### §9903. Attracting highly qualified experts

(a) In General.—The Secretary may carry out a program using the authority provided in subsection (b) in order to attract highly qualified experts in needed occupations, as determined by the Secretary.

(b) Authority.—Under the program, the Secretary may—

(1) appoint personnel from outside the civil service and uniformed services (as such terms are defined in section 2101) to positions in the Department of Defense without regard to any provision of this title governing the appointment of employees to positions in the Department of Defense;

(2) prescribe the rates of basic pay for positions to which employees are appointed under paragraph (1) at rates not in excess of the maximum rate of basic pay authorized for senior-level positions under section 5376, as increased by locality-based comparability payments under section 5304, notwithstanding any provision of this title governing the rates of pay or classification of employees in the executive branch; and

(3) pay any employee appointed under paragraph (1) payments in addition to basic pay within the limits applicable to the employee under subsection (d).

(c) Limitation on Term of Appointment.—(1) Except as provided in paragraph (2), the service of an employee under an appointment made pursuant to this section may not exceed 5 years.

(2) The Secretary may, in the case of a particular employee, extend the period to which service is limited under paragraph (1) by up to 1 additional year if the Secretary determines that such action is necessary to promote the Department of Defense's national security missions.

(d) Limitations on Additional Payments.—(1) The total amount of the additional payments paid to an employee under this section for any 12-month period may not exceed the lesser of the following amounts:

(A) $50,000 in fiscal year 2004, which may be adjusted annually thereafter by the Secretary, with a percentage increase equal to one-half of 1 percentage point less than the percentage by which the Employment Cost Index, published quarterly by the Bureau of Labor Statistics, for the base quarter of the year before the preceding calendar year exceeds the Employment Cost Index for the base quarter of the second year before the preceding calendar year.

(B) The amount equal to 50 percent of the employee's annual rate of basic pay.

For purposes of this paragraph, the term "base quarter" has the meaning given such term by section 5302(3).

(2) An employee appointed under this section is not eligible for any bonus, monetary award, or other monetary incentive for service, except for—

(A) payments authorized under this section; and

(B) in the case of an employee who is assigned in support of a contingency operation (as defined in section 101(a)(13) of title 10), allowances and any other payments authorized under chapter 59.

(3) Notwithstanding any other provision of this subsection or of section 5307, no additional payments may be paid to an employee under this section in any calendar year if, or to the extent that, the employee's total annual compensation will exceed the maximum amount of total annual compensation payable at the salary set in accordance with section 104 of title 3. In computing an employee's total annual compensation for purposes of the preceding sentence, any payment referred to in paragraph (2)(B) shall be excluded.

(e) Limitation on Number of Highly Qualified Experts.—The number of highly qualified experts appointed and retained by the Secretary under subsection (b)(1) shall not exceed 2,500 at any time.

(f) Savings Provisions.—In the event that the Secretary terminates this program, in the case of an employee who, on the day before the termination of the program, is serving in a position pursuant to an appointment under this section—

(1) the termination of the program does not terminate the employee's employment in that position before the expiration of the lesser of—

(A) the period for which the employee was appointed; or

(B) the period to which the employee's service is limited under subsection (c), including any extension made under this section before the termination of the program; and

(2) the rate of basic pay prescribed for the position under this section may not be reduced as long as the employee continues to serve in the position without a break in service.

(Added Pub. L. 108–136, div. A, title XI, §1101(a)(1), Nov. 24, 2003, 117 Stat. 1632; amended Pub. L. 112–81, div. A, title XI, §1105, Dec. 31, 2011, 125 Stat. 1612.)

#### **Editorial Notes**

#### Amendments

2011—Subsec. (d)(2). Pub. L. 112–81, §1105(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "An employee appointed under this section is not eligible for any bonus, monetary award, or other monetary incentive for service except for payments authorized under this section."

Subsec. (d)(3). Pub. L. 112–81, §1105(2), inserted at end "In computing an employee's total annual compensation for purposes of the preceding sentence, any payment referred to in paragraph (2)(B) shall be excluded."

#### **Statutory Notes and Related Subsidiaries**

#### References to Maximum Rate Under 5 U.S.C. 5376

For reference to maximum rate under section 5376 of this title, see section 2(d)(3) of Pub. L. 110–372, set out as an Effective Date of 2008 Amendment note under section 5376 of this title.

#### Policy on Senior Mentors

Pub. L. 112–239, div. A, title XI, §1105, Jan. 2, 2013, 126 Stat. 1973, provided that:

"(a) In General.—The Secretary of Defense shall provide written notice to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] at least 60 days before implementing any change in the policy regarding senior mentors issued on or about April 1, 2010.

"(b) Applicability.—Changes implemented before the date of the enactment of this Act [Jan. 2, 2013] shall not be affected by this section."

#### Disclosure of Senior Mentors

Pub. L. 112–81, div. A, title XI, §1124, Dec. 31, 2011, 125 Stat. 1618, provided that:

"(a) Requirement to Disclose Names of Senior Mentors.—The Secretary of Defense shall disclose the names of senior mentors serving in the Department of Defense by publishing a list of the names on the publicly available website of the Department of Defense. The list shall be updated at least quarterly.

"(b) Senior Mentor Defined.—In this section, the term 'senior mentor' has the meaning provided in the memorandum from the Secretary of Defense relating to policy on senior mentors, dated April 1, 2010."

#### Requirements for Department of Defense Senior Mentors

Pub. L. 111–383, div. A, title XI, §1102, Jan. 7, 2011, 124 Stat. 4382, provided that:

"(a) In General.—The Secretary of Defense shall issue appropriate policies and procedures to ensure that all senior mentors employed by the Department of Defense are—

"(1) hired as highly qualified experts under section 9903 of title 5, United States Code; and

"(2) required to comply with all applicable Federal laws and regulations on personnel and ethics matters.

"(b) Senior Mentor Defined.—In this section, the term 'senior mentor' means a retired flag, general, or other military officer or retired senior civilian official who provides expert experience-based mentoring, teaching, training, advice, and recommendations to senior military officers, staffs, and students as they participate in war games, warfighting courses, operational planning, operational exercises, and decision-making exercises."