§ 3393. Career appointments

Footnotes

1. 1 So in original.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1978

   Pub. L. 95–454 title IV § 403(a) · 92 Stat. 1111

   Enacted · 5 U.S.C. § 3393

   Added Pub. L. 95–454, title IV, § 403(a), Oct. 13, 1978, 92 Stat. 1161

   Source evidence

   Code source credit
   Added Pub. L. 95–454, title IV, § 403(a), Oct. 13, 1978, 92 Stat. 1161

   Enacted provision · exact public law section
   (a) Chapter 33 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter: “SUBCHAPTER VIII— APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE “§3391. Definitions “For the purpose of this subchapter, ‘agency’, ‘Senior Executive Service position’, ‘senior executive’, ‘career appointee’, ‘limited term appointee’, ‘limited emergency appointee’, ‘noncareer appointee’, and ‘general position’ have the meanings set forth in section 3132(a) of this title. Ante, p. 1155. “§3392. General appointment provisions “(a) Qualification standards shall be established by the head of Qualification standards, establishment. each agency for each Senior Executive Service position in the agency— “(1) in accordance with requirements established by the Office of Personnel Management, with respect to standards for career reserved positions, and “(2) after consultation with the Office, with respect to standards for general positions. “(b) Not more than 30 percent of the Senior Executive Service positions authorized under section 3133 of this title may at any time be Ante, p. 1158. filled by individuals who did not have 5 years of current continuous service in the civil service immediately preceding their initial appointment to the Senior Executive Service, unless the President certifies to the Congress that the limitation would hinder the efficiency of the Government. In applying the preceding sentence, any break in service of 3 days or less shall be disregarded. “(c) If a career appointee is appointed by the President, by and with the advice and consent of the Senate, to a civilian position in the executive branch which is not in the Senior Executive Service, and the rate of basic pay payable for which is equal to or greater than the rate payable for level V of the Executive Schedule, the career appointee 5 USC 5316. may elect (at such time and in such manner as the Office may prescribe) to continue to have the provisions of this title relating to basic pay, performance awards, awarding of ranks, severance pay, leave, and retirement apply as if the career appointee remained in the Senior Executive Service position from which he was appointed. Such provisions shall apply in lieu of the provisions which would otherwise apply— “(1) to the extent provided under regulations prescribed by the Office, and “(2) so long as the appointee continues to serve under such Presidential appointment. “(d) Appointment or removal of a person to or from any Senior Executive Service position in an independent regulatory commission shall not be subject, directly or indirectly, to review or approval by any officer or entity within the Executive Office of the President. “§3393. Career appointments “(a) Each agency shall establish a recruitment program, in accordance Recruitment program. with guidelines which shall be issued by the Office of Personnel Management, which provides for recruitment of career appointees from— “(1) all groups of qualified individuals within the civil service; or “(2) all groups of qualified individuals whether or not within the civil service. “(b) Each agency shall establish one or more executive resources Executive resources boards, establishment. boards, as appropriate, the members of which shall be appointed by the head of the agency from among employees of the agency. The boards shall, in accordance with merit staffing requirements established by the Office, conduct the merit staffing process for career appointees, including— “(1) reviewing the executive qualifications of each candidate for a position to be filled by a career appointee; and “(2) making written recommendations to the appropriate appointing authority concerning such candidates. “(c) (1) The Office shall establish one or more qualifications review Review boards, establishment. boards, as appropriate. It is the function of the boards to certify the executive qualifications of candidates for initial appointment as career appointees in accordance with regulations prescribed by the Office. Of the members of each board more than one-half shall be appointed from among career appointees. Appointments to such boards shall be made on a non-partisan basis, the sole selection criterion being the professional knowledge of public management and knowledge of the appropriate occupational fields of the intended appointee. “(2) The Office shall, in consultation with the various qualification Career appointees, criteria. review boards, prescribe criteria for establishing executive qualifications for appointment of career appointees. The criteria shall provide for— “(A) consideration of demonstrated executive experience; “(B) consideration of successful participation in a career executive development program which is approved by the Office; and “(C) sufficient flexibility to allow for the appointment of individuals who have special or unique qualities which indicate a likelihood of executive success and who would not otherwise be eligible for appointment. “(d) An individual’s initial appointment as a career appointee shall Probationary period requirement. become final only after the individual has served a 1-year probationary period as a, career appointee. “(e) Each career appointee shall meet the executive qualifications of the position to which appointed, as determined in writing by the appointing authority. “(f) The title of each career reserved position shall be published in Publication in Federal Register. the Federal Register. “§3394. Noncareer and limited appointments “(a) Each noncareer appointee, limited term appointee, and limited emergency appointee shall meet the qualifications of the position to which appointed, as determined in writing by the appointing authority. “(b) An individual may not be appointed as a limited term appointee or as a limited emergency appointee without the prior approval of the exercise of such appointing authority by the Office of Personnel Management. “§3395. Reassignment and transfer within the Senior Executive Service “(a) (1) A career appointee in an agency— “(A) may, subject to paragraph (2) of this subsection, be reassigned to any Senior Executive Service position in the same agency for which the appointee is qualified; and “(B) may transfer to a Senior Executive Service position in another agency for which the appointee is qualified, with the approval of the agency to which the appointee transfers. “(2) A career appointee may be reassigned to any Senior Executive Service position only if the career appointee receives a written notice of the reassignment at least 15 days in advance of such reassignment. “(b) (1) Notwithstanding section 3394(b) of this title, a limited emergency appointee may be reassigned to another Senior Executive Service position in the same agency established to meet a bona fide, unanticipated, urgent need, except that the appointee may not serve in one or more positions in such agency under such appointment in excess of 18 months. “(2) Notwithstanding section 3394(b) of this title, a limited term appointee may be reassigned to another Senior Executive Service position in the same agency the duties of which will expire at the end of a term of 3 years or less, except that the appointee may not serve in one or more positions in the agency under such appointment in excess of 3 years. “(c) A limited term appointee or a limited emergency appointee may not be appointed to, or continue to hold, a position under such an appointment if, within the preceding 48 months, the individual has served more than 36 months, in the aggregate, under any combination of such types of appointment. “(d) A noncareer appointee in an agency— “(1) may be reassigned to any general position in the agency for which the appointee is qualified; and “(2) may transfer to a general position in another agency with the approval of the agency to which the appointee transfers. “(e) (1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily reassigned— “(A) within 120 days after an appointment of the head of the agency; or “(B) within 120 days after the appointment in the agency of the career appointee’s most immediate supervisor who— “(i) is a noncareer appointee; and “(ii) has the authority to reassign the career appointee. “(2) Paragraph (1) of this subsection does not apply with respect to— “(A) any reassignment under section 4314(b) (3) of this title; Post, p. 1169. or “(B) any disciplinary action initiated before an appointment referred to in paragraph (1) of this subsection. “§3396. Development for and within the Senior Executive Service “(a) The Office of Personnel Management shall establish programs for the systematic development of candidates for the Senior Executive Service and for the continuing development of senior executives, or require agencies to establish such programs which meet criteria prescribed by the Office. “(b) The Office shall assist agencies in the establishment of programs required under subsection (a) of this section and shall monitor the implementation of the programs. If the Office finds that any agency’s program under subsection (a) of this section is not in compliance with the criteria prescribed under such subsection, it shall require the agency to take such corrective action as may be necessary to bring the program into compliance with the criteria. “(c) (1) The head of an agency may grant a sabbatical to any carreer Sabbatical grant. appointee for not to exceed 11 months in order to permit the appointee to engage in study or uncompensated work experience which will contribute to the appointee’s development and effectiveness. A sabbatical shall not result in loss of, or reduction in, pay, leave to which the career appointee is otherwise entitled, credit for time or service, or performance or efficiency rating. The head of the agency may authorize in accordance with chapter 57 of this title such travel expenses (including 5 USC 5701. per diem allowances) as the head of the agency may determine to be essential for the study or experience. “(2) A sabbatical under this subsection may not be granted to any Exclusions. career appointee— “(A) more than once in any 10-year period; “(B) unless the appointee has completed 7 years of service— “(i) in one or more positions in the Senior Executive Service; “(ii) in one or more other positions in the civil service the level of duties and responsibilities of which are equivalent to the level of duties and responsibilities of positions in the Senior Executive Service; or “(iii) in any combination of such positions, except that not less than 2 years of such 7 years of service must be in the Senior Executive Service; and “(C) if the appointee is eligible for voluntary retirement with a right to an immediate annuity under section 8336 of this title. Post, p. 1175. 5 USC 3373. Any period of assignment under section 3373 of this title, relating to assignments of employees to State and local governments, shall not be considered a period of service for the purpose of subparagraph (B) of this paragraph. “(3) (A) Any career appointee in an agency may be granted a sabbatical Condition for acceptance. under this subsection only if the appointee agrees, as a condition of accepting the sabbatical, to serve in the civil service upon the completion of the sabbatical for a period of 2 consecutive years. “(B) Each agreement required under subparagraph (A) of this paragraph shall provide that in the event the career appointee fails to carry out the agreement (except for good and sufficient reason as determined by the head of the agency who granted the sabbatical) the appointee shall be liable to the United States for payment of all expenses (including salary) of the sabbatical. The amount shall be treated as a debt due the United States. “(d) The Office shall encourage and assist individuals to improve their skills and increase their contribution by service in a variety of agencies as well as by accepting temporary placements in State or local governments or in the private sector. “§3397. Regulations “The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.”.

2. 1981

   Pub. L. 97–35 title XVII § 1704(c) · 95 Stat. 357

   Added · 5 U.S.C. § 3393(g)

   Pub. L. 97–35 added subsec. (g)

   Source evidence

   Code amendment note
   Subsec. (g). Pub. L. 97–35 added subsec. (g).

   Enacted provision · exact public law section
   (c) Section 3393 of title 5, United States Code, is amended by adding at the end thereof the following new subsection: “(g) A career appointee may not be removed from the Senior Executive Service or civil service except in accordance with the applicable provisions of sections 1207, 3592, 3595, 7532, or 7543 of this title.”.

3. 1984

   Civil Service Retirement Spouse Equity Act of 1984

   Pub. L. 98–615 title III § 306(b)(1) · 98 Stat. 3195

   Inserted · 5 U.S.C. § 3393(b)

   Pub. L. 98–615 inserted provision referring to commissioned officers of the uniformed services serving on active duty in such agency in provisions preceding par. (1)

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 98–615 inserted provision referring to commissioned officers of the uniformed services serving on active duty in such agency in provisions preceding par. (1).

   Enacted provision · exact public law section
   (1) The first sentence of section 3393(b) of such title is amended by inserting before the period the following: “or commissioned officers of the uniformed services serving on active duty in such agency”.

4. 1989

   Whistleblower Protection Act of 1989

   Pub. L. 101–12 § 9(b) · 103 Stat. 16

   Substituted · 5 U.S.C. § 3393(g)

   Pub. L. 101–12 substituted “1215” for “1207”

   Target inherited from the preceding amendment note.

   Source evidence

   Code amendment note
   Pub. L. 101–12 substituted “1215” for “1207”.

   Enacted provision · exact public law section
   (b) Section 3893(g) of title 6, United States Code, is amended by striking “1207” and inserting “1215”.

5. 1989

   Ethics Reform Act of 1989

   Pub. L. 101–194 title V § 506(b)(2) · 103 Stat. 1716

   1. Amended · 5 U.S.C. § 3393(g)

      Pub. L. 101–194, as amended by Pub. L. 101–280

   2. Inserted · 5 U.S.C. § 3393(g)

      Pub. L. 101–194, as inserted “3393a,” after “1215,”

   Source evidence

   Code amendment note
   Subsec. (g). Pub. L. 101–194, as amended by Pub. L. 101–280, inserted “3393a,” after “1215,”.

   Enacted provision · exact public law section
   (2) in section 3393(g), by inserting after “1207,” the following: “3393a,”;

6. 1990

   Pub. L. 101–280 § 6(d)(1) · 104 Stat. 149

   Changed · 5 U.S.C. § 3393(g)

   Pub. L. 101–280 made technical correction to directory language of Pub. L. 101–194, see 1989 Amendment below

   Source evidence

   Code amendment note
   Subsec. (g). Pub. L. 101–280 made technical correction to directory language of Pub. L. 101–194, see 1989 Amendment below.

   Enacted provision · exact public law section
   (1) by amending paragraph (2) of subsection (b) to read as follows: “(2) in section 3393(g), by inserting after ‘1215,’ the following: ‘3393a,’;

7. 2002

   Homeland Security Act of 2002

   Pub. L. 107–296 title XIII § 1321(a)(1)(A) · 116 Stat. 2135

   Struck · 5 U.S.C. § 3393(g)

   Pub. L. 107–296 struck out “3393a” after “1215,”

   Source evidence

   Code amendment note
   Subsec. (g). Pub. L. 107–296 struck out “3393a” after “1215,”.

   Enacted provision · exact public law section
   (A) in section 3393(g) by striking “3393a”;

8. 2015

   National Defense Authorization Act for Fiscal Year 2016

   Pub. L. 114–92 div. A title XI § 1105(c)(2) · 129 Stat. 726

   Inserted · 5 U.S.C. § 3393(d)

   Pub. L. 114–92 inserted at end “The preceding sentence shall not apply to any individual covered by section 1599e of title 10.”

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 114–92 inserted at end “The preceding sentence shall not apply to any individual covered by section 1599e of title 10.”

   Enacted provision · exact public law section
   (2) in section 3393(d), by adding at the end the following: “The preceding sentence shall not apply to any individual covered by section 1599e of title 10.”;

9. 2021

   National Defense Authorization Act for Fiscal Year 2022

   Pub. L. 117–81 div. A title XI § 1106(b)(2)(B) · 135 Stat. 1541

   Struck · 5 U.S.C. § 3393(d)

   Pub. L. 117–81 struck out at end “The preceding sentence shall not apply to any individual covered by section 1599e of title 10.”

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 117–81 struck out at end “The preceding sentence shall not apply to any individual covered by section 1599e of title 10.”

   Enacted provision · exact public law section
   (B) in section 3393(d), by striking the second sentence;

   Effective date note
   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 reflect the probable intent of Congress. See Effective Date of Repeal note under section 1599e of Title 10.

10 of 10 references resolved to an enrolled provision