### §3592. Removal from the Senior Executive Service

(a) Except as provided in subsection (b) of this section, a career appointee may be removed from the Senior Executive Service to a civil service position outside of the Senior Executive Service—

(1) during the 1-year period of probation under section 3393(d) of this title, or

(2) at any time for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title,

except that in the case of a removal under paragraph (2) of this subsection the career appointee shall, at least 15 days before the removal, be entitled, upon request, to an informal hearing before an official designated by the Merit Systems Protection Board at which the career appointee may appear and present arguments, but such hearing shall not give the career appointee the right to initiate an action with the Board under section 7701 of this title, nor need the removal action be delayed as a result of the granting of such hearing.

(b)(1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily removed—

(A) within 120 days after an appointment of the head of the agency; or

(B) within 120 days after the appointment in the agency of the career appointee's most immediate supervisor who—

(i) is a noncareer appointee; and

(ii) has the authority to remove the career appointee.

(2) Paragraph (1) of this subsection does not apply with respect to—

(A) any removal under section 4314(b)(3) of this title; or

(B) any disciplinary action initiated before an appointment referred to in paragraph (1) of this subsection.

(c) A limited emergency appointee, limited term appointee, or noncareer appointee may be removed from the service at any time.

(Added Pub. L. 95–454, title IV, §404(b), Oct. 13, 1978, 92 Stat. 1165; amended Pub. L. 101–194, title V, §506(b)(3), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 107–296, title XIII, §1321(a)(2)(A), Nov. 25, 2002, 116 Stat. 2297.)

#### **Editorial Notes**

#### Amendments

2002—Subsec. (a). Pub. L. 107–296, §1321(a)(2)(A)(iv), struck out last sentence which read as follows: "In the case of a removal under paragraph (3) of this subsection, the career appointee shall have the right to appeal the removal from the Senior Executive Service to the Merit Systems Protection Board under section 7701."

Subsec. (a)(1). Pub. L. 107–296, §1321(a)(2)(A)(i), inserted "or" at end.

Subsec. (a)(2). Pub. L. 107–296, §1321(a)(2)(A)(ii), struck out "or" at end.

Subsec. (a)(3). Pub. L. 107–296, §1321(a)(2)(A)(iii), struck out par. (3) which read as follows: "if the career appointee is not recertified as a senior executive under section 3393a,".

1989—Subsec. (a). Pub. L. 101–194, §506(b)(3)(D), inserted at end "In the case of a removal under paragraph (3) of this subsection, the career appointee shall have the right to appeal the removal from the Senior Executive Service to the Merit Systems Protection Board under section 7701."

Subsec. (a)(3). Pub. L. 101–194, §506(b)(3)(A)–(C), added par. (3).

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

#### Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of Title 6, Domestic Security.

#### Effective Date of 1989 Amendment

Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of this title.

#### Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b), of Pub. L. 95–454, set out as a note under section 3131 of this title.

#### Savings Provision

Pub. L. 107–296, title XIII, §1321(b), Nov. 25, 2002, 116 Stat. 2297, provided that: "Notwithstanding the amendments made by subsection (a)(2)(A) [amending this section], an appeal under the final sentence of section 3592(a) of title 5, United States Code, that is pending on the day before the effective date of this section [see Effective Date of 2002 Amendment note above]—

"(1) shall not abate by reason of the enactment of the amendments made by subsection (a)(2)(A); and

"(2) shall continue as if such amendments had not been enacted."