5 U.S.C. § 3595 — Reduction in force in the Senior Execu-

Page 458 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3594 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title. § 3594. Guaranteed placement in other personnel systems (a) A career appointee who was appointed from a civil service position held under a career or ca- reer-conditional appointment (or an appoint- ment of equivalent tenure, as determined by the Office of Personnel Management) and who, for reasons other than misconduct, neglect of duty, or malfeasance, is removed from the Senior Ex- ecutive Service during the probationary period under section 3393(d) of this title, shall be enti- tled to be placed in a civil service position (other than a Senior Executive Service position) in any agency. (b) A career appointee who has completed the probationary period under section 3393(d) of this title, and who— (1) is removed from the Senior Executive Service for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title; or (2) is removed from the Senior Executive Service under paragraph (4) or (5) of section 3595(b) of this title; shall be entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency. (c)(1) For purposes of subsections (a) and (b) of this section— (A) the position in which any career ap- pointee is placed under such subsections shall be a continuing position at GS–15 of the Gen- eral Schedule or classified above GS–15 pursu- ant to section 5108, or an equivalent position, and, in the case of a career appointee referred to in subsection (a) of this section, the career appointee shall be entitled to an appointment of a tenure equivalent to the tenure of the ap- pointment held in the position from which the career appointee was appointed; (B) any career appointee placed under sub- section (a) or (b) of this section shall be enti- tled to receive basic pay at the highest of— (i) the rate of basic pay in effect for the position in which placed; (ii) the rate of basic pay in effect at the time of the placement for the position the career appointee held in the civil service im- mediately before being appointed to the Sen- ior Executive Service; or (iii) the rate of basic pay in effect for the career appointee immediately before being placed under subsection (a) or (b) of this sec- tion; and (C) the placement of any career appointee under subsection (a) or (b) of this section may not be made to a position which would cause the separation or reduction in grade of any other employee. (2) An employee who is receiving basic pay under paragraph (1)(B)(ii) or (iii) of this sub- section is entitled to have the basic pay rate of the employee increased by 50 percent of the amount of each increase in the maximum rate of basic pay for the grade of the position in which the employee is placed under subsection (a) or (b) of this section until the rate is equal to the rate in effect under paragraph (1)(B)(i) of this subsection for the position in which the em- ployee is placed. (Added Pub. L. 95–454, title IV, § 404(b), Oct. 13, 1978, 92 Stat. 1166; amended Pub. L. 98–615, title III, § 303(b), Nov. 8, 1984, 98 Stat. 3217; Pub. L. 101–194, title V, § 506(b)(5), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(E)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 102–378, § 2(16), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 107–296, title XIII, § 1321(a)(2)(C), Nov. 25, 2002, 116 Stat. 2297.) Editorial Notes REFERENCES IN TEXT GS–15 of the General Schedule, referred to in subsec. (c)(1)(A), is set out under section 5332 of this title. AMENDMENTS 2002—Subsec. (b)(1). Pub. L. 107–296, § 1321(a)(2)(C)(i), inserted ‘‘or’’ at end. Subsec. (b)(2). Pub. L. 107–296, § 1321(a)(2)(C)(ii), struck out ‘‘or’’ at end. Subsec. (b)(3). Pub. L. 107–296, § 1321(a)(2)(C)(iii), struck out par. (3) which read as follows: ‘‘is removed from the Senior Executive Service for failure to be re- certified under section 3393a;’’. 1992—Subsec. (c)(1)(A). Pub. L. 102–378 substituted ‘‘section 5108,’’ for ‘‘section 5108,,’’. 1990—Subsec. (c)(1)(A). Pub. L. 101–509 substituted ‘‘at GS–15 of the General Schedule or classified above GS–15 pursuant to section 5108,’’ for ‘‘at GS–15 or above of the General Schedule’’. 1989—Subsec. (b)(3). Pub. L. 101–194 added par. (3). 1984—Subsec. (b). Pub. L. 98–615 inserted provision re- lating to career appointees removed from the Senior Executive Service under section 3595(b)(4) or (5) of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Do- mestic Security. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title. EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–615 effective following ex- piration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as a note under sec- tion 3393 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(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title. § 3595. Reduction in force in the Senior Execu- tive Service (a) An agency shall establish competitive pro- cedures for determining who shall be removed Page 459 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3595 from the Senior Executive Service in any reduc- tion in force of career appointees within that agency. The competitive procedures shall be de- signed to assure that such determinations are primarily on the basis of performance, as deter- mined under subchapter II of chapter 43 of this title. (b)(1) This subsection applies to any career ap- pointee who has successfully completed the pro- bationary period prescribed under section 3393(d) of this title. (2) Except as provided in paragraphs (4) and (5), a career appointee may not be removed from the Senior Executive Service due to a reduction in force within an agency. (3) A career appointee who, but for this sub- section, would be removed from the Senior Exec- utive Service due to a reduction in force within an agency— (A) is entitled to be assigned by the head of that agency to a vacant Senior Executive Service position for which the career ap- pointee is qualified; or (B) if the agency head certifies, in writing, to the Office of Personnel Management that no such position is available in the agency, shall be placed by the Office in any agency in any vacant Senior Executive Service position unless the head of that agency determines that the career appointee is not qualified for that position. The Office of Personnel Management shall take all reasonable steps to place a career appointee under subparagraph (B) and may require any agency to take any action which the Office con- siders necessary to carry out any such place- ment. (4) A career appointee who is not assigned under paragraph (3)(A) may be removed from the Senior Executive Service due to a reduction in force if the career appointee declines a reason- able offer for placement in a Senior Executive Service position under paragraph (3)(B). (5) A career appointee who is not assigned under paragraph (3)(A) may be removed from the Senior Executive Service due to a reduction in force if the career appointee is not placed in an- other Senior Executive Service position under paragraph (3)(B) within 45 days after the Office receives certification regarding that appointee under paragraph (3)(B). (c) A career appointee is entitled to appeal to the Merit Systems Protection Board under sec- tion 7701 of this title whether the reduction in force complies with the competitive procedures required under subsection (a). (d) For purposes of this section, ‘‘reduction in force’’ includes the elimination or modification of a position due to a reorganization, due to a lack of funds or curtailment of work, or due to any other factor. (e) The Office shall prescribe regulations under which the rights accorded to a career appointee in the event of a transfer of function are com- parable to the rights accorded to a competing employee under section 3503 of this title in the event of such a transfer. (Added Pub. L. 97–35, title XVII, § 1704(a)(1), Aug. 13, 1981, 95 Stat. 756; amended Pub. L. 97–346, § 5(a), (b), Oct. 15, 1982, 96 Stat. 1650; Pub. L. 98–615, title III, §§ 303(c), (d), 304(b), Nov. 8, 1984, 98 Stat. 3218, 3219.) Editorial Notes PRIOR PROVISIONS A prior section 3595, added Pub. L. 95–454, title IV, § 404(b), Oct. 13, 1978, 92 Stat. 1167, which related to pre- scribing regulations, was renumbered section 3596 by Pub. L. 97–35, title XVII, § 1704(a)(1), Aug. 13, 1981, 95 Stat. 756. AMENDMENTS 1984—Subsec. (b)(3)(B). Pub. L. 98–615, § 303(c)(1), struck out the designation ‘‘(i)’’ before provisions relat- ing to placement in any agency in any vacant Execu- tive Service position, and struck out former cl. (ii), which had related to detailing by the Office of Per- sonnel Management to any vacant Senior Executive Service position for which the Office deemed the em- ployee to be qualified in any agency for a period not to exceed 60 days, and placement in such position by the Office after the period of such detail, unless the head of the agency determined that the career appointee was not qualified for such position. Subsec. (b)(4). Pub. L. 98–615, § 303(c)(2), struck out ‘‘and the civil service’’ after ‘‘removed from the Senior Executive Service’’, struck out the designation ‘‘(A)’’ before ‘‘the career appointee declines’’, and substituted a period for the semicolon and ‘‘or’’ at the end thereof. Former subpar. (B) redesignated par. (5). Subsec. (b)(5). Pub. L. 98–615, § 303(c)(2), redesignated former par. (4)(B) as (5), substituted ‘‘A career ap- pointee who is not assigned under paragraph (3)(A) may be removed from the Senior Executive Service due to a reduction in force if’’ for ‘‘subject to paragraph (5),’’, substituted ‘‘45 days’’ for ‘‘120 days’’, and struck out former par. (5), which had provided that persons who were career appointees as of May 31, 1981, could only be removed from the Senior Executive Service and the civil service due to a reduction in force after the 120- day period if the Director of the Office of Personnel Management certified to certain Congressional com- mittees that the Office had taken all reasonable steps to place the appointee but had been unable to do so due to the appointee’s highly specialized skills and experi- ence. Subsec. (c). Pub. L. 98–615, § 303(d), struck out the des- ignation ‘‘(1)’’ before ‘‘whether the reduction’’, and struck out pars. (2) and (3), which had provided, respec- tively, the right to appeal any removal under subsec. (b)(4)(A) and the right to appeal any nonappointment under subsec. (b)(3), and, in the event of such non- appointment, whether the Office of Personnel Manage- ment took all reasonable steps to achieve such place- ment and whether the agency correctly decided under subsec. (b)(3)(B) that the career appointee was not qualified for such placement. Subsec. (e). Pub. L. 98–615, § 304(b), added subsec. (e). 1982—Subsec. (b)(3)(B). Pub. L. 97–346, § 5(a), des- ignated as cl. (i) existing provisions relating to place- ment in any agency in any vacant Executive Service position, and added cl. (ii). Subsec. (c)(3). Pub. L. 97–346, § 5(b), designated as sub- par. (A) existing provisions relating to taking of all reasonable steps by Office of Personnel Management, and added subpar. (B). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 303(c), (d) of Pub. L. 98–615 ef- fective following expiration of 90-day period beginning on Nov. 8, 1984, and amendment by section 304(b) of 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 1982 AMENDMENT Pub. L. 97–346, § 5(c), Oct. 15, 1982, 96 Stat. 1650, pro- vided that: Page 460 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3595a 1 Another section 3598 is set out after this section. ‘‘(1) Except as provided in paragraph (2), the amend- ments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Oct. 15, 1982]. ‘‘(2) The amendments made by this section [amending this section] shall apply to an individual who is a ca- reer appointee on or after September 30, 1982, except that any individual who is a career appointee on Sep- tember 30, 1982, and who is described in section 3595(b)(3) of title 5, United States Code, may not be re- moved before December 15, 1982, due to a reduction in force, unless the removal is under section 3595(b)(4)(A) of such title on the grounds the individual declined a reasonable placement offer.’’ EFFECTIVE DATE Pub. L. 97–35, title XVII, § 1704(e), Aug. 13, 1981, 95 Stat. 758, provided that: ‘‘(1) Subject to paragraph (2), the amendments made by this section [enacting this section, redesignating former section 3595 as section 3596 of this title, and amending sections 3393, 3593, 7542, and 7543 of this title] shall be effective as of June 1, 1981. ‘‘(2)(A) Except as provided in subparagraph (B), the amendments made by this section shall apply to any career appointee removed from the civil service after May 31, 1981, and before the date of the enactment of this section [Aug. 13, 1981] if, not later than 14 days after such date of enactment, application therefor is made to the Office of Personnel Management and to the head of the Agency in which the appointee was em- ployed. ‘‘(B) The provisions of section 3595(a), as added by subsection (a)(1), shall take effect on the date of the en- actment of this Act [Aug. 13, 1981]. ‘‘(3) The effectiveness of the amendments made by this section shall be subject to section 415(b) of the Civil Service Reform Act of 1978 [Pub. L. 95–454, title IV, Oct. 13, 1978, 92 Stat. 1154] (5 U.S.C. 3131 note) to the same extent and manner as the amendments made by title IV of that Act.’’ § 3595a. Furlough in the Senior Executive Serv- ice (a) For the purposes of this section, ‘‘fur- lough’’ means the placement of a senior execu- tive in a temporary status in which the senior executive has no duties and is not paid when the placement in such status is by reason of insuffi- cient work or funds or for other nondisciplinary reasons. (b) An agency may furlough a career appointee only in accordance with regulations issued by the Office of Personnel Management. (c) A career appointee who is furloughed is en- titled to appeal to the Merit Systems Protection Board under section 7701 of this title. (Added Pub. L. 98–615, title III, § 306(c)(1), Nov. 8, 1984, 98 Stat. 3220.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective following expiration of 90-day period beginning on Nov. 8, 1984, see section 307 of Pub. L. 98–615, set out as an Effective Date of 1984 Amendment note under section 3393 of this title. § 3596. Regulations The Office of Personnel Management shall pre- scribe regulations to carry out the purpose of this subchapter. (Added Pub. L. 95–454, title IV, § 404(b), Oct. 13, 1978, 92 Stat. 1167, § 3595; renumbered § 3596, Pub. L. 97–35, title XVII, § 1704(a)(1), Aug. 13, 1981, 95 Stat. 756.) Editorial Notes AMENDMENTS 1981—Pub. L. 97–35 renumbered section 3596 of this title as this section. Statutory Notes and Related Subsidiaries 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(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title. SUBCHAPTER VI—REEMPLOYMENT FOL- LOWING LIMITED APPOINTMENT IN THE FOREIGN SERVICE § 3597. Reemployment following limited appoint- ment in the Foreign Service An employee of any agency who accepts, with the consent of the head of that agency, a limited appointment in the Foreign Service under sec- tion 309 of the Foreign Service Act of 1980 is en- titled, upon the expiration of that appointment, to be reemployed in that employee’s former po- sition or in a corresponding or higher position in that agency. Upon reemployment under this sec- tion, an employee shall be entitled to any with- in-grade increases in pay which the employee would have received if the employee had re- mained in the former position in the agency. (Added Pub. L. 96–465, title II, § 2301(a), Oct. 17, 1980, 94 Stat. 2164.) Editorial Notes REFERENCES IN TEXT Section 309 of the Foreign Service Act of 1980, re- ferred to in text, is classified to section 3949 of Title 22, Foreign Relations and Intercourse. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as a note under section 3901 of Title 22, Foreign Relations and Intercourse. SUBCHAPTER VII—RETENTION OF RETIRED SPECIALIZED EMPLOYEES AT THE FED- ERAL BUREAU OF INVESTIGATION Editorial Notes CODIFICATION Pub. L. 108–447, div. B, title I, § 114(a), Dec. 8, 2004, 118 Stat. 2869, and Pub. L. 108–458, title II, § 2004(a), Dec. 17, 2004, 118 Stat. 3704, amended chapter identically adding subchapter VII heading. § 3598.1 Federal Bureau of Investigation Reserve Service (a) ESTABLISHMENT.—The Director of the Fed- eral Bureau of Investigation may provide for the establishment and training of a Federal Bureau