5 U.S.C. § 7542 — Actions covered

Page 911 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7542 (3) is a citizen of the United States; is entitled, after suspension and before removal, to— (A) a written statement of the charges against him within 30 days after suspension, which may be amended within 30 days there- after and which shall be stated as specifically as security considerations permit; (B) an opportunity within 30 days thereafter, plus an additional 30 days if the charges are amended, to answer the charges and submit af- fidavits; (C) a hearing, at the request of the em- ployee, by an agency authority duly con- stituted for this purpose; (D) a review of his case by the head of the agency or his designee, before a decision ad- verse to the employee is made final; and (E) a written statement of the decision of the head of the agency. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 529.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 22–1 (less 3d–5th provisos). Aug. 26, 1950, ch. 803, § 1 (less 3d–5th provisos), 64 Stat. 476. July 29, 1958, Pub. L. 85–568, § 301(c), 72 Stat. 432. The application of this section is covered by the defi- nition in section 7531. In subsection (a), the words ‘‘Notwithstanding the provisions of section 652 of this title’’ are omitted but are carried into section 7501(c). The words ‘‘in his abso- lute discretion’’ are omitted as unnecessary in view of the permissive grant of authority. The word ‘‘rein- stated’’ is omitted as it is commonly used in other stat- utes to denote action different from that referred to here. In subsections (b) and (c), the words ‘‘remove’’ and ‘‘removal’’ are coextensive with and substituted for ‘‘terminate the employment’’, ‘‘termination’’, and ‘‘employment is terminated’’, as appropriate. 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. § 7533. Effect on other statutes This subchapter does not impair the powers vested in the Atomic Energy Commission by chapter 23 of title 42, or the requirement in sec- tion 2201(d) of title 42 that adequate provision be made for administrative review of a determina- tion to dismiss an employee of the Atomic En- ergy Commission. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 529.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 22–2. Aug. 26, 1950, ch. 803, § 2, 64 Stat. 477. 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. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See, also, Transfer of Func- tions notes set out under those sections. SUBCHAPTER V—SENIOR EXECUTIVE SERVICE § 7541. Definitions For the purpose of this subchapter— (1) ‘‘employee’’ means a career appointee in the Senior Executive Service who— (A) has completed the probationary period prescribed under section 3393(d) of this title; or (B) was covered by the provisions of sub- chapter II of this chapter immediately be- fore appointment to the Senior Executive Service; and (2) ‘‘suspension’’ has the meaning set forth in section 7501(2) of this title. (Added Pub. L. 95–454, title IV, § 411(2), Oct. 13, 1978, 92 Stat. 1174; amended Pub. L. 114–92, div. A, title XI, § 1105(c)(5), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(E), Dec. 27, 2021, 135 Stat. 1950.) Editorial Notes AMENDMENTS 2021—Par. (1)(A). Pub. L. 117–81 struck out ‘‘or section 1599e of title 10’’ after ‘‘section 3393(d) of this title’’. 2015—Par. (1)(A). Pub. L. 114–92 inserted ‘‘or section 1599e of title 10’’ after ‘‘this title’’. 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 Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title. § 7542. Actions covered This subchapter applies to a removal from the civil service or suspension for more than 14 days, but does not apply to an action initiated under section 1215 of this title, to a suspension or removal under section 7532 of this title, or to a removal under section 3592 or 3595 of this title. (Added Pub. L. 95–454, title IV, § 411(2), Oct. 13, 1978, 92 Stat. 1174; amended Pub. L. 97–35, title XVII, § 1704(d)(1), Aug. 13, 1981, 95 Stat. 758; Pub. L. 101–12, § 9(a)(2), Apr. 10, 1989, 103 Stat. 35.) Editorial Notes AMENDMENTS 1989—Pub. L. 101–12 substituted ‘‘1215’’ for ‘‘1206’’. 1981—Pub. L. 97–35 inserted reference to section 3595 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–12 effective 90 days fol- lowing Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as a note under section 1201 of this title. Page 912 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 7543 EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 effective June 1, 1981, with certain exceptions and conditions, see section 1704(e) of Pub. L. 97–35, set out as an Effective Date note under section 3595 of this title. EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title. § 7543. Cause and procedure (a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reas- signment or to accompany a position in a trans- fer of function. (b) An employee against whom an action cov- ered by this subchapter is proposed is entitled to— (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be im- posed, stating specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evi- dence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and specific reasons therefor at the earliest practicable date. (c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section. (d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under sec- tion 7701 of this title. (e) Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request. (Added Pub. L. 95–454, title IV, § 411(2), Oct. 13, 1978, 92 Stat. 1174; amended Pub. L. 97–35, title XVII, § 1704(d)(2), Aug. 13, 1981, 95 Stat. 758; Pub. L. 98–615, title III, § 304(c), Nov. 8, 1984, 98 Stat. 3219.) Editorial Notes AMENDMENTS 1984—Subsec. (a). Pub. L. 98–615 inserted reference to failure to accept a directed reassignment or to accom- pany a position in a transfer of function. 1981—Subsec. (a). Pub. L. 97–35 substituted ‘‘mis- conduct, neglect of duty, or malfeasance’’ for ‘‘such cause as will promote the efficiency of the service’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–615 effective Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under section 3393 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–35 effective June 1, 1981, with certain exceptions and conditions, see section 1704(e) of Pub. L. 97–35, set out as an Effective Date note under section 3595 of this title. EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454, set out as a note under section 3131 of this title. CHAPTER 77—APPEALS Sec. 7701. Appellate procedures. 7702. Actions involving discrimination. 7703. Judicial review of decisions of the Merit Sys- tems Protection Board. Editorial Notes AMENDMENTS 1978—Pub. L. 95–454, title II, § 205, Oct. 13, 1978, 92 Stat. 1138, substituted ‘‘Appellate procedures’’ for ‘‘Ap- peals of preference eligibles’’ in item 7701, and added items 7702 and 7703. § 7701. Appellate procedures (a) An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is ap- pealable to the Board under any law, rule, or regulation. An appellant shall have the right— (1) to a hearing for which a transcript will be kept; and (2) to be represented by an attorney or other representative. Appeals shall be processed in accordance with regulations prescribed by the Board. (b)(1) The Board may hear any case appealed to it or may refer the case to an administrative law judge appointed under section 3105 of this title or other employee of the Board designated by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an em- ployee experienced in hearing appeals, or an ad- ministrative law judge. The Board, administra- tive law judge, or other employee (as the case may be) shall make a decision after receipt of the written representations of the parties to the appeal and after opportunity for a hearing under subsection (a)(1) of this section. A copy of the decision shall be furnished to each party to the appeal and to the Office of Personnel Manage- ment. (2)(A) If an employee or applicant for employ- ment is the prevailing party in an appeal under this subsection, the employee or applicant shall be granted the relief provided in the decision ef- fective upon the making of the decision, and re- maining in effect pending the outcome of any petition for review under subsection (e), unless— (i) the deciding official determines that the granting of such relief is not appropriate; or