
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: 5USC3595]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart B--Employment and Retention
 
     CHAPTER 35--RETENTION PREFERENCE, RESTORATION, AND REEMPLOYMENT
 
 SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE 
                        SENIOR EXECUTIVE SERVICE
 
Sec. 3595. Reduction in force in the Senior Executive Service

    (a) An agency shall establish competitive procedures for determining 
who shall be removed from the Senior Executive Service in any reduction 
in force of career appointees within that agency. The competitive 
procedures shall be designed to assure that such determinations are 
primarily on the basis of performance, as determined under subchapter II 
of chapter 43 of this title.
    (b)(1) This subsection applies to any career appointee who has 
successfully completed the probationary 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 subsection, would be 
removed from the Senior Executive 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 
    appointee 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 considers necessary to carry 
out any such placement.
    (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 reasonable 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 another 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 section 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 comparable 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, Sec. 1704(a)(1), Aug. 13, 1981, 95 
Stat. 756; amended Pub. L. 97-346, Sec. 5(a), (b), Oct. 15, 1982, 96 
Stat. 1650; Pub. L. 98-615, title III, Secs. 303(c), (d), 304(b), Nov. 
8, 1984, 98 Stat. 3218, 3219.)


                            Prior Provisions

    A prior section 3595, added Pub. L. 95-454, title IV, Sec. 404(b), 
Oct. 13, 1978, 92 Stat. 1167, which related to prescribing regulations, 
was renumbered section 3596 by Pub. L. 97-35, title XVII, 
Sec. 1704(a)(1), Aug. 13, 1981, 95 Stat. 756.


                               Amendments

    1984--Subsec. (b)(3)(B). Pub. L. 98-615, Sec. 303(c)(1), struck out 
the designation ``(i)'' before provisions relating to placement in any 
agency in any vacant Executive Service position, and struck out former 
cl. (ii), which had related to detailing by the Office of Personnel 
Management to any vacant Senior Executive Service position for which the 
Office deemed the employee 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, Sec. 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, Sec. 303(c)(2), redesignated former 
par. (4)(B) as (5), substituted ``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'' 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 committees 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 experience.
    Subsec. (c). Pub. L. 98-615, Sec. 303(d), struck out the designation 
``(1)'' before ``whether the reduction'', and struck out pars. (2) and 
(3), which had provided, respectively, 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 nonappointment, whether the 
Office of Personnel Management took all reasonable steps to achieve such 
placement 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, Sec. 304(b), added subsec. (e).
    1982--Subsec. (b)(3)(B). Pub. L. 97-346, Sec. 5(a), designated as 
cl. (i) existing provisions relating to placement in any agency in any 
vacant Executive Service position, and added cl. (ii).
    Subsec. (c)(3). Pub. L. 97-346, Sec. 5(b), designated as subpar. (A) 
existing provisions relating to taking of all reasonable steps by Office 
of Personnel Management, and added subpar. (B).


                    Effective Date of 1984 Amendment

    Amendment by section 303(c), (d) of Pub. L. 98-615 effective 
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

    Section 5(c) of Pub. L. 97-346 provided that:
    ``(1) Except as provided in paragraph (2), the amendments 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 career appointee on or after 
September 30, 1982, except that any individual who is a career appointee 
on September 30, 1982, and who is described in section 3595(b)(3) of 
title 5, United States Code, may not be removed 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

    Section 1704(e) of Pub. L. 97-35 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 employed.
    ``(B) The provisions of section 3595(a), as added by subsection 
(a)(1), shall take effect on the date of the enactment 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.''

                  Section Referred to in Other Sections

    This section is referred to in sections 3151, 3393, 3593, 3594, 
6302, 7542 of this title; title 10 sections 1606, 1610; title 31 section 
732; title 42 sections 616, 7237.
