5 U.S.C. § 3323 — Automatic separations; reappointment; re-

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. Page 400 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3324 HISTORICAL AND REVISION NOTES—CONTINUED Derivation U.S. Code Revised Statutes and Statutes at Large (c) ............. 22 U.S.C. 915(c). Sept. 8, 1960, Pub. L. 86–723, § 10(d), 74 Stat. 832. (d) ............. 33 U.S.C. 544a, 701l. June 20, 1938, ch. 535, § 5, 52 Stat. 805. In subsection (a), the words ‘‘On and after July 1, 1932’’ are omitted as executed. The words ‘‘heretofore or hereafter’’ are omitted as unnecessary. The words ‘‘in the civil service’’ are substituted for ‘‘civilian serv- ice in any branch or service of the United States Gov- ernment’’ and ‘‘to any appointive office, position, or employment under the United States’’ in view of the definition of ‘‘civil service’’ in section 2101. In subsection (b), the words ‘‘receiving annuity from the Civil Service Retirement and Disability Fund’’ are substituted for ‘‘heretofore or hereafter retired under this chapter’’. The word ‘‘authority’’ is substituted for ‘‘officer’’ in recognition of the several appointing au- thorities named in section 2105(a)(1). In subsection (c), the words ‘‘Notwithstanding sub- section (a) of this section’’ are substituted for ‘‘Not- withstanding the provisions of sections 62 and 715a of title 5’’ to reflect the codification of former section 715a in subsection (a) of this section and in view of the repeal of section 62 of title 5 by § 402(a)(7) of the Act of Aug. 19, 1964, Pub. L. 88–448, 78 Stat. 492. The words ‘‘heretofore or hereafter’’ and ‘‘hereafter’’ are omitted as unnecessary. The words ‘‘in a position in the civil service’’ are substituted for ‘‘in Federal Government service in any appointive position’’ in view of the defi- nition of ‘‘civil service’’ in section 2101. The word ‘‘au- thority’’ is substituted for ‘‘officer’’ in recognition of the several appointing authorities named in section 2105(a)(1). In subsection (d), the words ‘‘Notwithstanding sub- section (a) of this section’’ are substituted for ‘‘The provisions of section 715a of title 5 shall not be so con- strued as to prevent’’ to reflect the codification of former section 715a in subsection (a) of this section, and to conform to the style of this section. The words ‘‘under section 569a of title 33’’ are substituted for ‘‘under agreement as authorized by sections 569a, 584a and 607a of title 33’’ on authority of the provision con- tained in section 569a of title 33. The word ‘‘employee’’ is coextensive with and substituted for ‘‘civilian em- ployee’’ in view of the definition of ‘‘employee’’ in sec- tion 2105. The last sentence is restated for clarity. 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 REFERENCES IN TEXT Section 812 of the Foreign Service Act of 1980, re- ferred to in subsec. (c), is classified to section 4052 of Title 22, Foreign Relations and Intercourse. AMENDMENTS 1992—Subsec. (b)(1). Pub. L. 102–378 substituted ‘‘an- nuitant, as defined by section 8331 or 8401,’’ for ‘‘annu- itant as defined by section 8331 of this title’’. 1984—Subsec. (b). Pub. L. 98–224 designated existing provisions as par. (1), substituted ‘‘the annuitant’’ for ‘‘he’’ and inserted ‘‘, other than an annuitant re- appointed under paragraph (2) of this subsection,’’, and added par. (2). 1980—Subsec. (c). Pub. L. 96–465 substituted ‘‘member of the Foreign Service retired under section 812 of the Foreign Service Act of 1980’’ for ‘‘Foreign Service offi- cer retired under section 1001 or 1002 of title 22 or a For- eign Service staff officer or employee retired under sec- tion 1063 of title 22’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–465 effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as an Effective Date note under section 3901 of Title 22, Foreign Relations and Intercourse. § 3324. Appointments to positions classified above GS–15 (a) An appointment to a position classified above GS–15 pursuant to section 5108 may be made only on approval of the qualifications of the proposed appointee by the Director of the Office of Personnel Management on the basis of qualification standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director. This sec- tion does not apply to a position— (1) to which appointment is made by the Chief Judge of the United States Tax Court; (2) to which appointment is made by the President; (3) to which appointment is made by the Li- brarian of Congress; or (4) the incumbent of which is paid from— (A) appropriations for the Executive Office of the President under the heading ‘‘The White House Office’’, ‘‘Special Projects’’, ‘‘Council of Economic Advisers’’, or ‘‘Na- tional Security Council’’; or (B) funds appropriated to the President under the heading ‘‘Emergency Fund for the President’’ by the Treasury, Post Office, and Executive Office Appropriation Act, 1966, or a later statute making appropriations for the same purpose. (b) The Office may prescribe regulations nec- essary for the administration of this section. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 90–83, § 1(10), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(17), Aug. 14, 1979, 93 Stat. 382; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(9)(C)(i), (ii)], Nov. 5, 1990, 104 Stat. 1427, 1441; Pub. L. 102–378, § 2(11), Oct. 2, 1992, 106 Stat. 1347; Pub. L. 110–372, § 2(c)(2), Oct. 8, 2008, 122 Stat. 4044.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1105(i). June 20, 1958, Pub. L. 85–462, § 10 ‘‘(i)’’, 72 Stat. 213. Sept. 13, 1960, Pub. L. 86–768, 74 Stat. 910. In subsection (a), the words ‘‘in GS–16, 17, and 18’’ are substituted for ‘‘in grades 16, 17, and 18 of the General Schedule’’. In subsection (a)(2), the words ‘‘by the President’’ are coextensive with and substituted for ‘‘by the President alone or by the President by and with the advice and consent of the Senate’’. In subsection (a)(4)(A), the words ‘‘Office of Emer- gency Planning’’ are substituted for ‘‘Office of Defense Mobilization’’ on authority of 1958 Reorg. Plan No. 1, § 2(a), effective July 1, 1958, 72 Stat. 1799, as amended Aug. 26, 1958, Pub. L. 85–763, 72 Stat. 861, and Sept. 22, 1961, Pub. L. 87–296, 75 Stat. 630. Reference to ‘‘Presi- dent’s Advisory Committee on Government Organiza-