
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC3133]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
                  CHAPTER 31--AUTHORITY FOR EMPLOYMENT
 
               SUBCHAPTER II--THE SENIOR EXECUTIVE SERVICE
 
Sec. 3133. Authorization of positions; authority for appointment

    (a) During each even-numbered calendar year, each agency shall--
        (1) examine its needs for Senior Executive Service positions for 
    each of the 2 fiscal years beginning after such calendar year; and
        (2) submit to the Office of Personnel Management a written 
    request for a specific number of Senior Executive Service positions 
    for each of such fiscal years.

    (b) Each agency request submitted under subsection (a) of this 
section shall--
        (1) be based on the anticipated type and extent of program 
    activities and budget requests of the agency for each of the 2 
    fiscal years involved, and such other factors as may be prescribed 
    from time to time by the Office; and
        (2) identify, by position title, positions which are proposed to 
    be designated as or removed from designation as career reserved 
    positions, and set forth justifications for such proposed actions.

    (c) The Office of Personnel Management, in consultation with the 
Office of Management and Budget, shall review the request of each agency 
and shall authorize, for each of the 2 fiscal years covered by requests 
required under subsection (a) of this section, a specific number of 
Senior Executive Service positions for each agency.
    (d)(1) The Office of Personnel Management may, on a written request 
of an agency or on its own initiative, make an adjustment in the number 
of positions authorized for any agency. Each agency request under this 
paragraph shall be submitted in such form, and shall be based on such 
factors, as the Office shall prescribe.
    (2) The total number of positions in the Senior Executive Service 
may not at any time during any fiscal year exceed 105 percent of the 
total number of positions authorized under subsection (c) of this 
section for such fiscal year.
    (e)(1) Not later than July 1, 1979, and from time to time thereafter 
as the Director of the Office of Personnel Management finds appropriate, 
the Director shall establish, by rule issued in accordance with section 
1103(b) of this title, the number of positions out of the total number 
of positions in the Senior Executive Service, as authorized by this 
section or section 413 of the Civil Service Reform Act of 1978, which 
are to be career reserved positions. Except as provided in paragraph (2) 
of this subsection, the number of positions required by this subsection 
to be career reserved positions shall not be less than the number of the 
positions then in the Senior Executive Service which before the date of 
such Act, were authorized to be filled only through competitive civil 
service examination.
    (2) The Director may, by rule, designate a number of career reserved 
positions which is less than the number required by paragraph (1) of 
this subsection only if the Director determines such lesser number 
necessary in order to designate as general positions one or more 
positions (other than positions described in section 3132(b)(3) of this 
title) which--
        (A) involve policymaking responsibilities which require the 
    advocacy or management of programs of the President and support of 
    controversial aspects of such programs;
        (B) involve significant participation in the major political 
    policies of the President; or
        (C) require the senior executives in the positions to serve as 
    personal assistants of, or advisers to, Presidential appointees.

The Director shall provide a full explanation for his determination in 
each case.

(Added Pub. L. 95-454, title IV, Sec. 402(a), Oct. 13, 1978, 92 Stat. 
1158.)

                       References in Text

    Section 413 of the Civil Service Reform Act of 1978, referred to in 
subsec. (e)(1), is set out as a note below.
    The date of such Act, referred to in subsec. (e)(1), probably means 
Oct. 13, 1978, the date of the enactment of the Civil Service Reform Act 
of 1978.


                 Conversion to Senior Executive Service

    Section 413 of Pub. L. 95-454 provided that:
    ``(a) For the purpose of this section, `agency', `Senior Executive 
Service position', `career appointee', `career reserved position', 
`limited term appointee', `noncareer appointee', and `general position' 
have the meanings set forth in section 3132(a) of title 5, United States 
Code (as added by this title) and `Senior Executive Service' has the 
meaning set forth in section 2101a of such title 5 (as added by this 
title).
    ``(b)(1) Under the guidance of the Office of Personnel Management, 
each agency shall--
        ``(A) designate those positions which it considers should be 
    Senior Executive Service positions and designate which of those 
    positions it considers should be career reserved positions; and
        ``(B) submit to the Office a written request for--
            ``(i) a specific number of Senior Executive Service 
        positions; and
            ``(ii) authority to employ a specific number of noncareer 
        appointees.
    ``(2) The Office of Personnel Management shall review the 
designations and requests of each agency under paragraph (1) of this 
subsection, and shall establish interim authorizations in accordance 
with sections 3133 and 3134 of title 5, United States Code (as added by 
this Act), and shall publish the titles of the authorized positions in 
the Federal Register.
    ``(c)(1) Each employee serving in a position at the time it is 
designated as a Senior Executive Service position under subsection (b) 
of this section shall elect to--
        ``(A) decline conversion and be appointed to a position under 
    such employee's current type of appointment and pay system, 
    retaining the grade, seniority, and other rights and benefits 
    associated with such type of appointment and pay system; or
        ``(B) accept conversion and be appointed to a Senior Executive 
    Service position in accordance with the provisions of subsections 
    (d), (e), (f), (g), and (h) of this section.
The appointment of an employee in an agency because of an election under 
subparagraph (A) of this paragraph shall not result in the separation or 
reduction in grade of any other employee in such agency.
    ``(2) Any employee in a position which has been designated a Senior 
Executive Service position under this section shall be notified in 
writing of such designation, the election required under paragraph (1) 
of this subsection, and the provisions of subsections (d), (e), (f), 
(g), and (h) of this section. The employee shall be given 90 days from 
the date of such notification to make the election under paragraph (1) 
of this subsection.
    ``(d) Each employee who has elected to accept conversion to a Senior 
Executive Service position under subsection (c)(1)(B) of this section 
and who is serving under--
        ``(1) a career or career-conditional appointment; or
        ``(2) a similar type of appointment in an excepted service 
    position, as determined by the Office;
in a position which is designated as a Senior Executive Service position 
shall be appointed as a career appointee to such Senior Executive 
Service position without regard to section 3393(b)-(e) of title 5, 
United States Code (as added by this title).
    ``(e) Each employee who has elected conversion to a Senior Executive 
Service position under subsection (c)(1)(B) of this section and who is 
serving under an excepted appointment in a position which is not 
designated a career reserved position in the Senior Executive Service, 
but is--
        ``(1) a position in Schedule C of subpart C of part 213 of title 
    5, Code of Federal Regulations;
        ``(2) a position filled by noncareer executive assignment under 
    subpart F of part 305 of title 5, Code of Federal Regulations; or
        ``(3) a position in the Executive Schedule under subchapter II 
    of chapter 53 of title 5, United States Code [section 5311 et seq. 
    of this title], other than a career Executive Schedule position;
shall be appointed as a noncareer appointee to a Senior Executive 
Service position.
    ``(f) Each employee who has elected conversion to a Senior Executive 
Service position under subsection (c)(1)(B) of this section, who is 
serving in a position described in paragraph (1), (2), or (3) of 
subsection (e) of this section, and whose position is designated as a 
career reserved position under subsection (b) of this section shall be 
appointed as a noncareer appointee to an appropriate general position in 
the Senior Executive Service or shall be separated.
    ``(g) Each employee who has elected conversion to a Senior Executive 
Service position under subsection (c)(1)(B) of this section, who is 
serving in a position described in paragraph (1), (2), or (3) of 
subsection (e) of this section, and whose position is designated as a 
Senior Executive Service position and who has reinstatement eligibility 
to a position in the competitive service, may, on request to the Office, 
be appointed as a career appointee to a Senior Executive Service 
position. The name of, and basis for reinstatement eligibility for, each 
employee appointed as a career appointee under this subsection shall be 
published in the Federal Register.
    ``(h) Each employee who has elected conversion to a Senior Executive 
Service position under subsection (c)(1)(B) of this section and who is 
serving under a limited executive assignment under subpart F of part 305 
of title 5, Code of Federal Regulations, shall--
        ``(1) be appointed as a limited term appointee to a Senior 
    Executive Service position if the position then held by such 
    employee will terminate within 3 years of the date of such 
    appointment;
        ``(2) be appointed as a noncareer appointee to a Senior 
    Executive Service position if the position then held by such 
    employee is designated as a general position; or
        ``(3) be appointed as a noncareer appointee to a general 
    position if the position then held by such employee is designated as 
    a career reserved position.
    ``(i) The rate of basic pay for any employee appointed to a Senior 
Executive Service position under this section shall be greater than or 
equal to the rate of basic pay payable for the position held by such 
employee at the time of such appointment.
    ``(j) Any employee who is aggrieved by any action by any agency 
under this section is entitled to appeal to the Merit Systems Protection 
Board under section 7701 of title 5, United States Code (as added by 
this title). An agency shall take any corrective action which the Board 
orders in its decision on an appeal under this subsection.
    ``(k) The Office shall prescribe regulations to carry out the 
purpose of this section.''
    Section 415(a)(2) of Pub. L. 95-454 provided that section 413 is 
effective Oct. 13, 1978.

                  Section Referred to in Other Sections

    This section is referred to in section 3392 of this title; title 42 
section 904.
