary of which shall be included in any notation made to the employee’s personnel file under sub- section (d)); and (3) provide a written decision and the spe- cific reasons therefore to the employee at the earliest practicable date. (c) An employee is entitled to appeal the deci- sion of the head of the agency to make a perma- nent notation under subsection (a) to the Merit Systems Protection Board under section 7701. (d)(1) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the agency head shall make a no- tation in the employee’s official personnel record file indicating that an appeal disputing the notation is pending not later than 2 weeks after the date on which such appeal was filed. (2) If the head of the agency is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the nota- tion made under paragraph (1) from the employ- ee’s official personnel record file. (3) If the employee is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) and the notation of an adverse finding made under subsection (a) from the employee’s official personnel record file. (e) In this section, the term ‘‘personnel inves- tigation’’ includes— (1) an investigation by an Inspector General; and (2) an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service under chapter 43 or chapter 75. (Added Pub. L. 114–328, div. A, title XI, § 1140(a), Dec. 23, 2016, 130 Stat. 2470.) Editorial Notes PRIOR PROVISIONS A prior section 3322, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422, related to temporary appointments after age 70 in the competitive service, prior to repeal by Pub. L. 95–256, § 5(b)(1), Apr. 6, 1978, 92 Stat. 191, effective Sept. 30, 1978. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 114–328, div. A, title XI, § 1140(b), Dec. 23, 2016, 130 Stat. 2471, provided that: ‘‘The amendment made by subsection (a) [enacting this section] shall apply to any employee described in section 3322 of title 5, United States Code, (as added by such subsection) who leaves the service after the date of enactment of this Act [Dec. 23, 2016].’’ § 3323. Automatic separations; reappointment; re- employment of annuitants (a) An individual who reaches the retirement age prescribed for automatic separation applica- ble to him may not be continued in the civil service or in the government of the District of Columbia. An individual separated on account of age under a statute or regulation providing for retirement on account of age is not eligible for appointment in the civil service or in the gov- ernment of the District of Columbia. The Presi- dent, when in his judgment the public interest so requires, may except an individual from this subsection by Executive order. This subsection does not apply to an individual named by a stat- ute providing for the continuance of the indi- vidual in the civil service or in the government of the District of Columbia. (b)(1) Notwithstanding other statutes, an an- nuitant, as defined by section 8331 or 8401, re- ceiving annuity from the Civil Service Retire- ment and Disability Fund is not barred by rea- son of his retired status from employment in an appointive position for which the annuitant is qualified. An annuitant so reemployed, other than an annuitant reappointed under paragraph (2) of this subsection, serves at the will of the appointing authority. (2) Subject to such regulations as the Director of the Office of Personnel Management may pre- scribe, any annuitant to whom the first sentence of paragraph (1) of this subsection applies and who has served as an administrative law judge pursuant to an appointment under section 3105 of this title may be reappointed an administra- tive law judge under such section for a specified period or for such period as may be necessary for such administrative law judge to conduct and complete the hearing and disposition of one or more specified cases. The provisions of this title that apply to or with respect to administrative law judges appointed under section 3105 of this title shall apply to or with respect to adminis- trative law judges reappointed under such sec- tion pursuant to the first sentence of this para- graph. (c) Notwithstanding subsection (a) of this sec- tion, a member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980 is not barred by reason of his retired status from employment in a position in the civil serv- ice for which he is qualified. An annuitant so re- employed serves at the will of the appointing authority. (d) Notwithstanding subsection (a) of this sec- tion, the Chief of Engineers of the Army, under section 569a of title 33, may employ a retired employee whose expert assistance is needed in connection with river and harbor or flood con- trol works. There shall be deducted from the pay of an employee so reemployed an amount equal to the annuity or retired pay allocable to the pe- riod of actual employment. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 96–465, title II, § 2314(a), Oct. 17, 1980, 94 Stat. 2167; Pub. L. 98–224, § 2, Mar. 2, 1984, 98 Stat. 47; Pub. L. 102–378, § 2(10), Oct. 2, 1992, 106 Stat. 1347.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large (a) ............. 5 U.S.C. 715a. June 30, 1932, ch. 314, § 204, 47 Stat. 404. (b) ............. 5 U.S.C. 2263(a). July 31, 1956, ch. 804, § 401 ‘‘Sec. 13(a)’’, 70 Stat. 757.