5 U.S.C. § 3382 — Involuntary separation for retirement

Page 434 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3381 1 See References in Text note below. By virtue of the authority vested in me by section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows: SECTION 1. The Office of Personnel Management is hereby designated and empowered to exercise, without the approval, ratification, or other action of the Presi- dent, the following: (a) The authority of the President under section 3376 of title 5 of the United States Code [this section] to pre- scribe regulations for the administration of subchapter VI, ‘‘Assignments to and from States,’’ of chapter 33 of that title [this chapter]. (b) The authority of the President under section 205 (a)(4) of the Federal Civil Defense Act of 1950, as amended ([former] 50 U.S.C. App. 2286(a)(4)), and as af- fected by Reorganization Plan No. 1 of 1958 (72 Stat. 1799) [set out in the Appendix to this title], relating to the establishment and maintenance of personnel stand- ards on the merit basis. SEC. 2. To the extent that section 1(b) of this order is inconsistent with the provisions of Executive Order No. 10952 of July 20, 1961, as amended, section 1(b) shall con- trol. SUBCHAPTER VII—AIR TRAFFIC CONTROLLERS § 3381. Training (a) An air traffic controller with 5 years of service as a controller who is to be removed as a controller because the Secretary has deter- mined— (1) he is medically disqualified for duties as a controller; (2) he is unable to maintain technical pro- ficiency as a controller; or (3) such removal is necessary for the preser- vation of the physical or mental health of the controller; is entitled to not more than the full-time equiv- alent of 2 years of training. (b) During a period of training under this sec- tion, a controller shall be— (1) retained at his last assigned grade and rate of basic pay as a controller; (2) entitled to each increase in rate of basic pay provided under law; and (3) excluded from staffing limitations other- wise applicable. (c) Upon completion of training under this sec- tion, a controller may be— (1) assigned to other duties in the Executive agency in which the controller is employed; (2) released for transfer to another Executive agency; or (3) involuntarily separated from the service. The involuntary separation of a controller under this subsection is not a removal for cause on charges of misconduct, delinquency, or ineffi- ciency for purposes of section 5595 or section 8336 of this title. (d) The Secretary, without regard to section 3324(a) and (b) of title 31, may pay, or reimburse a controller for, all or part of the necessary ex- penses of training provided under this section, including expenses authorized to be paid under chapter 41 and subchapter I of chapter 57 of this title, and the costs of other services or facilities directly related to the training of a controller. (e) Except as provided by subsection (d) of this section, the provisions of chapter 41 of this title, other than sections 4105, 4107(a) and (b),1 and 4111, shall not apply to training under this sec- tion. (f) The provisions of this section shall not oth- erwise affect the authority of the Secretary to provide training under chapter 41 of this title or under any other provision of law. (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 142; amended Pub. L. 96–347, § 1(b), (c)(1), Sept. 12, 1980, 94 Stat. 1150; Pub. L. 97–258, § 3(a)(7), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 103–226, § 2(b)(1), Mar. 30, 1994, 108 Stat. 112.) Editorial Notes REFERENCES IN TEXT For definition of Secretary, referred to in subsec. (a), see section 2109 of this title. Subsecs. (a) and (b) of section 4107 of this title, re- ferred to in subsec. (e), were struck out, and subsecs. (c) and (d) of section 4107 were redesignated (a) and (b), re- spectively, by Pub. L. 103–226, § 2(a)(5)(B), Mar. 30, 1994, 108 Stat. 112. Subsequently, section 4107 was amended generally by Pub. L. 107–296, title XIII, § 1331(a), Nov. 25, 2002, 116 Stat. 2298. AMENDMENTS 1994—Subsec. (e). Pub. L. 103–226 substituted ‘‘4105,’’ for ‘‘4105(a),’’. 1982—Subsec. (d). Pub. L. 97–258 substituted ‘‘section 3324(a) and (b)’’ for ‘‘section 529’’. 1980—Subsec. (a). Pub. L. 96–347, § 1(b), substituted ‘‘Secretary’’ for ‘‘Secretary of Transportation’’. Subsec. (c)(1). Pub. L. 96–347, § 1(c)(1), substituted ‘‘in the Executive agency in which the controller is em- ployed’’ for ‘‘in the Department of Transportation’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–226, § 2(c), Mar. 30, 1994, 108 Stat. 112, pro- vided that: ‘‘The amendments made by this section [amending this section and sections 4101, 4103, 4105, 4107, 4108, 4113, and 4118 of this title and repealing sections 4106 and 4114 of this title] shall become effective on the date of enactment of this Act [Mar. 30, 1994].’’ EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title. EFFECTIVE DATE Pub. L. 92–297, § 10, May 16, 1972, 86 Stat. 145, provided that: ‘‘This Act [enacting this subchapter and section 2109 of this title, amending sections 3307, 8332, 8334 to 8336, 8339, 8341, 8344 of this title, enacting provisions set out as notes under this section and section 8335 of this title, and repealing provisions set out as a note under section 3307 of this title] shall become effective at the beginning of the ninetieth day after the date of enact- ment of this Act [May 16, 1972].’’ REPORT TO CONGRESS Pub. L. 92–297, § 9, May 16, 1972, 86 Stat. 145, directed the Secretary of Transportation to report to Congress no later than 5 years after May 16, 1972, concerning his operations under the amendments made by Pub. L. 92–297, including a detailed statement of the effective- ness of Pub. L. 92–297 in meeting the needs of the Air Traffic Controller career program and of the air traffic control system plus recommendations for the manage- ment of the program or the system. § 3382. Involuntary separation for retirement An air traffic controller who is eligible for im- mediate retirement under section 8336 of this Page 435 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3384 title may be separated involuntarily from the service if the Secretary determines that the sep- aration of the controller is necessary in the in- terest of— (1) aviation safety; (2) the efficient control of air traffic; or (3) the preservation of the physical or men- tal health of the controller. Chapter 75 of this title does not apply to a deter- mination or action under this section. Separa- tion under this section shall not become final, without the consent of the controller, until the last day of the second month following the day the controller receives a notification of the de- termination by the Secretary under this section, or, if a review is requested under section 3383 of this title, the last day of the month in which a final decision is issued by a board of review under section 3383(c) of this title, whichever is later. A controller who is to be separated under this section is entitled to training under section 3381 of this title. Separation of such a controller who elects to receive training under section 3381 shall not become final until the last day of the month following the completion of his training. (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 142; amended Pub. L. 96–347, § 1(b), Sept. 12, 1980, 94 Stat. 1150.) Editorial Notes REFERENCES IN TEXT For definition of Secretary, referred to in text, see section 2109 of this title. AMENDMENTS 1980—Pub. L. 96–347 in provisions preceding par. (1) substituted ‘‘Secretary determines’’ for ‘‘Secretary of Transportation determines’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title. EFFECTIVE DATE Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under sec- tion 3381 of this title. § 3383. Determinations; review procedures (a) An air traffic controller subject to a deter- mination by the Secretary under section 3381(a) or section 3382 of this title, shall be furnished a written notice of the determination and the rea- sons therefor, and a notification that the con- troller has 15 days after the receipt of the notifi- cation within which to file a written request for reconsideration of the determination. Unless the controller files such a request within the 15 days, or unless the determination is rescinded by the Secretary within the 15 days, the deter- mination shall be final. (b) If the Secretary does not rescind his deter- mination within 15 days after his receipt of the written request filed by the controller under subsection (a) of this section, the Secretary shall immediately convene a board of review, consisting of— (1) a person designated by the controller; (2) a representative of the Executive agency in which the controller is employed designated by the Secretary; and (3) a representative of the Merit Systems Protection Board, designated by the Chair- man, who shall serve as chairman of the board of review. (c) The board of review shall review evidence supporting and inconsistent with the determina- tion of the Secretary and, within a period of 30 days after being convened, shall issue its find- ings and furnish copies thereof to the Secretary and the controller. The board may approve or rescind the determination of the Secretary. A decision by the board under this subsection is final. The Secretary shall take such action as may be necessary to carry out the decision of the board. (d) Except as provided under section 3382 of this title, the review procedure of this section is in addition to any other review or appeal proce- dures provided under any other provision of law, but is the sole and exclusive administrative remedy available to a controller within the Ex- ecutive agency in which such controller is em- ployed. (Added Pub. L. 92–297, § 3(a), May 16, 1972, 86 Stat. 143; amended Pub. L. 95–454, title IX, § 906(a)(6), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 96–347, § 1(b), (c)(2), (3), Sept. 12, 1980, 94 Stat. 1150.) Editorial Notes REFERENCES IN TEXT For definition of Secretary, referred to in text, see section 2109 of this title. AMENDMENTS 1980—Subsec. (a). Pub. L. 96–347, § 1(b), substituted ‘‘Secretary under’’ for ‘‘Secretary of Transportation under’’. Subsec. (b)(2). Pub. L. 96–347, § 1(c)(2), substituted ‘‘the Executive agency in which the controller is em- ployed’’ for ‘‘the Department of Transportation’’. Subsec. (d). Pub. L. 96–347, § 1(c)(3), substituted ‘‘with- in the Executive agency in which such controller is em- ployed’’ for ‘‘within the Department of Transpor- tation’’. 1978—Subsec. (b)(3). Pub. L. 95–454 substituted ‘‘Merit Systems Protection Board’’ for ‘‘Civil Service Commis- sion’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–347 effective on 90th day after Sept. 12, 1980, see section 3 of Pub. L. 96–347, set out as a note under section 2109 of this title. 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. EFFECTIVE DATE Section effective on 90th day after May 16, 1972, see section 10 of Pub. L. 92–297, set out as a note under sec- tion 3381 of this title. § 3384. Regulations The Secretary is authorized to issue regula- tions to carry out the provisions of this sub- chapter.