CHAPTER 33 - EXAMINATION, SELECTION, AND PLACEMENT

Title 5 > CHAPTER 33

Sections (97)

§ 3301 Civil service; generally

(a) In General.— The President may— prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service; ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought; and appoint and prescribe the duties of individuals to make inquiries for the purpose of this section.

(b) DOD Procedures.— The President may authorize the Department of Defense to determine the qualification, examination, and assessment procedures for positions in the competitive service based primarily on job-related competencies and skills, including the use of structured interviews, technical evaluations, or skills-based assessments, and alternative assessments.

“SECTION 1 SHORT TITLE.

“This Act may be cited as the ‘National Advisory Council on the Public Service Act of 1990’.

“SEC. 2 FINDINGS.

“The Congress finds that— recognition of the services rendered by Federal employees (hereinafter in this Act referred to as ‘national public service’) should be accorded a high and continuing place on the national agenda; the National Commission on the Public Service, through its good works, has documented the need for greater advocacy on behalf of those performing national public service; although public service is an honorable profession, members of the public do not always perceive it favorably; serious obstacles often hinder the Government’s efforts to recruit and retain the best and the brightest for national public service; just as the public has a right to expect Federal employees to adhere to the highest standards of excellence and ethicality, so Federal employees have a right to expect an atmosphere of trust and respect, and a sense of accomplishment from their work; and an advisory council is needed to provide the President and the Congress with bipartisan, objective assessments of, and recommendations concerning, the Federal workforce.

“SEC. 3 ESTABLISHMENT.

“There shall be established a council to be known as the National Advisory Council on the Public Service (hereinafter in this Act referred to as the ‘Council’).

“SEC. 4 FUNCTIONS.

“The Council shall— regularly assess the state of the Federal workforce; in conjunction with the President, the Congress, and the Judiciary, seek to attract individuals of the highest caliber to careers involving national public service, and encourage them and others of similar distinction who are already part of the Federal workforce to make a continuing commitment to national public service; promote better public understanding of the role of Federal employees in implementing Government programs and policies, and otherwise seek to improve the public perception of Federal employees; encourage efforts to build student interest in performing national public service (whether those efforts are undertaken at the community level, in the classroom, or otherwise); and develop methods for improving motivation and excellence among Federal employees.

“SEC. 5 MEMBERSHIP.

(“(a) Number and Appointment.— The Council shall be composed of 15 members as follows: 2 Members of the Senate, 1 of whom shall be appointed by the majority leader of the Senate and the other of whom shall be appointed by the minority leader of the Senate. 2 Members of the House of Representatives, 1 of whom shall be appointed by the Speaker of the House of Representatives and the other of whom shall be appointed by the minority leader of the House of Representatives. The Director of the Administrative Office of the United States Courts (or his delegate). 10 individuals appointed by the President— 4 of whom shall be chosen from among officers serving in the executive branch; 1 of whom shall be chosen from among career employees in the civil service; 1 of whom shall be a Federal employee who is a member of a labor organization (as defined by section 7103(a)(4) of title 5 , United States Code); and 4 of whom shall be chosen from among members of the public who do not hold any Government office or position.

(“(b) Continuation of Membership.— If any member of the Council whose appointment is based on that individual’s holding a Government office or position leaves such office or position, or if any member of the Council under subsection (a)(4)(D) is appointed or elected to a Government office or position, that individual may continue to serve as such a member for not longer than the 90-day period beginning on the date of leaving that office or position, or entering into that office or position, as the case may be.

(“(c) Terms.— Members of the Council shall be appointed for the life of the Council.

(“(d) Vacancies.— A vacancy in the Council shall be filled in the manner in which the original appointment was made.

(“(e) Compensation.— Members of the Council shall not be entitled to pay (or, in the case of members holding any Government office or position, pay in addition to any to which they are otherwise entitled for service in such office or position) by virtue of membership on the Council. While serving away from their homes or regular places of business in the performance of duties for the Council, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as authorized by section 5703 of title 5 , United States Code, for persons employed intermittently in Government service.

(“(f) Quorum.— Eight members of the Council shall constitute a quorum.

(“(g) Chairman.— The Chairman of the Council shall be designated by the President from among the members appointed under subsection (a)(4)(D).

(“(h) Meetings.— The Council shall meet at the call of the Chairman or a majority of its members, and shall meet on at least a quarterly basis.

“SEC. 6 DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.

(“(a) Director.— With the approval of the Council, the Chairman may appoint a Director and fix the pay of such Director at a rate not to exceed the rate for level IV of the Executive Schedule [ 5 U.S.C. 5315 ]. The Director shall be a person who, by reason of demonstrated ability in the area of management, government, or public administration, is especially well qualified to serve.

(“(b) Staff.— With the approval of the Chairman, the Director may appoint and fix the pay of such personnel as may be necessary to carry out the functions of the Council. The staff of the Council shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.

(“(c) Experts and Consultants.— The Council may procure temporary or intermittent services under section 3109(b) of title 5 , United States Code, but at rates for individuals not to exceed the daily equivalent of the maximum rate payable under the General Schedule.

(“(d) Staff of Federal Agencies.— Upon the request of the Chairman, the head of a Federal agency may detail, on a reimbursable or nonreimbursable basis, any personnel of such agency to the Council to assist the Council in carrying out its functions under this Act.

“SEC. 7 POWERS.

(“(a) Mails.— The Council may use the United States mails in the same manner and under the same conditions as other Federal agencies.

(“(b) Administrative Support Services.— The Administrator of General Services shall provide to the Council, on a reimbursable basis, such administrative support services as the Council may request.

(“(c) Official Data.— The Council may secure directly from any Federal agency information necessary to carry out its functions under this Act. Each such agency is authorized and directed to furnish, to the extent permitted by law, any information requested by the Council.

(“(d) Gifts.— The Council— may accept money and other property donated, bequeathed, or devised to the Council without condition or restriction (other than that it be used to carry out the work of the Council); and may use, sell, or otherwise dispose of any such property to carry out its functions under this Act, except that, upon the termination of the Council, any such property shall be disposed of in accordance with applicable provisions of law governing the disposal of Federal property.

“SEC. 8 REPORTS.

“The Council shall transmit to the President and each House of the Congress— within 1 and 2 years, respectively, after the date on which the Council first meets, reports containing its preliminary findings and recommendations; and within 3 years after the date on which the Council first meets, a final report containing a detailed statement of the findings and conclusions of the Council, together with its recommendations for such legislation or administrative actions as it considers appropriate.

“SEC. 9 COMMENCEMENT; TERMINATION.

(“(a) Commencement.— Appointments under section 5 shall be made, and the Council shall first meet, within 90 days after the date of the enactment of this Act [ Aug. 14, 1990 ].

(“(b) Termination.— The Council shall cease to exist upon transmitting its final report under section 8(2).

“SEC. 10 AUTHORIZATION.

“There is authorized to be appropriated such sums as may be necessary to carry out this Act.”

§ 3302 Competitive service; rules

The President may prescribe rules governing the competitive service. The rules shall provide, as nearly as conditions of good administration warrant, for— necessary exceptions of positions from the competitive service; and necessary exceptions from the provisions of sections 2951, 3304(b), 3321, 7202, and 7203 of this title. Each officer and individual employed in an agency to which the rules apply shall aid in carrying out the rules. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 417 ; Pub. L. 95–228, § 2(b) , Feb. 10, 1978 , 92 Stat. 25 ; Pub. L. 95–454, title VII, § 703(c)(1) , Oct. 13, 1978 , 92 Stat. 1217 ; Pub. L. 96–54, § 2(a)(16) , Aug. 14, 1979 , 93 Stat. 382 ; Pub. L. 103–94, § 2(b)(1) , Oct. 6, 1993 , 107 Stat. 1004 ; Pub. L. 118–188, § 2(a)(2)(A)(i)(I) , Dec. 23, 2024 , 138 Stat. 2645 .)

§ 3303 Competitive service; recommendations of Senators or Representatives

An individual concerned in examining an applicant for or appointing him in the competitive service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 418 ; Pub. L. 103–94, § 8(a) , Oct. 6, 1993 , 107 Stat. 1006 ; Pub. L. 104–197, title III, § 315(a) , Sept. 16, 1996 , 110 Stat. 2416 .)

§ 3304 Competitive service; examinations

(a) Definitions.— In this section: The term “agency” means an Executive agency. The term “Director” means the Director of the Office. The term “examination” means the process by which an applicant demonstrates knowledge, skills, abilities, and competencies. The term “examining agency” means— the Office; or an agency to which the Director has delegated examining authority under section 1104(a)(2). The term “Office” means the Office of Personnel Management. The term “passing score” means a minimum acceptable score or rating, consistent with applicable law, that may include a quantitative or qualitative assessment that an applicant can pass or fail. The term “relevant committees” means— the Committee on Homeland Security and Governmental Affairs of the Senate; and the Committee on Oversight and Accountability of the House of Representatives. The term “subject matter expert” means an employee or selecting official— who possesses an understanding of the duties of, and knowledge, skills, and abilities required for, the position for which the employee or selecting official is developing or administering an examination; and whom the delegated examining unit of the examining agency that employs the employee or selecting official designates to assist in the development and administration of technical assessments. The term “technical assessment” means a position-specific tool that is relevant to the position for which the tool is developed that— allows for the demonstration of job-related skills, abilities, knowledge, and competencies; is based upon a job analysis; and does not solely include or principally rely upon a self-assessment from an automated examination.

(b) Rules.— The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for— open, competitive examinations for testing applicants for appointment in the competitive service which are practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointment sought; noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy; and authority for agencies to appoint, without regard to the provision of sections 3309 through 3318, candidates directly to positions for which— public notice has been given; and the Office of Personnel Management has determined that there exists a severe shortage of candidates (or, with respect to the Department of Veterans Affairs, that there exists a severe shortage of highly qualified candidates) or that there is a critical hiring need. The Office shall prescribe, by regulation, criteria for identifying such positions and may delegate authority to make determinations under such criteria.

(c) Examinations.— For the purpose of testing applicants for appointment for a position, or class of positions, in the competitive service, an examining agency shall conduct an examination pursuant to subsection (b). During the 3-year period beginning on the date of enactment of the Chance to Compete Act of 2024, an examining agency shall preference the use of a technical assessment, to the maximum extent practicable, to assess the job-related skills, abilities, knowledge, and competencies of an applicant for a position in the competitive service. During the 3-year period beginning on the date of enactment of the Chance to Compete Act of 2024, if an examining agency determines that the use of a technical assessment to assess the job-related skills, abilities, knowledge, and competencies of an applicant for a position in the competitive service is not practicable, the examining agency may use an alternative assessment for that purpose if the examining agency includes a brief description of the rationale for the use of the alternative assessment in the job posting. Not later 1 18 months after the date of enactment of the Chance to Compete Act of 2024, the Director shall submit to the relevant committees a plan to transition Federal hiring practices to adopt technical assessments in accordance with subsection (d), which shall include— the prioritization of— job classifications; and resource requirements; and a timeline for full implementation of the transition. In developing the plan under subparagraph (A), the Director shall consult with, at minimum— the Director of the Office of Management and Budget; the Chair of the Chief Human Capital Officers Council; employee representatives; and relevant external stakeholders. Not later than 3 years after the date of enactment of the Chance to Compete Act of 2024, the Director shall implement the plan submitted under paragraph (3). On and after the date that is 3 years after the date of enactment of the Chance to Compete Act of 2024, an examining agency shall use a technical assessment to examine applicants for positions in the competitive service in accordance with subsection (d). The requirement under subparagraph (B) shall not apply to an examining agency with respect to a particular job series if— the examining agency determines that use of a technical assessment is impracticable for the job series; and the head of the examining agency submits to the Director and the relevant committees a certification that use of the technical assessment is impracticable, which certification shall include— identification of the job series; identification of the number of positions that are included in the job series within the agency for which the examining agency is conducting examinations; and a description of the rationale for the determination. A waiver under this subparagraph shall be effective for the period— beginning on the date that is 1 day after the date on which the applicable certification is submitted under clause (i)(II); and ending on the date that is 3 years after the date on which the applicable certification is submitted under clause (i)(II). The head of an examining agency may not delegate the authority to submit a certification under clause (i)(II).

(d) Technical Assessment.— For the purpose of conducting an examination for a position in the competitive service, an individual who is determined by an examining agency to be a subject matter expert in the subject and job field of the position may— develop, in partnership with human resources employees of the examining agency, a position-specific assessment that is relevant to the position, based on job analysis, which may include— a structured interview; a work-related exercise; a custom or generic procedure used to measure an applicant’s employment or career-related qualifications and interests; or another assessment that— allows for the demonstration of job-related technical skills, abilities, and knowledge; and is relevant to the position for which the assessment is developed; and administer the assessment developed under subparagraph (A) to— determine whether an applicant for the position has a passing score to be qualified for the position; or rank applicants for the position for category rating purposes under section 3319. Not later than 1 year after the date of enactment of the Chance to Compete Act of 2024, the Director shall— conduct a feasibility study that examines the practicability, including a cost benefit analysis, of— the sharing of technical assessments by an examining agency with another examining agency; mechanisms for each examining agency to maintain appropriate control over examination material that is shared by the examining agency as described in clause (i); limits on customization of a technical assessment that is shared as described in clause (i) and mechanisms to ensure that the resulting technical assessment satisfies the requirements under part 300 of title 5, Code of Federal Regulations (or any successor regulation); and the development of an online platform on which examining agencies can share and customize technical assessments as described in this subparagraph; and submit to the relevant committees a report on the study conducted under subparagraph (A).

(e) Federal Agency Talent Teams.— An agency may establish 1 or more agency talent teams, including at the component level. An agency talent team shall provide hiring support to the agency, including by— improving examinations; facilitating the writing of job announcements for the competitive service; sharing high-quality certificates of eligible applicants; and facilitating hiring for the competitive service using examinations.

(f) Office of Personnel Management Talent Team.— The Director may establish a Federal talent team to support agency talent teams by— facilitating hiring actions across the Federal Government; providing training; creating tools and guides to facilitate hiring for the competitive service; and developing technical assessments.

(g) Rulemaking.— The Director shall promulgate such regulations as are necessary to implement and interpret this section.

(h) Examination or Exception Required.— An individual may be appointed in the competitive service only if he has passed an examination or is specifically excepted from examination under section 3302 of this title . This subsection does not take from the President any authority conferred by section 3301 of this title that is consistent with the provisions of this title governing the competitive service.

(i) Technicians.— For the purpose of this subsection, the term “technician” has the meaning given such term by section 8337(h)(1) of this title . Notwithstanding a contrary provision of this title or of the rules and regulations prescribed under this title for the administration of the competitive service, an individual who served for at least 3 years as a technician acquires a competitive status for transfer to the competitive service if such individual— is involuntarily separated from service as a technician other than by removal for cause on charges of misconduct or delinquency; passes a suitable noncompetitive examination; and transfers to the competitive service within 1 year after separating from service as a technician.

(j) Consideration of Experience.— The office 2 of Personnel Management shall promulgate regulations on the manner and extent that experience of an individual in a position other than the competitive service, such as the excepted service (as defined under section 2103) in the legislative or judicial branch, or in any private or nonprofit enterprise, may be considered in making appointments to a position in the competitive service (as defined under section 2102). In promulgating such regulations OPM shall not grant any preference based on the fact of service in the legislative or judicial branch. The regulations shall be consistent with the principles of equitable competition and merit based appointments.

(k) Use of Public Buildings.— Employees at any place outside the District of Columbia where the President or the Office of Personnel Management directs that examinations be held shall allow the reasonable use of public buildings for, and in all proper ways facilitate, holding the examinations.

(l) Preference Eligibles and Veterans.— Preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures. If selected, a preference eligible or veteran described in paragraph (1) shall receive a career or career-conditional appointment, as appropriate. This subsection shall not be construed to confer an entitlement to veterans’ preference that is not otherwise required by law. The area of consideration for all merit promotion announcements which include consideration of individuals of the Federal workforce shall indicate that preference eligibles and veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service are eligible to apply. The announcements shall be publicized in accordance with section 3327. The Office of Personnel Management shall prescribe regulations necessary for the administration of this subsection. The regulations shall ensure that an individual who has completed an initial tour of active duty is not excluded from the application of this subsection because of having been released from such tour of duty shortly before completing 3 years of active service, having been honorably released from such duty.

(m) Eligibility of Department of Defense Employees in Time-limited Appointments to Compete for Permanent Appointments.— In this subsection— the term “Department” means the Department of Defense; and the term “time-limited appointment” means a temporary or term appointment in the competitive service. Notwithstanding any other provision of this chapter or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, an employee of the Department serving under a time-limited appointment is eligible to compete for a permanent appointment in the competitive service when the Department is accepting applications from individuals within its own workforce, or from individuals outside its own workforce, under merit promotion procedures, if— the employee was appointed initially under open, competitive examination under subchapter I of this chapter to the time-limited appointment; the employee has served under 1 or more time-limited appointments within the Department for a period or periods totaling more than 2 years without a break of 2 or more years; and the employee’s performance has been at an acceptable level of performance throughout the period or periods referred to in subparagraph (B). An individual appointed to a permanent position under this section— becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and acquires competitive status upon appointment. If the Department is accepting applications as described in paragraph (2), a former employee of the Department who served under a time-limited appointment and who otherwise meets the requirements of this section shall be eligible to compete for a permanent position in the competitive service under this section if— the employee applies for a position covered by this section not later than 2 years after the most recent date of separation; and the employee’s most recent separation was for reasons other than misconduct or performance. The Office of Personnel Management shall prescribe regulations necessary for the administration of this subsection.

§ 3304a Competitive service; career appointment after 3 years’ temporary service

(a) An individual serving in a position in the competitive service under an indefinite appointment or a temporary appointment pending establishment of a register (other than an individual serving under an overseas limited appointment, or in a position classified above GS–15 pursuant to section 5108) acquires competitive status and is entitled to have his appointment converted to a career appointment, without condition, when— he completes, without break in service of more than 30 days, a total of at least 3 years of service in such a position; he passes a suitable noncompetitive examination; the appointing authority (A) recommends to the Office of Personnel Management that the appointment of the individual be converted to a career appointment and (B) certifies to the Office that the work performance of the individual for the past 12 months has been satisfactory; and he meets Office qualification requirements for the position and is otherwise eligible for career appointment.

(b) The employing agency shall terminate the appointment of an individual serving in a position in the competitive service under an indefinite or temporary appointment described in subsection (a) of this section, not later than 90 days after he has completed the 3-year period referred to in subsection (a)(1) of this section, if, prior to the close of such 90-day period, such individual has not met the requirements and conditions of subparagraphs (2) to (4), inclusive, of subsection (a) of this section.

(c) In computing years of service under subsection (a)(1) of this section for an individual who leaves a position in the competitive service to enter the armed forces and is reemployed in such a position within 120 days after separation under honorable conditions, the period from the date he leaves his position to the date he is reemployed is included.

(d) The Office of Personnel Management may prescribe regulations necessary for the administration of this section.

§ 3305 Competitive service; examinations; when held

(a) The Office of Personnel Management shall hold examinations for the competitive service at least twice a year in each State and territory or possession of the United States where there are individuals to be examined.

(b) The Office shall hold an examination for a position to which an appointment has been made within the preceding 3 years, on the application of an individual who qualifies as a preference eligible under section 2108(3)(C)–(G) of this title. The examination shall be held during the quarter following the application.

[§ 3306 Repealed. Pub. L. 95–228, § 1, Feb. 10, 1978, 92 Stat. 25]

§ 3307 Competitive service; maximum-age entrance requirements; exceptions

(a) Except as provided in subsections (b), (c), (d), (e), and (f) of this section appropriated funds may not be used to pay an employee who establishes a maximum-age requirement for entrance into the competitive service.

(b) The Secretary may, with the concurrence of such agent as the President may designate, determine and fix the maximum limit of age within which an original appointment to a position as an air traffic controller may be made.

(c) The Secretary of the Interior may determine and fix the minimum and maximum limits of age within which original appointments to the United States Park Police may be made.

(d) The head of any agency may determine and fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331(20) and (21), respectively, of this title.

(e) Except as provided in paragraph (2), the head of an agency may determine and fix the maximum age limit for an original appointment to a position as a firefighter or law enforcement officer, as defined by section 8401(14) or (17), respectively, of this title. In the case of the conversion of an agency function from performance by a contractor to performance by an employee of the agency, the head of the agency, in consultation with the Director of the Office of Personnel Management, may waive any maximum limit of age, determined or fixed for positions within such agency under paragraph (1), if necessary in order to promote the recruitment or appointment of experienced personnel. For purposes of this paragraph— the term “agency” means the Department of Defense or a military department; and the term “head of the agency” means— in the case of the Department of Defense, the Secretary of Defense; and in the case of a military department, the Secretary of such military department.

(f) The Secretary of Energy may determine and fix the maximum age limit for an original appointment to a position as a nuclear materials courier, as defined by section 8331(27) or 8401(33).

(g) The Secretary of Homeland Security may determine and fix the maximum age limit for an original appointment to a position as a customs and border protection officer, as defined by section 8401(36).

§ 3308 Competitive service; examinations; educational requirements prohibited; exceptions

The Office of Personnel Management or other examining agency may not prescribe a minimum educational requirement for an examination for the competitive service except when the Office decides that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education. The Office shall make the reasons for its decision under this section a part of its public records. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 419 ; Pub. L. 95–454, title IX, § 906(a)(2) , (3), Oct. 13, 1978 , 92 Stat. 1224 .)

§ 3309 Preference eligibles; examinations; additional points for

A preference eligible who receives a passing grade in an examination for entrance into the competitive service is entitled to additional points above his earned rating, as follows— a preference eligible under section 2108(3)(C)–(G) of this title—10 points; and a preference eligible under section 2108(3)(A)–(B) of this title—5 points. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 419 ; Pub. L. 90–83, § 1(8) , Sept. 11, 1967 , 81 Stat. 197 ; Pub. L. 105–85, div. A, title XI, § 1102(b) , Nov. 18, 1997 , 111 Stat. 1922 .)

§ 3310 Preference eligibles; examinations; guards, elevator operators, messengers, and custodians

In examinations for positions of guards, elevator operators, messengers, and custodians in the competitive service (other than for positions of housekeeping aides in the Department of Veterans Affairs), competition is restricted to preference eligibles as long as preference eligibles are available. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 420 ; Pub. L. 117–168, title IX, § 905 , Aug. 10, 2022 , 136 Stat. 1811 .)

§ 3311 Preference eligibles; examinations; crediting experience

In examinations for the competitive service in which experience is an element of qualification, a preference eligible is entitled to credit— for service in the armed forces when his employment in a similar vocation to that for which examined was interrupted by the service; and for all experience material to the position for which examined, including experience gained in religious, civic, welfare, service, and organizational activities, regardless of whether he received pay therefor. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 420 .)

§ 3312 Preference eligibles; physical qualifications; waiver

(a) In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Office of Personnel Management or other examining agency shall waive— requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.

(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible’s last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.

§ 3313 Competitive service; registers of eligibles

The names of applicants who have qualified in examinations for the competitive service shall be entered on appropriate registers or lists of eligibles in the following order— for scientific and professional positions in GS–9 or higher, in the order of their ratings, including points added under section 3309 of this title ; and for all other positions— disabled veterans who have a compensable service-connected disability of 10 percent or more, in order of their ratings, including points added under section 3309 of this title ; and remaining applicants, in the order of their ratings, including points added under section 3309 of this title . The names of preference eligibles shall be entered ahead of others having the same rating. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 420 .)

§ 3314 Registers; preference eligibles who resigned

A preference eligible who resigns, on request to the Office of Personnel Management, is entitled to have his name placed again on all registers for which he may have been qualified, in the order named by section 3313 of this title . ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 420 ; Pub. L. 95–454, title IX, § 906(a)(2) , Oct. 13, 1978 , 92 Stat. 1224 .)

§ 3315 Registers; preference eligibles furloughed or separated

(a) A preference eligible who has been separated or furloughed without delinquency or misconduct, on request, is entitled to have his name placed on appropriate registers and employment lists for every position for which his qualifications have been established, in the order named by section 3313 of this title . This subsection applies to registers and employment lists maintained by the Office of Personnel Management, an Executive agency, or the government of the District of Columbia.

(b) The Office may declare a preference eligible who has been separated or furloughed without pay under section 7512 of this title to be entitled to the benefits of subsection (a) of this section.

[§ 3315a Repealed. Pub. L. 93–416, § 22(c), Sept. 7, 1974, 88 Stat. 1150]

§ 3316 Preference eligibles; reinstatement

On request of an appointing authority, a preference eligible who has resigned or who has been dismissed or furloughed may be certified for, and appointed to, a position for which he is eligible in the competitive service, an Executive agency, or the government of the District of Columbia. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 421 .)

§ 3317 Competitive service; certification from registers

(a) The Office of Personnel Management shall certify enough names from the top of the appropriate register to permit a nominating or appointing authority who has requested a certificate of eligibles to consider at least three names for appointment to each vacancy in the competitive service.

(b) When an appointing authority, for reasons considered sufficient by the Office, has three times considered and passed over a preference eligible who was certified from a register, certification of the preference eligible for appointment may be discontinued. However, the preference eligible is entitled to advance notice of discontinuance of certification.

§ 3318 Competitive service; selection from certificates

(a) The nominating or appointing authority shall select for appointment to each vacancy from the highest three eligibles available for appointment on the certificate furnished under section 3317(a) of this title , unless objection to one or more of the individuals certified is made to, and sustained by, the Office of Personnel Management for proper and adequate reason under regulations prescribed by the Office.

(b) Other Appointing Authorities.— During the 240-day period beginning on the date of issuance of a certificate of eligibles under section 3317(a), an appointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the “other appointing authority”) may select an individual from that certificate in accordance with this subsection for an appointment to a position that is— in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the “original position”); and at a similar grade level as the original position. An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority. The selection of an individual under paragraph (1)— shall be made in accordance with subsection (a); and subject to paragraph (4), may be made without any additional posting under section 3327. Before selecting an individual under paragraph (1), and subject to the requirements of any collective bargaining obligation of the other appointing authority, the other appointing authority shall— provide notice of the available position to employees of the other appointing authority; provide up to 10 business days for employees of the other appointing authority to apply for the position; and review the qualifications of employees submitting an application. Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.

(c) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not a preference eligible, such authority shall file written reasons with the Office for passing over the preference eligible. The Office shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings of the Office. In the case of a preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this subsection, notify the preference eligible of the proposed passover, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, before completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notification was timely sent to the preference eligible’s last known address. A preference eligible not described in paragraph (2) of this subsection, or his representative, shall be entitled, on request, to a copy of— the reasons submitted by the appointing authority in support of the proposed passover, and the findings of the Office. In the case of a preference eligible described in paragraph (2) of this subsection, the functions of the Office under this subsection may not be delegated.

(d) When three or more names of preference eligibles are on a reemployment list appropriate for the position to be filled, a nominating or appointing authority may appoint from a register of eligibles established after examination only an individual who qualifies as a preference eligible under section 2108(3)(C)–(G) of this title.

§ 3319 Alternative ranking and selection procedures

(a) The Office, in exercising its authority under section 3304, or an agency to which the Office has delegated examining authority under section 1104(a)(2), may establish category rating systems for evaluating applicants for positions in the competitive service, under 2 or more quality categories based on merit consistent with regulations prescribed by the Office of Personnel Management, rather than assigned individual numerical ratings.

(b) Within each quality category established under subsection (a), preference-eligibles shall be listed ahead of individuals who are not preference eligibles. For other than scientific and professional positions at GS–9 of the General Schedule (equivalent or higher), qualified preference-eligibles who have a compensable service-connected disability of 10 percent or more shall be listed in the highest quality category.

(c) Selection.— An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories. Under regulations prescribed by the Office of Personnel Management, appointing officials other than the appointing official described in paragraph (1) (in this subsection referred to as the “other appointing official”) may select an applicant for an appointment to a position that is— in the same occupational series as the position for which the certification of eligibles was issued (in this subsection referred to as the “original position”); and at a similar grade level as the original position. An appointing authority requesting a certificate of eligibles may share the certificate with another appointing authority only if the announcement of the original position provided notice that the resulting list of eligible candidates may be used by another appointing authority. The selection of an individual under paragraph (2)— shall be made in accordance with this subsection; and subject to paragraph (5), may be made without any additional posting under section 3327. Before selecting an individual under paragraph (2), and subject to the requirements of any collective bargaining obligation of the other appointing authority (within the meaning given that term in section 3318(b)(1)), the other appointing official shall— provide notice of the available position to employees of the appointing authority employing the other appointing official; provide up to 10 business days for employees of the other appointing authority to apply for the position; and review the qualifications of employees submitting an application. Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71. Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section 1 3317(b) and 1 3318(c), as applicable, are satisfied.

(d) Each agency that establishes a category rating system under this section shall submit in each of the 3 years following that establishment, a report to Congress on that system including information on— the number of employees hired under that system; the impact that system has had on the hiring of veterans and minorities, including those who are American Indian or Alaska Natives, Asian, Black or African American, and native Hawaiian or other Pacific Islanders; and the way in which managers were trained in the administration of that system.

(e) The Office of Personnel Management may prescribe such regulations as it considers necessary to carry out the provisions of this section.

§ 3320 Excepted service; government of the District of Columbia; selection

The nominating or appointing authority shall select for appointment to each vacancy in the excepted service in the executive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308–3318 of this title. This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 422 ; Pub. L. 115–232, div. A, title XI, § 1107(b)(2) , Aug. 13, 2018 , 132 Stat. 2005 .)

§ 3321 Competitive service; probationary period

(a) The President may take such action, including the issuance of rules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation— before an appointment in the competitive service becomes final; and before initial appointment as a supervisor or manager becomes final.

(b) An individual— who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and who does not satisfactorily complete the probationary period under subsection (a)(2) of this section, shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance.

(c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

§ 3322 Voluntary separation before resolution of personnel investigation

(a) With respect to any employee occupying a position in the competitive service or the excepted service who is the subject of a personnel investigation and resigns from Government employment prior to the resolution of such investigation, the head of the agency from which such employee so resigns shall, if an adverse finding was made with respect to such employee pursuant to such investigation, make a permanent notation in the employee’s official personnel record file. The head shall make such notation not later than 40 days after the date of the resolution of such investigation.

(b) Prior to making a permanent notation in an employee’s official personnel record file under subsection (a), the head of the agency shall— notify the employee in writing within 5 days of the resolution of the investigation and provide such employee a copy of the adverse finding and any supporting documentation; 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 adverse finding was unfounded (a summary of which shall be included in any notation made to the employee’s personnel file under subsection (d)); and provide a written decision and the specific reasons therefore to the employee at the earliest practicable date.

(c) An employee is entitled to appeal the decision of the head of the agency to make a permanent notation under subsection (a) to the Merit Systems Protection Board under section 7701.

(d) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the agency head shall make a notation 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. 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 notation made under paragraph (1) from the employee’s official personnel record file. 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 investigation” includes— an investigation by an Inspector General; and 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.

§ 3323 Automatic separations; reappointment; re­employment of annuitants

(a) An individual who reaches the retirement age prescribed for automatic separation applicable 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 government of the District of Columbia. The President, 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 statute providing for the continuance of the individual in the civil service or in the government of the District of Columbia.

(b) Notwithstanding other statutes, an annuitant, as defined by section 8331 or 8401, receiving annuity from the Civil Service Retirement and Disability Fund is not barred by reason 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. Subject to such regulations as the Director of the Office of Personnel Management may prescribe, 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 administrative 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 administrative law judges reappointed under such section pursuant to the first sentence of this paragraph.

(c) Notwithstanding subsection (a) of this section, 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 service for which he is qualified. An annuitant so reemployed serves at the will of the appointing authority.

(d) Notwithstanding subsection (a) of this section, 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 control 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 period of actual employment.

§ 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 section does not apply to a position— to which appointment is made by the Chief Judge of the United States Tax Court; to which appointment is made by the President; to which appointment is made by the Librarian of Congress; or the incumbent of which is paid from— appropriations for the Executive Office of the President under the heading “The White House Office”, “Special Proj­ects”, “Council of Economic Advisers”, or “National Security Council”; or 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 necessary for the administration of this section.

§ 3325 Appointments to scientific and professional positions

(a) Positions established under section 3104 of this title are in the competitive service. However, appointments to the positions are made without competitive examination on approval of the qualifications of the proposed appointee by the Office of Personnel Management on the basis of standards developed by the agency involved in accordance with criteria specified in regulations prescribed by the Director of the Office of Personnel Management.

(b) This section does not apply to positions established under section 3104(c).

(c) The Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to carry out the purpose of this section.

§ 3326 Appointments of retired members of the armed forces to positions in the Department of Defense

(a) For the purpose of this section, “member” and “Secretary concerned” have the meanings given them by section 101 of title 37 .

(b) A retired member of the armed forces may be appointed to a position in the civil service in or under the Department of Defense (including a nonappropriated fund instrumentality under the jurisdiction of the armed forces) during the period of 180 days immediately after his retirement only if— the proposed appointment is authorized by the Secretary concerned or his designee for the purpose, and, if the position is in the competitive service, after approval by the Office of Personnel Management; or the minimum rate of basic pay for the position has been increased under section 5305 of this title .

(c) A request by appropriate authority for the authorization, or the authorization and approval, as the case may be, required by subsection (b)(1) of this section shall be accompanied by a statement which shows the actions taken to assure that— full consideration, in accordance with placement and promotion procedures of the department concerned, was given to eligible career employees; when selection is by other than certification from an established civil service register, the vacancy has been publicized to give interested candidates an opportunity to apply; qualification requirements for the position have not been written in a manner designed to give advantage to the retired member; and the position has not been held open pending the retirement of the retired member.

§ 3327 Civil service employment information

(a) The Office of Personnel Management shall provide that information concerning opportunities to participate in competitive examinations conducted by, or under authority delegated by, the Office of Personnel Management shall be made available to the employment offices of the United States Employment Service.

(b) Subject to such regulations as the Office may issue, each agency shall promptly notify the Office and the employment offices of the United States Employment Service of— each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which the agency seeks applications from persons outside the Federal service, and the period during which applications will be accepted. As used in this subsection, “agency” means an agency as defined in section 5102(a)(1) of this title other than an agency all the positions in which are excepted by statute from the competitive service.

(c) The Office of Personnel Management may authorize the Department of Defense to use flexible outreach methods, including curated prospect sourcing, provided that all hiring opportunities remain publicly accessible and merit-based.

§ 3328 Selective Service registration

(a) An individual— who was born after December 31, 1959 , and is or was required to register under section 3 of the Military Selective Service Act ( 50 U.S.C. 3802 ) and who is not so registered or knowingly and willfully did not so register before the requirement terminated or became inapplicable to the individual, shall be ineligible for appointment to a position in an Executive agency.

(b) Subsection (a) shall not apply to an individual— who is a veteran; who provides evidence of active duty service to the Executive agency in which the individual seeks an appointment; and for whom the requirement to register under section 3 of the Military Selective Service Act ( 50 U.S.C. 3802 ) has terminated or is now inapplicable due to age.

(c) The Office of Personnel Management, in consultation with the Director of the Selective Service System, shall prescribe regulations to carry out this section. Such regulations shall include provisions prescribing procedures for the adjudication of determinations of whether a failure to register was knowing and willful. Such procedures shall require that such a determination may not be made if the individual concerned shows by a preponderance of the evidence that the failure to register was neither knowing nor willful. Such procedures may provide that determinations of eligibility under the requirements of this section shall be adjudicated by the Executive agency making the appointment for which the eligibility is determined.

(d) In this section, the terms “active duty” and “veteran” have the meaning given those terms in section 101 of title 38 .

§ 3329 Appointments of military reserve technicians to positions in the competitive service

(a) For the purpose of this section, the term “military reserve technician” has the meaning given the term “military technician (dual status)” by section 8401(30).

(b) The Secretary of Defense shall take such steps as may be necessary to ensure that, except as provided in subsection (d), any military reserve technician who is involuntarily separated from technician service, after completing at least 15 years of such service and 20 years of service creditable under section 12732 of title 10 , by reason of ceasing to satisfy the condition described in section 8401(30)(B) 1 shall, if appropriate written application is submitted within 1 year after the date of separation, be provided placement consideration in a position described in subsection (c) through a priority placement program of the Department of Defense.

(c) The position for which placement consideration shall be provided to a former military technician under subsection (b) shall be a position— in either the competitive service or the excepted service; within the Department of Defense; and in which the person is qualified to serve, taking into consideration whether the employee in that position is required to be a member of a reserve component of the armed forces as a condition of employment. To the maximum extent practicable, the position shall also be in a pay grade or other pay classification sufficient to ensure that the rate of basic pay of the former military technician, upon appointment to the position, is not less than the rate of basic pay last received by the former military technician for technician service before separation.

(d) This section shall not apply in the case of— an involuntary separation for cause on charges of misconduct or delinquency; or a technician who, as of the date of application under this section, is eligible for immediate (including for disability) or early retirement under subchapter III of chapter 83 or under chapter 84.

(e) The Secretary of Defense shall, in consultation with the Director of the Office of Personnel Management, prescribe such regulations as may be necessary to carry out this section.

§ 3330 Government-wide list of vacant positions

(a) For the purpose of this section, the term “agency” means an Executive agency, excluding the Government Accountability Office and any agency (or unit thereof) whose principal function is the conduct of foreign intelligence or counterintelligence activities, as determined by the President.

(b) The Office of Personnel Management shall establish and keep current a comprehensive list of all announcements of vacant positions in the competitive service within each agency that are to be filled by appointment for more than one year and for which applications are being (or will soon be) accepted from outside the agency’s work force.

(c) Included for any position listed shall be— a brief description of the position, including its title, tenure, location, and rate of pay; application procedures, including the period within which applications may be submitted and procedures for obtaining additional information; and any other information which the Office considers appropriate.

(d) The list shall be available to members of the public.

(e) The Office shall prescribe such regulations as may be necessary to carry out this section. Any requirement under this section that agencies notify the Office as to the availability of any vacant positions shall be designed so as to avoid any duplication of information otherwise required to be furnished under section 3327 of this title or any other provision of law.

(f) The Office may, to the extent it determines appropriate, charge such fees to agencies for services provided under this section and for related Federal employment information. The Office shall retain such fees to pay the costs of providing such services and information.

§ 3330a Preference eligibles; administrative redress

(a) A preference eligible who alleges that an agency has violated such individual’s rights under any statute or regulation relating to veterans’ preference may file a complaint with the Secretary of Labor. A veteran described in section 3304( l )(1) who alleges that an agency has violated such section with respect to such veteran may file a complaint with the Secretary of Labor. A complaint under this subsection must be filed within 60 days after the date of the alleged violation. Such complaint shall be in writing, be in such form as the Secretary may prescribe, specify the agency against which the complaint is filed, and contain a summary of the allegations that form the basis for the complaint. The Secretary shall, upon request, provide technical assistance to a potential complainant with respect to a complaint under this subsection.

(b) The Secretary of Labor shall investigate each complaint under subsection (a). In carrying out any investigation under this subsection, the Secretary’s duly authorized representatives shall, at all reasonable times, have reasonable access to, for purposes of examination, and the right to copy and receive, any documents of any person or agency that the Secretary considers relevant to the investigation. In carrying out any investigation under this subsection, the Secretary may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In case of disobedience of the subpoena or contumacy and on request of the Secretary, the Attorney General may apply to any district court of the United States in whose jurisdiction such disobedience or contumacy occurs for an order enforcing the subpoena. Upon application, the district courts of the United States shall have jurisdiction to issue writs commanding any person or agency to comply with the subpoena of the Secretary or to comply with any order of the Secretary made pursuant to a lawful investigation under this subsection and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order of the Secretary as a contempt of court.

(c) If the Secretary of Labor determines as a result of an investigation under subsection (b) that the action alleged in a complaint under subsection (a) occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the agency specified in the complaint complies with applicable provisions of statute or regulation relating to veterans’ preference. The Secretary of Labor shall make determinations referred to in subparagraph (A) based on a preponderance of the evidence. If the efforts of the Secretary under subsection (b) with respect to a complaint under subsection (a) do not result in the resolution of the complaint, the Secretary shall notify the person who submitted the complaint, in writing, of the results of the Secretary’s investigation under subsection (b).

(d) If the Secretary of Labor is unable to resolve a complaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought— before the 61st day after the date on which the complaint is filed; or later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2). An appeal under this subsection may not be brought unless— the complainant first provides written notification to the Secretary of such complainant’s intention to bring such appeal; and appropriate evidence of compliance with subparagraph (A) is included (in such form and manner as the Merit Systems Protection Board may prescribe) with the notice of appeal under this subsection. Upon receiving notification under paragraph (2)(A), the Secretary shall not continue to investigate or further attempt to resolve the complaint to which the notification relates.

(e) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board from any action which is appealable to the Board under any other law, rule, or regulation, in lieu of administrative redress under this section. A preference eligible may not pursue redress for an alleged violation described in subsection (a) under this section at the same time the preference eligible pursues redress for such violation under any other law, rule, or regulation.

§ 3330b Preference eligibles; judicial redress

(a) In lieu of continuing the administrative redress procedure provided under section 3330a(d), a preference eligible, or a veteran described by section 3330a(a)(1)(B) with respect to a violation described by such section, may elect, in accordance with this section, to terminate those administrative proceedings and file an action with the appropriate United States district court not later than 60 days after the date of the election.

(b) An election under this section may not be made— before the 121st day after the date on which the appeal is filed with the Merit Systems Protection Board under section 3330a(d); or after the Merit Systems Protection Board has issued a judicially reviewable decision on the merits of the appeal.

(c) An election under this section shall be made, in writing, in such form and manner as the Merit Systems Protection Board shall by regulation prescribe. The election shall be effective as of the date on which it is received, and the administrative proceeding to which it relates shall terminate immediately upon the receipt of such election.

§ 3330c Preference eligibles; remedy

(a) If the Merit Systems Protection Board (in a proceeding under section 3330a) or a court (in a proceeding under section 3330b) determines that an agency has violated a right described in section 3330a, the Board or court (as the case may be) shall order the agency to comply with such provisions and award compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. If the Board or court determines that such violation was willful, it shall award an amount equal to backpay as liquidated damages.

(b) A preference eligible who prevails in an action under section 3330a or 3330b shall be awarded reasonable attorney fees, expert witness fees, and other litigation expenses.

§ 3330d Appointment of military and Department of Defense, Department of State, and intelligence community spouses

(a) Definitions.— In this section: The term “active duty”— has the meaning given that term in section 101(d)(1) of title 10 ; includes full-time National Guard duty (as defined in section 101(d)(5) of title 10 ); and for a member of a reserve component (as described in section 10101 of title 10 ), does not include training duties or attendance at a service school. The term “agency”— has the meaning given the term “Executive agency” in section 105 of this title ; and does not include the Government Accountability Office. The term “covered spouse” means an individual who is married to an individual who— is an employee of the Department of State or an element of the intelligence community; or is a member of the Armed Forces who is assigned to an element of the intelligence community; and is transferred in the interest of the Government from one official station within the applicable agency to another within the agency (that is outside of normal commuting distance) for permanent duty. The term “intelligence community” has the meaning given the term in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 ). The term “remote work” refers to a work flexibility arrangement under which an employee— is not expected to physically report to the location from which the employee would otherwise work, considering the position of the employee; and performs the duties and responsibilities of such employee’s position, and other authorized activities, from an approved worksite— other than the location from which the employee would otherwise work; that may be inside or outside the local commuting area of the location from which the employee would otherwise work; and that is typically the residence of the employee. The term “spouse of a disabled or deceased member of the Armed Forces” means an individual— who is married to a member of the Armed Forces who— is retired, released, or discharged from the Armed Forces; and on the date on which the member retires, is released, or is discharged, has a disability rating of 100 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs; or who— was married to a member of the Armed Forces on the date on which the member dies while on active duty in the Armed Forces; and has not remarried. The term “spouse of an employee of the Department of Defense” means an individual who is married to an employee of the Department of Defense who is transferred in the interest of the Government from one official station within the Department to another within the Department (that is outside of normal commuting distance) for permanent duty. The term “telework” has the meaning given the term in section 6501.

(b) Appointment Authority.— The head of an agency may appoint noncompetitively— a spouse of a member of the Armed Forces on active duty; a spouse of a disabled or deceased member of the Armed Forces; a spouse of a member of the Armed Forces on active duty, or a spouse of a disabled or deceased member of the Armed Forces, to a position in which the spouse will engage in remote work; a spouse of an employee of the Department of Defense, including to a position in which the spouse will engage in remote work; or a covered spouse to a position in which the covered spouse will engage in remote work.

(c) Special Rules Regarding Spouse of a Disabled or Deceased Member of the Armed Forces.— An appointment of an eligible spouse as described in subparagraph (A) or (B) of subsection (a)(4) is not restricted to a geographical area. A spouse of a disabled or deceased member of the Armed Forces may not receive more than 1 permanent appointment under this section.

§ 3330e Review of official personnel file of former Federal employees before rehiring

(a) If a former Government employee is a candidate for a position within the competitive service or the excepted service, prior to making any determination with respect to the appointment or reinstatement of such employee to such position, the appointing authority shall review and consider merit-based information relating to such employee’s former period or periods of service such as official personnel actions, employee performance ratings, and disciplinary actions, if any, in such employee’s official personnel record file.

(b) In subsection (a), the term “former Government employee” means an individual whose most recent position with the Government prior to becoming a candidate as described under subsection (a) was within the competitive service or the excepted service.

(c) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this section. Such regulations may not contain provisions that would increase the time required for agency hiring actions.

§ 3330f Government policy and supporting position data

(a) Definitions.— In this section: The term “agency” means— any Executive agency, the United States Postal Service, and the Postal Regulatory Commission; the Architect of the Capitol, the Government Accountability Office, the Government Publishing Office, and the Library of Congress; and the Executive Office of the President and any component within that Office (including any successor component), including— the Council of Economic Advisors; the Council on Environmental Quality; the National Security Council; the Office of the Vice President; the Office of Policy Development; the Office of Administration; the Office of Management and Budget; the Office of the United States Trade Representative; the Office of Science and Technology Policy; the Office of National Drug Control Policy; and the White House Office, including the White House Office of Presidential Personnel. The term “appointee”— means an individual serving in a policy and supporting position; and includes an individual serving in such a position temporarily in an acting capacity in accordance with— sections 3345 through 3349d (commonly referred to as the “Federal Vacancies Reform Act of 1998”); any other statutory provision described in section 3347(a)(1); or a Presidential appointment described in section 3347(a)(2). The term “covered website” means the website established and maintained by the Director under subsection (b). The term “Director” means the Director of the Office of Personnel Management. The term “policy and supporting position”— means any position at an agency, as determined by the Director, that, but for this section and section 2(b)(3) of the PLUM Act of 2022, would be included in the publication entitled “United States Government Policy and Supporting Positions”, (commonly referred to as the “Plum Book”); and may include— a position on any level of the Executive Schedule under subchapter II of chapter 53, or another position with an equivalent rate of pay; a general position (as defined in section 3132(a)(9)) in the Senior Executive service; a position in the Senior Foreign Service; a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or any successor regulation; and any other position classified at or above level GS–14 of the General Schedule (or equivalent) that is excepted from the competitive service by law because of the confidential or policy-determining nature of the position duties.

(b) Establishment of Website.— Not later than 1 year after the date of enactment of the PLUM Act of 2022, the Director shall establish, and thereafter the Director shall maintain, a public website containing the following information for the President in office on the date of establishment and for each subsequent President: Each policy and supporting position in the Federal Government, including any such position that is vacant. The name of each individual who— is serving in a position described in paragraph (1); or previously served in a position described in such paragraph under the applicable President. Information on— any Government-wide or agency-wide limitation on the total number of positions in the Senior Executive Service under section 3133 or 3134 or the total number of positions under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations; and the total number of individuals occupying such positions.

(c) Contents.— With respect to any policy and supporting position listed on the covered website, the Director shall include— the agency, and agency component, (including the agency and bureau code used by the Office of Management and Budget) in which the position is located; the name of the position; the name of the individual occupying the position (if any); the geographic location of the position, including the city, State or province, and country; the pay system under which the position is paid; the level, grade, or rate of pay; the term or duration of the appointment (if any); the expiration date, in the case of a time-limited appointment; a unique identifier for each appointee; whether the position is vacant; and for any position that is vacant— for a position for which appointment is required to be made by the President, by and with the advice and consent of the Senate, the name of the acting official; and for other positions, the name of the official performing the duties of the vacant position.

(d) Current Data.— For each agency, the Director shall indicate in the information on the covered website the date that the agency last updated the data.

(e) Format.— The Director shall make the data on the covered website available to the public at no cost over the internet in a searchable, sortable, downloadable, and machine-readable format so that the data qualifies as an open Government data asset, as defined in section 3502 of title 44 .

(f) Authority of Director.— Each agency shall provide to the Director any information that the Director determines necessary to establish and maintain the covered website, including the information uploaded under paragraph (4). Not later than 1 year after the date of enactment of the PLUM Act of 2022, the Director shall issue instructions to agencies with specific requirements for the provision or uploading of information required under paragraph (1), including— specific data standards that an agency shall follow to ensure that the information is complete, accurate, and reliable; data quality assurance methods; and the timeframe during which an agency shall provide or upload the information, including the timeframe described under paragraph (4). The Director shall identify on the covered website any agency that has failed to provide— the information required by the Director; complete, accurate, and reliable information; or the information during the timeframe specified by the Director. Not later than 90 days after the date on which the covered website is established, and not less than once during each year thereafter, the head of each agency shall upload to the covered website updated information (if any) on— the policy and supporting positions in the agency; the appointees occupying such positions in the agency; and the former appointees who served in such positions in the agency under the President then in office. Information provided under subparagraph (A) shall supplement, not supplant, previously provided information under that subparagraph. The Director shall establish a central help desk, to be operated by not more than 1 full-time employee, to assist any agency with implementing this section. The Director may designate 1 or more agencies to participate in the development, establishment, operation, and support of the covered website. With respect to any such designation, the Director may specify the scope of the responsibilities of the agency so designated. The Director shall make available on the covered website information regarding data collection standards, quality assurance methods, and time frames for reporting data to the Director. The Director may prescribe regulations necessary for the administration of this section.

(g) Responsibility of Agencies.— Each agency shall comply with the instructions and guidance issued by the Director to carry out this section, and, upon request of the Director, shall provide appropriate assistance to the Director to ensure the successful operation of the covered website in the manner and within the timeframe specified by the Director under subsection (f)(2). With respect to any submission of information described in paragraph (1), the head of an agency shall include— an explanation of how the agency ensured the information is complete, accurate, and reliable; and a certification that the information is complete, accurate, and reliable.

(h) Information Verification.— On the date that is 90 days after the date on which the covered website is established, the Director, in coordination with the White House Office of Presidential Personnel, shall confirm that the information on the covered website is complete, accurate, reliable, and up-to-date. On the date on which the Director makes a confirmation under subparagraph (A), the Director shall publish on the covered website a certification that the confirmation has been made. In carrying out paragraph (1), the Director may— request additional information from an agency; and use any additional information provided to the Director or the White House Office of Presidential Personnel for the purposes of verification. The Director shall establish a process under which members of the public may provide feedback regarding the accuracy of the information on the covered website.

(i) Data Archiving.— As soon as practicable after a transitional inauguration day (as defined in section 3349a), the Director, in consultation with the Archivist of the United States, shall archive the data that was compiled on the covered website for the preceding presidential administration. The Director shall make the data described in paragraph (1) publicly available over the internet— on, or through a link on, the covered website; at no cost; and in a searchable, sortable, downloadable, and machine-readable format.

§ 3330g DOD use of shared talent pools and structured assessments

(a) Shared Talent Pools.— The Department of Defense may share certificates of eligibles and curated prospect pools within the Department. Certificates issued under this authority shall remain valid for not less than one year from the date of issuance, subject to agency-specific qualification checks.

(b) Structured Assessments.— The Department of Defense shall use validated structured interviews, technical evaluations, or other skills-based assessments as part of the hiring process for competitive service positions at the Department, in accordance with regulations prescribed by the Office of Personnel Management.

§ 3331 Oath of office

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 424 .)

§ 3332 Officer affidavit; no consideration paid for appointment

An officer, within 30 days after the effective date of his appointment, shall file with the oath of office required by section 3331 of this title an affidavit that neither he nor anyone acting in his behalf has given, transferred, promised, or paid any consideration for or in the expectation or hope of receiving assistance in securing the appointment. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 424 .)

§ 3333 Employee affidavit; loyalty and striking against the Government

(a) Except as provided by subsection (b) of this section, an individual who accepts office or employment in the Government of the United States or in the government of the District of Columbia shall execute an affidavit within 60 days after accepting the office or employment that his acceptance and holding of the office or employment does not or will not violate section 7311 of this title . The affidavit is prima facie evidence that the acceptance and holding of office or employment by the affiant does not or will not violate section 7311 of this title .

(b) An affidavit is not required from an individual employed by the Government of the United States or the government of the District of Columbia for less than 60 days for sudden emergency work involving the loss of human life or the destruction of property. This subsection does not relieve an individual from liability for violation of section 7311 of this title .

“SECTION 1 SHORT TITLE.

“This Act may be cited as the ‘Federal Rotational Cyber Workforce Program Act of 2021’.

“SEC. 2 DEFINITIONS.

“In this Act: The term ‘agency’ has the meaning given the term ‘Executive agency’ in section 105 of title 5 , United States Code, except that the term does not include the Government Accountability Office. The term ‘competitive service’ has the meaning given that term in section 2102 of title 5 , United States Code. The term ‘Councils’ means— the Chief Human Capital Officers Council established under section 1303 of the Chief Human Capital Officers Act of 2002 [ Pub. L. 107–296, title XIII ] ( 5 U.S.C. 1401 note); and the Chief Information Officers Council established under section 3603 of title 44 , United States Code. The term ‘cyber workforce position’ means a position identified as having information technology, cybersecurity, or other cyber-related functions under section 303 of the Federal Cybersecurity Workforce Assessment Act of 2015 [ Pub. L. 114–113, div. N, title III ] ( 5 U.S.C. 301 note). The term ‘Director’ means the Director of the Office of Personnel Management. The term ‘employee’ has the meaning given the term in section 2105 of title 5 , United States Code. The term ‘employing agency’ means the agency from which an employee is detailed to a rotational cyber workforce position. The term ‘excepted service’ has the meaning given that term in section 2103 of title 5 , United States Code. The term ‘rotational cyber workforce position’ means a cyber workforce position with respect to which a determination has been made under section 3(a)(1). The term ‘rotational cyber workforce program’ means the program for the detail of employees among rotational cyber workforce positions at agencies. The term ‘Secretary’ means the Secretary of Homeland Security.

“SEC. 3 ROTATIONAL CYBER WORKFORCE POSITIONS.

(“(a) Determination With Respect to Rotational Service.— The head of each agency may determine that a cyber workforce position in that agency is eligible for the rotational cyber workforce program, which shall not be construed to modify the requirement under section 4(b)(3) that participation in the rotational cyber workforce program by an employee shall be voluntary. The head of an agency shall submit to the Director— notice regarding any determination made by the head of the agency under paragraph (1); and for each position with respect to which the head of the agency makes a determination under paragraph (1), the information required under subsection (b)(1).

(“(b) Preparation of List.— The Director, with assistance from the Councils and the Secretary, shall develop a list of rotational cyber workforce positions that— with respect to each such position, to the extent that the information does not disclose sensitive national security information, includes— the title of the position; the occupational series with respect to the position; the grade level or work level with respect to the position; the agency in which the position is located; the duty location with respect to the position; and the major duties and functions of the position; and shall be used to support the rotational cyber workforce program.

(“(c) Distribution of List.— Not less frequently than annually, the Director shall distribute an updated list developed under subsection (b) to the head of each agency and other appropriate entities.

“SEC. 4 ROTATIONAL CYBER WORKFORCE PROGRAM.

(“(a) Operation Plan.— Not later than 270 days after the date of enactment of this Act [ June 21, 2022 ], and in consultation with the Councils, the Secretary, representatives of other agencies, and any other entity as the Director determines appropriate, the Director shall develop and issue a Federal Rotational Cyber Workforce Program operation plan providing policies, processes, and procedures for a program for the detailing of employees among rotational cyber workforce positions at agencies, which may be incorporated into and implemented through mechanisms in existence on the date of enactment of this Act. The Director may, in consultation with the Councils, the Secretary, and other entities as the Director determines appropriate, periodically update the operation plan developed and issued under paragraph (1).

(“(b) Requirements.— The operation plan developed and issued under subsection (a) shall, at a minimum— identify agencies for participation in the rotational cyber workforce program; establish procedures for the rotational cyber workforce program, including— any training, education, or career development requirements associated with participation in the rotational cyber workforce program; any prerequisites or requirements for participation in the rotational cyber workforce program; and appropriate rotational cyber workforce program performance measures, reporting requirements, employee exit surveys, and other accountability devices for the evaluation of the program; provide that participation in the rotational cyber workforce program by an employee shall be voluntary; provide that an employee shall be eligible to participate in the rotational cyber workforce program if the head of the employing agency of the employee, or a designee of the head of the employing agency of the employee, approves of the participation of the employee; provide that the detail of an employee to a rotational cyber workforce position under the rotational cyber workforce program shall be on a nonreimbursable basis; provide that agencies may agree to partner to ensure that the employing agency of an employee that participates in the rotational cyber workforce program is able to fill the position vacated by the employee; require that an employee detailed to a rotational cyber workforce position under the rotational cyber workforce program, upon the end of the period of service with respect to the detail, shall be entitled to return to the position held by the employee, or an equivalent position, in the employing agency of the employee without loss of pay, seniority, or other rights or benefits to which the employee would have been entitled had the employee not been detailed; provide that discretion with respect to the assignment of an employee under the rotational cyber workforce program shall remain with the employing agency of the employee; require that an employee detailed to a rotational cyber workforce position under the rotational cyber workforce program in an agency that is not the employing agency of the employee shall have all the rights that would be available to the employee if the employee were detailed under a provision of law other than this Act from the employing agency to the agency in which the rotational cyber workforce position is located; provide that participation by an employee in the rotational cyber workforce program shall not constitute a change in the conditions of the employment of the employee; and provide that an employee participating in the rotational cyber workforce program shall receive performance evaluations relating to service in the rotational cyber workforce program in a participating agency that are— prepared by an appropriate officer, supervisor, or management official of the employing agency, acting in coordination with the supervisor at the agency in which the employee is performing service in the rotational cyber workforce position; based on objectives identified in the operation plan with respect to the employee; and based in whole or in part on the contribution of the employee to the agency in which the employee performed such service, as communicated from that agency to the employing agency of the employee.

(“(c) Program Requirements for Rotational Service.— An employee serving in a cyber workforce position in an agency may, with the approval of the head of the agency, submit an application for detail to a rotational cyber workforce position that appears on the list developed under section 3(b). An employee serving in a position in the excepted service may only be selected for a rotational cyber workforce position that is in the competitive service with the prior approval of the Office of Personnel Management, in accordance with section 300.301 of title 5, Code of Federal Regulations, or any successor thereto. The head of an agency shall select an employee for a rotational cyber workforce position under the rotational cyber workforce program in a manner that is consistent with the merit system principles under section 2301(b) of title 5 , United States Code. Except as provided in subparagraph (C), and notwithstanding section 3341(b) of title 5 , United States Code, a detail to a rotational cyber workforce position shall be for a period of not less than 180 days and not more than 1 year. The Chief Human Capital Officer of the agency to which an employee is detailed under the rotational cyber workforce program may extend the period of a detail described in subparagraph (B) for a period of 60 days unless the Chief Human Capital Officer of the employing agency of the employee objects to that extension. The detail of an employee to a rotational cyber workforce position shall be contingent upon the employee entering into a written service agreement with the employing agency under which the employee is required to complete a period of employment with the employing agency following the conclusion of the detail that is equal in length to the period of the detail. A written service agreement under subparagraph (A) shall not supersede or modify the terms or conditions of any other service agreement entered into by the employee under any other authority or relieve the obligations between the employee and the employing agency under such a service agreement. Nothing in this subparagraph prevents an employing agency from terminating a service agreement entered into under any other authority under the terms of such agreement or as required by law or regulation.

“SEC. 5 REPORTING BY GAO.

“Not later than the end of the third fiscal year after the fiscal year in which the operation plan under section 4(a) is issued, the Comptroller General of the United States shall submit to Congress a report assessing the operation and effectiveness of the rotational cyber workforce program, which shall address, at a minimum— the extent to which agencies have participated in the rotational cyber workforce program, including whether the head of each such participating agency has— identified positions within the agency that are rotational cyber workforce positions; had employees from other participating agencies serve in positions described in subparagraph (A); and had employees of the agency request to serve in rotational cyber workforce positions under the rotational cyber workforce program in participating agencies, including a description of how many such requests were approved; and the experiences of employees serving in rotational cyber workforce positions under the rotational cyber workforce program, including an assessment of— the period of service; the positions (including grade level and occupational series or work level) held by employees before completing service in a rotational cyber workforce position under the rotational cyber workforce program; the extent to which each employee who completed service in a rotational cyber workforce position under the rotational cyber workforce program achieved a higher skill level, or attained a skill level in a different area, with respect to information technology, cybersecurity, or other cyber-related functions; and the extent to which service in rotational cyber workforce positions has affected intra-agency and interagency integration and coordination of cyber practices, functions, and personnel management.

“SEC. 6 SUNSET.

“Effective 5 years after the date of enactment of this Act [ June 21, 2022 ], this Act is repealed.”

§ 3341 Details; within Executive or military departments

(a) The head of an Executive department or military department may detail employees among the bureaus and offices of his department, except employees who are required by law to be exclusively engaged on some specific work.

(b) Details under subsection (a) of this section may be made only by written order of the head of the department, and may be for not more than 120 days. These details may be renewed by written order of the head of the department, in each particular case, for periods not exceeding 120 days. The 120-day limitation in paragraph (1) for details and renewals of details does not apply to the Department of Defense in the case of a detail— made in connection with the closure or realignment of a military installation pursuant to a base closure law or an organizational restructuring of the Department as part of a reduction in the size of the armed forces or the civilian workforce of the Department; and in which the position to which the employee is detailed is eliminated on or before the date of the closure, realignment, or restructuring.

(c) For purposes of this section, the term “base closure law” has the meaning given such term in section 101(a)(17) of title 10 .

[§ 3342 Repealed. Pub. L. 102–378, § 2(13)(A), Oct. 2, 1992, 106 Stat. 1347]

§ 3343 Details; to international organizations

(a) For the purpose of this section— “agency”, “employee”, and “international organization” have the meanings given them by section 3581 of this title ; and “detail” means the assignment or loan of an employee to an international organization without a change of position from the agency by which he is employed to an international organization.

(b) The head of an agency may detail, for a period of not more than 5 years, an employee of his agency to an international organization which requests services, except that under special circumstances, where the President determines it to be in the national interest, he may extend the 5-year period for up to an additional 3 years.

(c) An employee detailed under subsection (b) of this section is deemed, for the purpose of preserving his allowances, privileges, rights, seniority, and other benefits, an employee of the agency from which detailed, and he is entitled to pay, allowances, and benefits from funds available to that agency. The authorization and payment of these allowances and other benefits from appropriations available therefor is deemed to comply with section 5536 of this title .

(d) Details may be made under subsection (b) of this section— without reimbursement to the United States by the international organization; or with agreement by the international organization to reimburse the United States for all or part of the pay, travel expenses, and allowances payable during the detail, and the reimbursement shall be credited to the appropriation, fund, or account used for paying the amounts reimbursed.

(e) An employee detailed under subsection (b) of this section may be paid or reimbursed by an international organization for allowances or expenses incurred in the performance of duties required by the detail, without regard to section 209 of title 18 .

§ 3344 Details; administrative law judges

An agency as defined by section 551 of this title which occasionally or temporarily is insufficiently staffed with administrative law judges appointed under section 3105 of this title may use administrative law judges selected by the Office of Personnel Management from and with the consent of other agencies. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 425 ; Pub. L. 95–251, § 2(a)(1) , (b)(2), Mar. 27, 1978 , 92 Stat. 183 ; Pub. L. 95–454, title IX, § 906(a)(2) , Oct. 13, 1978 , 92 Stat. 1224 .)

§ 3345 Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office— the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346; notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if— during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.

(b) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if— during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person— did not serve in the position of first assistant to the office of such officer; or served in the position of first assistant to the office of such officer for less than 90 days; and the President submits a nomination of such person to the Senate for appointment to such office. Paragraph (1) shall not apply to any person if— such person is serving as the first assistant to the office of an officer described under subsection (a); the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and the Senate has approved the appointment of such person to such office.

(c) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die. For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.

§ 3346 Time limitation

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office— for no longer than 210 days beginning on the date the vacancy occurs; or subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return. Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve— until the second nomination is confirmed; or for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

§ 3347 Exclusivity

(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless— a statutory provision expressly— authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.

(b) Any statutory provision providing general authority to the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(1) applies.

§ 3348 Vacant office

(a) In this section— the term “action” includes any agency action as defined under section 551(13); and the term “function or duty” means any function or duty of the applicable office that— is established by statute; and is required by statute to be performed by the applicable officer (and only that officer); or is established by regulation; and is required by such regulation to be performed by the applicable officer (and only that officer); and includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs.

(b) Unless an officer or employee is performing the functions and duties in accordance with sections 3345, 3346, and 3347, if an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office— the office shall remain vacant; and in the case of an office other than the office of the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office), only the head of such Executive agency may perform any function or duty of such office.

(c) If the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period.

(d) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect. An action that has no force or effect under paragraph (1) may not be ratified.

(e) This section shall not apply to— the General Counsel of the National Labor Relations Board; the General Counsel of the Federal Labor Relations Authority; any Inspector General appointed by the President, by and with the advice and consent of the Senate; any Chief Financial Officer appointed by the President, by and with the advice and consent of the Senate; or an office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) if a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.

§ 3349 Reporting of vacancies

(a) The head of each Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) shall submit to the Comptroller General of the United States and to each House of Congress— notification of a vacancy in an office to which this section and sections 3345, 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d apply and the date such vacancy occurred immediately upon the occurrence of the vacancy; the name of any person serving in an acting capacity and the date such service began immediately upon the designation; the name of any person nominated to the Senate to fill the vacancy and the date such nomination is submitted immediately upon the submission of the nomination; and the date of a rejection, withdrawal, or return of any nomination immediately upon such rejection, withdrawal, or return.

(b) If the Comptroller General of the United States makes a determination that an officer is serving longer than the 210-day period including the applicable exceptions to such period under section 3346 or section 3349a, the Comptroller General shall report such determination immediately to— the Committee on Governmental Affairs of the Senate; the Committee on Government Reform and Oversight of the House of Representatives; the Committees on Appropriations of the Senate and House of Representatives; the appropriate committees of jurisdiction of the Senate and House of Representatives; the President; and the Office of Personnel Management.

§ 3349a Presidential inaugural transitions

(a) In this section, the term “transitional inauguration day” means the date on which any person swears or affirms the oath of office as President, if such person is not the President on the date preceding the date of swearing or affirming such oath of office.

(b) With respect to any vacancy that exists during the 60-day period beginning on a transitional inauguration day, the 210-day period under section 3346 or 3348 shall be deemed to begin on the later of the date occurring— 90 days after such transitional inauguration day; or 90 days after the date on which the vacancy occurs.

§ 3349b Holdover provisions

Sections 3345 through 3349a shall not be construed to affect any statute that authorizes a person to continue to serve in any office— after the expiration of the term for which such person is appointed; and until a successor is appointed or a specified period of time has expired. (Added Pub. L. 105–277, div. C, title I, § 151(b) , Oct. 21, 1998 , 112 Stat. 2681–615 .)

§ 3349c Exclusion of certain officers

Sections 3345 through 3349b shall not apply to— any member who is appointed by the President, by and with the advice and consent of the Senate to any board, commission, or similar entity that— is composed of multiple members; and governs an independent establishment or Government corporation; any commissioner of the Federal Energy Regulatory Commission; any member of the Surface Transportation Board; or any judge appointed by the President, by and with the advice and consent of the Senate, to a court constituted under article I of the United States Constitution. (Added Pub. L. 105–277, div. C, title I, § 151(b) , Oct. 21, 1998 , 112 Stat. 2681–615 .)

§ 3349d Notification of intent to nominate during certain recesses or adjournments

(a) The submission to the Senate, during a recess or adjournment of the Senate in excess of 15 days, of a written notification by the President of the President’s intention to submit a nomination after the recess or adjournment shall be considered a nomination for purposes of sections 3345 through 3349c if such notification contains the name of the proposed nominee and the office for which the person is nominated.

(b) If the President does not submit a nomination of the person named under subsection (a) within 2 days after the end of such recess or adjournment, effective after such second day the notification considered a nomination under subsection (a) shall be treated as a withdrawn nomination for purposes of sections 3345 through 3349c.

§ 3349e Presidential explanation of failure to nominate an inspector general

If the President fails to make a formal nomination for a vacant inspector general position that requires a formal nomination by the President to be filled within the period beginning on the later of the date on which the vacancy occurred or on which a nomination is rejected, withdrawn, or returned, and ending on the day that is 210 days after that date, the President shall communicate, within 30 days after the end of such period and not later than June 1 of each year thereafter, to the appropriate congressional committees, as defined in section 12 of the Inspector General Act of 1978 (5 U.S.C. App.) 1 — the reasons why the President has not yet made a formal nomination; and a target date for making a formal nomination. (Added Pub. L. 117–263, div. E, title LII, § 5221(a) , Dec. 23, 2022 , 136 Stat. 3234 .)

§ 3351 Preference eligibles; transfer; physical qualifications; waiver

In determining qualifications of a preference eligible for transfer to another position in the competitive service, an Executive agency, or the government of the District of Columbia, the Office of Personnel Management or other examining agency shall waive— requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position. This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 426 ; Pub. L. 94–183, § 2(4) , Dec. 31, 1975 , 89 Stat. 1057 ; Pub. L. 95–454, title IX, § 906(a)(2) , (3), Oct. 13, 1978 , 92 Stat. 1224 .)

§ 3352 Preference in transfers for employees making certain disclosures

(a) Subject to the provisions of subsections (d) and (e), in filling a position within any Executive agency, the head of such agency may give preference to any employee of such agency, or any other Executive agency, to transfer to a position of the same status and tenure as the position of such employee on the date of applying for a transfer under subsection (b) if— such employee is otherwise qualified for such position; such employee is eligible for appointment to such position; and the Merit Systems Protection Board makes a determination under the provisions of chapter 12 that a prohibited personnel action described under section 2302(b)(8) was taken against such employee.

(b) An employee who meets the conditions described under subsection (a)(1), (2), and (3) may voluntarily apply for a transfer to a position, as described in subsection (a), within the Executive agency employing such employee or any other Executive agency.

(c) If an employee applies for a transfer under the provisions of subsection (b) and the selecting official rejects such application, the selecting official shall provide the employee with a written notification of the reasons for the rejection within 30 days after receiving such application.

(d) An employee whose application for transfer is rejected under the provisions of subsection (c) may request the head of such agency to review the rejection. Such request for review shall be submitted to the head of the agency within 30 days after the employee receives notification under subsection (c). Within 30 days after receiving a request for review, the head of the agency shall complete the review and provide a written statement of findings to the employee and the Merit Systems Protection Board.

(e) The provisions of subsection (a) shall apply with regard to any employee— for no more than 1 transfer; for a transfer from or within the agency such employee is employed at the time of a determination by the Merit Systems Protection Board that a prohibited personnel action as described under section 2302(b)(8) was taken against such employee; and no later than 18 months after such a determination is made by the Merit Systems Protection Board.

(f) Notwithstanding the provisions of subsection (a), no preference may be given to any employee applying for a transfer under subsection (b), with respect to a preference eligible (as defined under section 2108(3)) applying for the same position.

§ 3361 Promotion; competitive service; examination

(a) In General.— An individual may be promoted in the competitive service only if he has passed an examination or is specifically excepted from examination under section 3302 of this title . This section does not take from the President any authority conferred by section 3301 of this title that is consistent with the provisions of this title governing the competitive service.

(b) DOD Promotions.— Promotions in the competitive service within the Department of Defense may be made based on demonstrated skills and qualifications without regard to minimum time-in-grade requirements, subject to agency policies and applicable merit system principles.

§ 3362 Promotion; effect of incentive award

An agency, in qualifying and selecting an employee for promotion, shall give due weight to an incentive award under chapter 45 of this title. For the purpose of this section, “agency” and “employee” have the meanings given them by section 4501 of this title . ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 426 .)

§ 3363 Preference eligibles; promotion; physical qualifications; waiver

In determining qualifications of a preference eligible for promotion to another position in the competitive service, an Executive agency, or the government of the District of Columbia, the Office of Personnel Management or other examining agency shall waive— requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position. This section does not apply to an appointment required by Congress to be confirmed by, or made with the advice and consent of, the Senate. ( Pub. L. 89–554 , Sept. 6, 1966 , 80 Stat. 427 ; Pub. L. 94–183, § 2(5) , Dec. 31, 1975 , 89 Stat. 1057 ; Pub. L. 95–454, title IX, § 906(a)(2) , (3), Oct. 13, 1978 , 92 Stat. 1224 .)

[§ 3364 Repealed. Pub. L. 94–183, § 2(6), Dec. 31, 1975, 89 Stat. 1057]

§ 3371 Definitions

For the purpose of this subchapter— “State” means— a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and a territory or possession of the United States; and an instrumentality or authority of a State or States as defined in subparagraph (A) of this paragraph (1) and a Federal-State authority or instrumentality; “local government” means— any political subdivision, instrumentality, or authority of a State or States as defined in subparagraph (A) of paragraph (1); any general or special purpose agency of such a political subdivision, instrumentality, or authority; and any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village as defined in the Alaska Native Claims Settlement Act ( 85 Stat. 688 ), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and includes any tribal organization as defined in section 4 of the Indian Self-Determination and Education Assistance Act; “Federal agency” means an Executive agency, military department, a court of the United States, the Administrative Office of the United States Courts, the Library of Congress, the Botanic Garden, the Government Publishing Office, the Congressional Budget Office, the United States Postal Service, the Postal Regulatory Commission, the Office of the Architect of the Capitol, the Office of Technology Assessment, and such other similar agencies of the legislative and judicial branches as determined appropriate by the Office of Personnel Management; and “other organization” means— a national, regional, State-wide, area-wide, or metropolitan organization representing member State or local governments; an association of State or local public officials; a nonprofit organization which has as one of its principal functions the offering of professional advisory, research, educational, or development services, or related services, to governments or universities concerned with public management; or a federally funded research and development center. (Added Pub. L. 91–648, title IV, § 402(a) , Jan. 5, 1971 , 84 Stat. 1920 ; amended Pub. L. 93–638, title I, § 104(a) , formerly § 105(a), Jan. 4, 1975 , 88 Stat. 2208 , renumbered § 104(a), Pub. L. 100–472, title II, § 203(a) , Oct. 5, 1988 , 102 Stat. 2290 ; Pub. L. 95–454, title VI, § 603(a) , Oct. 13, 1978 , 92 Stat. 1189 ; Pub. L. 100–472, title II, § 203(b) , Oct. 5, 1988 , 102 Stat. 2290 ; Pub. L. 101–301, § 2(c) , May 24, 1990 , 104 Stat. 207 ; Pub. L. 103–337, div. A, title X, § 1068(a) , Oct. 5, 1994 , 108 Stat. 2852 ; Pub. L. 109–435, title VI, § 604(b) , Dec. 20, 2006 , 120 Stat. 3241 ; Pub. L. 113–235, div. H, title I, § 1301(b) , Dec. 16, 2014 , 128 Stat. 2537 .)

§ 3372 General provisions

(a) On request from or with the concurrence of a State or local government, and with the consent of the employee concerned, the head of a Federal agency may arrange for the assignment of— an employee of his agency, other than a noncareer appointee, limited term appointee, or limited emergency appointee (as such terms are defined in section 3132(a) of this title ) in the Senior Executive Service and an employee in a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character, to a State or local government; and an employee of a State or local government to his agency; for work of mutual concern to his agency and the State or local government that he determines will be beneficial to both. The period of an assignment under this subchapter may not exceed two years. However, the head of a Federal agency may extend the period of assignment for not more than two additional years. In the case of assignments made to Indian tribes or tribal organizations as defined in section 3371(2)(C) of this subchapter, the head of an executive agency may extend the period of assignment for any period of time where it is determined that this will continue to benefit both the executive agency and the Indian tribe or tribal organization. If the assigned employee fails to complete the period of assignment and there is another employee willing and available to do so, the Secretary may assign the employee to complete the period of assignment and may execute an agreement with the tribal organization with respect to the replacement employee. That agreement may provide for a different period of assignment as may be agreed to by the Secretary and the tribal organization.

(b) This subchapter is authority for and applies to the assignment of— an employee of a Federal agency to an institution of higher education; an employee of an institution of higher education to a Federal agency; an employee of a Federal agency to any other organization; and an employee of an other organization to a Federal agency.

(c) An employee of a Federal agency may be assigned under this subchapter only if the employee agrees, as a condition of accepting an assignment under this subchapter, to serve in the civil service upon the completion of the assignment for a period equal to the length of the assignment. Each agreement required under paragraph (1) of this subsection shall provide that in the event the employee fails to carry out the agreement (except for good and sufficient reason, as determined by the head of the Federal agency from which assigned) the employee shall be liable to the United States for payment of all expenses (excluding salary) of the assignment. The amount shall be treated as a debt due the United States.

(d) Where the employee is assigned to a tribal organization, the employee shall be eligible for promotions, periodic step-increases, and additional step-increases, as defined in chapter 53 of this title, on the same basis as other Federal employees.

(e) Under regulations prescribed pursuant to section 3376 of this title — an assignment of an employee of a Federal agency to an other organization or an institution of higher education, and an employee so assigned, shall be treated in the same way as an assignment of an employee of a Federal agency to a State or local government, and an employee so assigned, is treated under the provisions of this subchapter governing an assignment of an employee of a Federal agency to a State or local government, except that the rate of pay of an employee assigned to a federally funded research and development center may not exceed the rate of pay that such employee would be paid for continued service in the position in the Federal agency from which assigned; and an assignment of an employee of an other organization or an institution of higher education to a Federal agency, and an employee so assigned, shall be treated in the same way as an assignment of an employee of a State or local government to a Federal agency, and an employee so assigned, is treated under the provisions of this subchapter governing an assignment of an employee of a State or local government to a Federal agency.

§ 3373 Assignment of employees to State or local governments

(a) An employee of a Federal agency assigned to a State or local government under this subchapter is deemed, during the assignment, to be either— on detail to a regular work assignment in his agency; or on leave without pay from his position in the agency. An employee assigned either on detail or on leave without pay remains an employee of his agency. The Federal Tort Claims Act and any other Federal tort liability statute apply to an employee so assigned. The supervision of the duties of an employee on detail may be governed by agreement between the Federal agency and the State or local government concerned.

(b) The assignment of an employee of a Federal agency either on detail or on leave without pay to a State or local government under this subchapter may be made with or without reimbursement by the State or local government for the travel and transportation expenses to or from the place of assignment and for the pay, or supplemental pay, or a part thereof, of the employee during assignment. Any reimbursements shall be credited to the appropriation of the Federal agency used for paying the travel and transportation expenses or pay.

(c) For any employee so assigned and on leave without pay— if the rate of pay for his employment by the State or local government is less than the rate of pay he would have received had he continued in his regular assignment in the agency, he is entitled to receive supplemental pay from the agency in an amount equal to the difference between the State or local government rate and the agency rate; he is entitled to annual and sick leave to the same extent as if he had continued in his regular assignment in the agency; and he is entitled, notwithstanding other statutes— to continuation of his insurance under chapter 87 of this title, and coverage under chapter 89 of this title or other applicable authority, so long as he pays currently into the Employee’s Life Insurance Fund and the Employee’s Health Benefits Fund or other applicable health benefits system (through his employing agency) the amount of the employee contributions; to credit the period of his assignment under this subchapter toward periodic step-increases, retention, and leave accrual purposes, and, on payment into the Civil Service Retirement and Disability Fund or other applicable retirement system of the percentage of his State or local government pay, and of his supplemental pay, if any, that would have been deducted from a like agency pay for the period of the assignment and payment by the Federal agency into the fund or system of the amount that would have been payable by the agency during the period of the assignment with respect to a like agency pay, to treat his service during that period as service of the type performed in the agency immediately before his assignment; and for the purpose of subchapter I of chapter 85 of this title, to credit the service performed during the period of his assignment under this subchapter as Federal service, and to consider his State or local government pay (and his supplemental pay, if any) as Federal wages. To the extent that the service could also be the basis for entitlement to unemployment compensation under a State law, the employee may elect to claim unemployment compensation on the basis of the service under either the State law or subchapter I of chapter 85 of this title. However, an employee or his beneficiary may not receive benefits referred to in subparagraphs (A) and (B) of this paragraph (3), based on service during an assignment under this subchapter for which the employee or, if he dies without making such an election, his beneficiary elects to receive benefits, under any State or local government retirement or insurance law or program, which the Office of Personnel Management determines to be similar. The Federal agency shall deposit currently in the Employee’s Life Insurance Fund, the Employee’s Health Benefits Fund or other applicable health benefits system, respectively, the amount of the Government’s contributions on account of service with respect to which employee contributions are collected as provided in subparagraphs (A) and (B) of this paragraph (3).

(d) An employee so assigned and on leave without pay who dies or suffers disability as a result of personal injury sustained while in the performance of his duty during an assignment under this subchapter shall be treated, for the purpose of subchapter I of chapter 81 of this title, as though he were an employee as defined by section 8101 of this title who had sustained the injury in the performance of duty. When an employee (or his dependents in case of death) entitled by reason of injury or death to benefits under subchapter I of chapter 81 of this title is also entitled to benefits from a State or local government for the same injury or death, he (or his dependents in case of death) shall elect which benefits he will receive. The election shall be made within one year after the injury or death, or such further time as the Secretary of Labor may allow for reasonable cause shown. When made, the election is irrevocable unless otherwise provided by law. An employee who elects to receive benefits from a State or local government may not receive an annuity under subchapter III of chapter 83 of this title and benefits from the State or local government for injury or disability to himself covering the same period of time. This provision does not— bar the right of a claimant to the greater benefit conferred by either the State or local government or subchapter III of chapter 83 of this title for any part of the same period of time; deny to an employee an annuity accruing to him under subchapter III of chapter 83 of this title on account of service performed by him; or deny any concurrent benefit to him from the State or local government on account of the death of another individual.

§ 3374 Assignments of employees from State or local governments

(a) An employee of a State or local government who is assigned to a Federal agency under an arrangement under this subchapter may— be appointed in the Federal agency without regard to the provisions of this title governing appointment in the competitive service for the agreed period of the assignment; or be deemed on detail to the Federal agency.

(b) An employee given an appointment is entitled to pay in accordance with chapter 51 and subchapter III of chapter 53 of this title or other applicable law, and is deemed an employee of the Federal agency for all purposes except— subchapter III of chapter 83 of this title or other applicable retirement system; chapter 87 of this title; and chapter 89 of this title or other applicable health benefits system unless his appointment results in the loss of coverage in a group health benefits plan the premium of which has been paid in whole or in part by a State or local government contribution. The above exceptions shall not apply to non-Federal employees who are covered by chapters 83, 87, and 89 of this title by virtue of their non-Federal employment immediately before assignment and appointment under this section.

(c) During the period of assignment, a State or local government employee on detail to a Federal agency— is not entitled to pay from the agency, except to the extent that the pay received from the State or local government is less than the appropriate rate of pay which the duties would warrant under the applicable pay provisions of this title or other applicable authority; is deemed an employee of the agency for the purpose of chapter 73 of this title, chapter 131 of this title, chapter 21 of title 41, sections 203, 205, 207, 208, 209, 602, 603, 606, 607, 643, 654, 1905, and 1913 of title 18, sections 1343, 1344, and 1349(b) of title 31, and the Federal Tort Claims Act and any other Federal tort liability statute; and is subject to such regulations as the President may prescribe. The supervision of the duties of such an employee may be governed by agreement between the Federal agency and the State or local government concerned. A detail of a State or local government employee to a Federal agency may be made with or without reimbursement by the Federal agency for the pay, or a part thereof, of the employee during the period of assignment, or for the contribution of the State or local government, or a part thereof, to employee benefit systems.

(d) A State or local government employee who is given an appointment in a Federal agency for the period of the assignment or who is on detail to a Federal agency and who suffers disability or dies as a result of personal injury sustained while in the performance of his duty during the assignment shall be treated, for the purpose of subchapter I of chapter 81 of this title, as though he were an employee as defined by section 8101 of this title who had sustained the injury in the performance of duty. When an employee (or his dependents in case of death) entitled by reason of injury or death to benefits under subchapter I of chapter 81 of this title is also entitled to benefits from a State or local government for the same injury or death, he (or his dependents in case of death) shall elect which benefits he will receive. The election shall be made within 1 year after the injury or death, or such further time as the Secretary of Labor may allow for reasonable cause shown. When made, the election is irrevocable unless otherwise provided by law.

(e) If a State or local government fails to continue the employer’s contribution to State or local government retirement, life insurance, and health benefit plans for a State or local government employee who is given an appointment in a Federal agency, the employer’s contributions covering the State or local government employee’s period of assignment, or any part thereof, may be made from the appropriations of the Federal agency concerned.

§ 3375 Travel expenses

(a) Appropriations of a Federal agency are available to pay, or reimburse, a Federal or State or local government employee in accordance with— subchapter I of chapter 57 of this title, for the expenses of— travel, including a per diem allowance, to and from the assignment location; a per diem allowance at the assignment location during the period of the assignment; and travel, including a per diem allowance, while traveling on official business away from his designated post of duty during the assignment when the head of the Federal agency considers the travel in the interest of the United States; section 5724 of this title , for the expenses of transportation of his immediate family and of his household goods and personal effects to and from the assignment location; section 5724a(a) of this title , for the expenses of per diem allowances for the immediate family of the employee to and from the assignment location; section 5724a(c) of this title , for subsistence expenses of the employee and his immediate family while occupying temporary quarters at the assignment location and on return to his former post of duty; section 5724a(g) of this title , to be used by the employee for miscellaneous expenses related to change of station where movement or storage of household goods is involved; and section 5726(c) of this title , for the expenses of nontemporary storage of household goods and personal effects in connection with assignment at an isolated location.

(b) Expenses specified in subsection (a) of this section, other than those in paragraph (1)(C), may not be allowed in connection with the assignment of a Federal or State or local government employee under this subchapter, unless and until the employee agrees in writing to complete the entire period of his assignment or one year, whichever is shorter, unless separated or reassigned for reasons beyond his control that are acceptable to the Federal agency concerned. If the employee violates the agreement, the money spent by the United States for these expenses is recoverable from the employee as a debt due the United States. The head of the Federal agency concerned may waive in whole or in part a right of recovery under this subsection with respect to a State or local government employee on assignment with the agency.

(c) Appropriations of a Federal agency are available to pay expenses under section 5742 of this title with respect to a Federal or State or local government employee assigned under this subchapter.

§ 3376 Regulations

The President may prescribe regulations for the administration of this subchapter. (Added Pub. L. 91–648, title IV, § 402(a) , Jan. 5, 1971 , 84 Stat. 1925 .)

§ 3381 Training

(a) An air traffic controller with 5 years of service as a controller who is to be removed as a controller because the Secretary has determined— he is medically disqualified for duties as a controller; he is unable to maintain technical proficiency as a controller; or such removal is necessary for the preservation of the physical or mental health of the controller; is entitled to not more than the full-time equivalent of 2 years of training.

(b) During a period of training under this section, a controller shall be— retained at his last assigned grade and rate of basic pay as a controller; entitled to each increase in rate of basic pay provided under law; and excluded from staffing limitations otherwise applicable.

(c) Upon completion of training under this section, a controller may be— assigned to other duties in the Executive agency in which the controller is employed; released for transfer to another Executive agency; or involuntarily separated from the service. The involuntary separation of a controller under this subsection is not a removal for cause on charges of misconduct, delinquency, or inefficiency for purposes of section 5595 or section 8336 of this title .

(d) The Secretary, without regard to section 3324(a) and (b) of title 31, may pay, or reimburse a controller for, all or part of the necessary expenses of training provided under this section, including expenses authorized to be paid under chapter 41 and subchapter I of chapter 57 of this title, and the costs of other services or facilities directly related to the training of a controller.

(e) Except as provided by subsection (d) of this section, the provisions of chapter 41 of this title, other than sections 4105, 4107(a) and (b), 1 and 4111, shall not apply to training under this section.

(f) The provisions of this section shall not otherwise affect the authority of the Secretary to provide training under chapter 41 of this title or under any other provision of law.

§ 3382 Involuntary separation for retirement

An air traffic controller who is eligible for immediate retirement under section 8336 of this title may be separated involuntarily from the service if the Secretary determines that the separation of the controller is necessary in the interest of— aviation safety; the efficient control of air traffic; or the preservation of the physical or mental health of the controller. Chapter 75 of this title does not apply to a determination or action under this section. Separation under this section shall not become final, without the consent of the controller, until the last day of the second month following the day the controller receives a notification of the determination by the Secretary under this section, or, if a review is requested under section 3383 of this title , the last day of the month in which a final decision is issued by a board of review under section 3383(c) of this title , whichever is later. A controller who is to be separated under this section is entitled to training under section 3381 of this title . Separation of such a controller who elects to receive training under section 3381 shall not become final until the last day of the month following the completion of his training. (Added Pub. L. 92–297, § 3(a) , May 16, 1972 , 86 Stat. 142 ; amended Pub. L. 96–347, § 1(b) , Sept. 12, 1980 , 94 Stat. 1150 .)

§ 3383 Determinations; review procedures

(a) An air traffic controller subject to a determination by the Secretary under section 3381(a) or section 3382 of this title , shall be furnished a written notice of the determination and the reasons therefor, and a notification that the controller has 15 days after the receipt of the notification within which to file a written request for reconsideration of the determination. Unless the controller files such a request within the 15 days, or unless the determination is rescinded by the Secretary within the 15 days, the determination shall be final.

(b) If the Secretary does not rescind his determination within 15 days after his receipt of the written request filed by the controller under subsection (a) of this section, the Secretary shall immediately convene a board of review, consisting of— a person designated by the controller; a representative of the Executive agency in which the controller is employed designated by the Secretary; and a representative of the Merit Systems Protection Board, designated by the Chairman, who shall serve as chairman of the board of review.

(c) The board of review shall review evidence supporting and inconsistent with the determination of the Secretary and, within a period of 30 days after being convened, shall issue its findings and furnish copies thereof to the Secretary and the controller. The board may approve or rescind the determination of the Secretary. A decision by the board under this subsection is final. The Secretary shall take such action as may be necessary to carry out the decision of the board.

(d) Except as provided under section 3382 of this title , the review procedure of this section is in addition to any other review or appeal procedures provided under any other provision of law, but is the sole and exclusive administrative remedy available to a controller within the Executive agency in which such controller is employed.

§ 3384 Regulations

The Secretary is authorized to issue regulations to carry out the provisions of this subchapter. (Added Pub. L. 92–297, § 3(a) , May 16, 1972 , 86 Stat. 143 ; amended Pub. L. 96–347, § 1(b) , Sept. 12, 1980 , 94 Stat. 1150 .)

§ 3385 Effect on other authority

This subchapter shall not limit the authority of the Secretary to reassign temporarily an air traffic controller to other duties with or without notice, in the interest of the safe or efficient separation and control of air traffic or the physical or mental health of a controller; or to reassign permanently or separate a controller under any other provision of law. (Added Pub. L. 92–297, § 3(a) , May 16, 1972 , 86 Stat. 143 ; amended Pub. L. 96–347, § 1(b) , Sept. 12, 1980 , 94 Stat. 1150 .)

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

§ 3392 General appointment provisions

(a) Qualification standards shall be established by the head of each agency for each Senior Executive Service position in the agency— in accordance with requirements established by the Office of Personnel Management, with respect to standards for career reserved positions, and 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 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 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— to the extent provided under regulations prescribed by the Office, and so long as the appointee continues to serve under such Presidential appointment. An election under paragraph (1) may also be made by any career appointee who is appointed to a civilian position in the executive branch— which is not in the Senior Executive Service; and which is covered by the Executive Schedule, or the rate of basic pay for which is fixed by statute at a rate equal to 1 of the levels of the Executive Schedule. An election under this paragraph shall remain effective so long as the appointee continues to serve in the same position.

(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 with guidelines which shall be issued by the Office of Personnel Management, which provides for recruitment of career appointees from— all groups of qualified individuals within the civil service; or all groups of qualified individuals whether or not within the civil service.

(b) Each agency shall establish one or more executive resources boards, as appropriate, the members of which shall be appointed by the head of the agency from among employees of the agency or commissioned officers of the uniformed services serving on active duty in such agency. The boards shall, in accordance with merit staffing requirements established by the Office, conduct the merit staffing process for career appointees, including— reviewing the executive qualifications of each candidate for a position to be filled by a career appointee; and making written recommendations to the appropriate appointing authority concerning such candidates.

(c) The Office shall establish one or more qualifications review 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. The Office shall, in consultation with the various qualification review boards, prescribe criteria for establishing executive qualifications for appointment of career appointees. The criteria shall provide for— consideration of demonstrated executive experience; consideration of successful participation in a career executive development program which is approved by the Office; and 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 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 the Federal Register.

(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 1215,, 1 3592, 3595, 7532, or 7543 of this title.

[§ 3393a Repealed. Pub. L. 107–296, title XIII, § 1321(a)(1)(B), Nov. 25, 2002, 116 Stat. 2296]

§ 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) A career appointee in an agency— 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 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. Except as provided in subparagraph (B) of this paragraph, a career appointee may be reassigned to any Senior Executive Service position only if the career appointee receives written notice of the reassignment at least 15 days before the effective date of such reassignment. A career appointee may not be reassigned to a Senior Executive Service position outside the career appointee’s commuting area unless— before providing notice under subclause (II) of this clause (or seeking or obtaining the consent of the career appointee under clause (ii) of this subparagraph to waive such notice), the agency consults with the career appointee on the reasons for, and the appointee’s preferences with respect to, the proposed reassignment; and the career appointee receives written notice of the reassignment, including a statement of the reasons for the reassignment, at least 60 days before the effective date of the reassignment. Notice of reassignment under clause (i)(II) of this subparagraph may be waived with the written consent of the career appointee involved.

(b) 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. 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— may be reassigned to any general position in the agency for which the appointee is qualified; and may transfer to a general position in another agency with the approval of the agency to which the appointee transfers.

(e) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily reassigned— within 120 days after an appointment of the head of the agency; or within 120 days after the appointment in the agency of the career appointee’s most immediate supervisor who— is a noncareer appointee; and has the authority to make an initial appraisal of the career appointee’s performance under subchapter II of chapter 43. Paragraph (1) of this subsection does not apply with respect to— any reassignment under section 4314(b)(3) of this title ; or any disciplinary action initiated before an appointment referred to in paragraph (1) of this subsection. For the purpose of applying paragraph (1) to a career appointee, any days (not to exceed a total of 60) during which such career appointee is serving pursuant to a detail or other temporary assignment apart from such appointee’s regular position shall not be counted in determining the number of days that have elapsed since an appointment referred to in subparagraph (A) or (B) of such paragraph.

§ 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) The head of an agency may grant a sabbatical to any career 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 per diem allowances) as the head of the agency may determine to be essential for the study or experience. A sabbatical under this subsection may not be granted to any career appointee— more than once in any 10-year period; unless the appointee has completed 7 years of service— in one or more positions in the Senior Executive Service; 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 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 if the appointee is eligible for voluntary retirement with a right to an immediate annuity under section 8336 of this title . 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. Any career appointee in an agency may be granted a sabbatical 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. 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. In order to promote the professional development of career appointees and to assist them in achieving their maximum levels of proficiency, the Office shall, in a manner consistent with the needs of the Government provide appropriate informational services and otherwise encourage career appointees to take advantage of any opportunities relating to— sabbaticals; training; or details or other temporary assignments in other agencies, State or local governments, or the private sector.

§ 3397 Regulations

The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter. (Added Pub. L. 95–454, title IV, § 403(a) , Oct. 13, 1978 , 92 Stat. 1164 .)