39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–603 

SENIOR EXECUTIVE SERVICE ACCOUNTABILITY ACT 

SEPTEMBER 16, 2014.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. ISSA, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 5169] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (H.R. 5169) to amend title 5, United States 

Code, to enhance accountability within the Senior Executive Service, and for other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill 

do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 2 

Section-by-Section .................................................................................................... 3 

Explanation of Amendments ................................................................................... 4 

Committee Consideration ........................................................................................ 4 

Application of Law to the Legislative Branch ....................................................... 4 

Statement of Oversight Findings and Recommendations of the Committee ...... 4 

Statement of General Performance Goals and Objectives .................................... 4 

Duplication of Federal Programs ............................................................................ 4 

Disclosure of Directed Rule Makings ..................................................................... 5 

Federal Advisory Committee Act ............................................................................ 5 

Unfunded Mandate Statement ............................................................................... 5 

Earmark Identification ............................................................................................ 5 

Committee Estimate ................................................................................................ 5 

Budget Authority and Congressional Budget Office Cost Estimate .................... 5 

Changes in Existing Law Made by the Bill, as Reported ..................................... 6 

Minority Views ......................................................................................................... 12 


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1Treasury Inspector Gen. for Tax Admin., Inappropriate Criteria Were Used to Identify TaxExempt Applications for Review (May 24, 2013). 2Gregory Korte, IRS Approved Liberal Groups while Tea Party in Limbo, USA Today, May 

15, 2013. 3 H. Comm. on Oversight and Gov’t Reform, Staff Report, Lois Lerner’s Involvement in the 

IRS Targeting of Tax-Exempt Organizations, (March 11, 2014). 4General Services Admin. Inspector Gen., General Services Administration Public Buildings 

Service 2010 Western Regions Conference (Apr. 2, 2012). 5 Id. at 1–2. 6 Id. at 13. 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

The Senior Executive Service Accountability Act, H.R. 5169, 

brings needed accountability to the federal government’s executive 

leadership corps by providing employing agencies additional tools 

to address instances where senior government officials are engaging in behavior contrary to the principles of public service. 

BACKGROUND AND NEED FOR LEGISLATION

The Oversight and Government Reform Committee has discovered high-ranking government leaders engaged in gross mismanagement and misconduct. 

In February 2012, the Committee began investigating allegations 

that the Internal Revenue Service inappropriately scrutinized certain applicants seeking tax-exempt status. On May 12, 2013, the 

Treasury Inspector General for Tax Administration released a report that found that the Exempt Organizations (EO) division of the 

IRS inappropriately targeted ‘‘Tea Party’’ and other conservative 

applicants for tax-exempt status and subjected them to heightened 

scrutiny.1 This additional scrutiny resulted in extended delays 

that, in most cases, sidelined applicants during the 2012 election 

cycle, in spite of their Constitutional right to participate. Meanwhile, the majority of liberal and left-leaning applicants won approval.2 Documents and information obtained by the Committee 

show that Lois G. Lerner, the now-retired Director of IRS Exempt 

Organizations, was extensively involved in targeting conservativeoriented tax-exempt applicants for inappropriate scrutiny. The 

Committee’s investigation of Ms. Lerner found that she led efforts 

to scrutinize conservative groups while working to maintain a veneer of objective enforcement.3

In April 2012, the General Services Administration (GSA) Office 

of Inspector General (OIG) released a report on the GSA 2010 

Western Regions Conference held at a Las Vegas resort.4 The OIG 

found GSA spending on conference planning excessive, wasteful, 

and in some cases impermissible; GSA wasted taxpayer dollars and 

failed to follow contracting regulations in many of the procurements associated with the Western Regional Conference (WRC), 

GSA incurred impermissible and questionable miscellaneous expenses; and GSA’s approached to the conference indicates that 

minimizing expenses was not a goal.5 A Senior Executive Service 

employee, Jeff Neely, directed those planning the conference to 

make it ‘‘over the top.’’ 6 Mr. Neely engaged in an indefensible pattern of misconduct, including repeatedly violating federal travel 

and procurement rules, held lavish parties in luxury hotel suites, 

and allowed his wife and other nongovernment officials to particiVerDate Sep 11 2014 03:14 Sep 19, 2014 Jkt 039006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR603.XXX HR603

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7 H. Comm. on Oversight & Gov’t Reform, Addressing GSA’s Culture of Wasteful Spending 

(April 16, 2012). 

pate in some of these events at taxpayers’ expense. Mr. Neely was 

aware that his actions were inappropriate.7

In response, H.R. 5169 helps ensure Senior Executive Service 

employees are held accountable for their work on behalf of the 

American people. The bill eliminates the provision under current 

law that allows Senior Executive Service employees demoted for 

underperformance to retain their executive salary. As a result, executives downgraded based upon performance will be paid the salary of the position to which they are assigned. H.R. 5169 extends 

the probationary period of executive leaders by an additional year, 

providing agencies additional time to ensure newly appointed officials are qualified for their assigned role. The type of work expected of Senior Executive Service employees is arguably more 

complex and warrants a longer probationary period. H.R. 5169 

makes executive leaders subject to suspensions of two weeks or 

less, under the same conditions as front line workers, and also 

makes clear executives are held accountable for conduct contrary to 

the efficiency of federal service. Both changes provide additional 

tools for agencies to use when addressing issues of executive misconduct and bring needed equity to the disciplinary system for the 

federal workforce. 

SECTION-BY-SECTION

Section 1. Short title 

The short title of the bill is the ‘‘Senior Executive Service Accountability Act.’’ 

Section 2. Biennial justification of positions 

Requires agencies to provide written justification to the Office of 

Personnel Management (OPM) for each requested SES position, including existing positions. 

Section 3. Extension of probationary period 

Extends the probationary period for individuals appointed to the 

Senior Executive Service from one year to two years. 

Section 4. Modification of pay retention for senior executive service 

members removed for underperformance 

Eliminates the provision in current law which allows an individual removed from the Senior Executive Service for performance 

to retain his or her SES pay if appointed to a civil service position. 

Section 5. Requirement that performance requirements be established in advance 

Senior Executive Service employees must receive performance requirements in writing no less than 30 days before the start of an 

appraisal period. 

Section 6. Amendments to adverse action provisions with respect to 

career appointees in the senior executive service 

Makes Senior Executive Service employees subject to suspensions 

(without pay) of less than two weeks, in the same manner as other 


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civil service workers. Gives agencies authority to remove Senior 

Executive Service employees for ‘‘such cause as would promote the 

efficiency of the service’’—the standard that currently applies to 

other civil service workers. Reduces the requirement for agencies to 

give senior executives advance notice of termination from a minimum of 30 days to not less than 15 days. 

Section 7. Mandatory leave for career appointees in the senior executive service 

Gives agency heads authority to place on mandatory annual 

leave Senior Executive Service employees facing removal for misconduct, and prohibits the accumulation of additional annual leave 

during this period. Annual leave would be restored to the Senior 

Executive Service employee if the agency, Merit Systems Protection 

Board, or court found in the employee’s favor during the appeals 

process. 

EXPLANATION OF AMENDMENTS

No amendments were adopted to H.R. 5169. 

COMMITTEE CONSIDERATION

On July 24, 2014, the Committee met in open session and ordered reported favorably the bill, H.R. 5169, by voice vote, a 

quorum being present. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill eliminates the provision 

under current law that allows Senior Executive Service employees 

demoted for underperformance to retain their executive salary. 

Legislative branch employees and their families, to the extent that 

they are otherwise eligible for the benefits provided by this legislation, have equal access to its benefits. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goals and 

objectives are reflected in the descriptive portions of this report. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 5169 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 


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21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

H.R. 5169 requires the Office of Personnel Management to promulgate regulations for agencies to use when exercising the discretionary authority in section 7 to place a Senior Executive Service 

employee on mandatory leave for misconduct, neglect of duty, malfeasance, or such cause as would promote the efficiency of the service. The bill requires the regulations to be issued not later than 6 

months after the date of enactment of H.R. 5169. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement as to whether the 

provisions of the reported include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

H.R. 5169 does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out H.R. 

5169. However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its 

report a timely submitted cost estimate of the bill prepared by the 

Director of the Congressional Budget Office under section 402 of 

the Congressional Budget Act. 

BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 

1974, the Committee has received the following cost estimate for 

H.R. 5169 from the Director of Congressional Budget Office: 


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SEPTEMBER 8, 2014. 

Hon. DARRELL ISSA, 

Chairman, Committee on Oversight and Government Reform, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 5169, the Senior Executive Service Accountability Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Dan Ready. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 5169—Senior Executive Service Accountability Act 

CBO estimates that implementing H.R. 5169 would not have a 

significant impact on federal spending. Enacting the bill could affect revenues; therefore, pay-as-you-go procedures apply. However, 

CBO estimates that any such effects would be insignificant over 

the next ten years. 

H.R. 5169 would make several changes to the conditions of employment for members of the Senior Executive Service (SES). In 

particular, the bill would change the procedures for removing SES 

employees for misconduct or underperformance, and modify the 

rules for providing salary and paid time off for those removed. For 

example, H.R. 5169 would eliminate the ability of former SES 

members removed for underperformance to keep their SES pay if 

demoted to a civil service position (under current law, they are allowed to continue being paid at the SES level). 

Implementing this bill would lead to lower discretionary spending for salaries and expenses for those removed from the SES for 

misconduct or underperformance. CBO estimates that the spending 

decrease would be small because so few employees would likely be 

affected. According to the Office of Personnel Management, only 5 

SES employees over the past five years would have met the criteria 

for salary adjustments set forth in this bill. Because some affected 

employees would receive a reduced salary, their retirement contributions would also be slightly reduced, resulting in a reduction 

in revenues. CBO estimates that those reductions also would not 

be significant. 

H.R. 5169 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

The CBO staff contact for this estimate is Dan Ready. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 


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TITLE 5, UNITED STATES CODE 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

SUBPART B—EMPLOYMENT AND RETENTION 

* * * * * * * 

CHAPTER 31—AUTHORITY FOR EMPLOYMENT 

* * * * * * * 

SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE 

* * * * * * * 

§ 3133. Authorization of positions; authority for appointment 

(a) During each even-numbered calendar year, each agency 

shall— 

(1) * * * 

(2) submit to the Office of Personnel Management a written 

request for a specific number of Senior Executive Service positions, with a justification for each position (by title and organizational location) and the specific result expected from each position, including the impact of such result on the agency mission, for each of such fiscal years. 

* * * * * * * 

CHAPTER 33—EXAMINATION, SELECTION, AND 

PLACEMENT 

* * * * * * * 

SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, 

TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE 

* * * * * * * 

§ 3393. Career appointments 

(a) * * * 

* * * * * * * 

(d) An individual’s initial appointment as a career appointee 

shall become final only after the individual has served a ø1-year¿ 

2-year probationary period as a career appointee. 

* * * * * * * 

CHAPTER 35—RETENTION PREFERENCE, VOLUNTARY 

SEPARATION INCENTIVE PAYMENTS, RESTORATION, 

AND REEMPLOYMENT 

* * * * * * * 


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SUBCHAPTER V—REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR EXECUTIVE SERVICE 

* * * * * * * 

§ 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 ø1-year¿ 2-year period of probation under section 3393(d) of this title, or 

* * * * * * * 

§ 3593. Reinstatement in the Senior Executive Service 

(a) A former career appointee may be reinstated, without regard 

to section 3393(b) and (c) of this title, to any Senior Executive Service position for which the appointee is qualified if— 

(1) * * * 

(2) the appointee left the Senior Executive Service for reasons other than ømisconduct,¿ such cause as would promote 

the efficiency of the service, misconduct, neglect of duty, malfeasance, or less than fully successful executive performance as 

determined under subchapter II of chapter 43. 

(b) A career appointee who is appointed by the President to any 

civil service position outside the Senior Executive Service and who 

leaves the position for reasons other than ømisconduct,¿ such cause 

as would promote the efficiency of the service, misconduct, neglect 

of duty, or malfeasance shall be entitled to be placed in the Senior 

Executive Service if the appointee applies to the Office of Personnel 

Management within 90 days after separation from the Presidential 

appointment. 

* * * * * * * 

§ 3594. Guaranteed placement in other personnel systems 

(a) A career appointee who was appointed from a civil service position held under a career or career-conditional appointment (or an 

appointment of equivalent tenure, as determined by the Office of 

Personnel Management) and who, for reasons other than ømisconduct,¿ such cause as would promote the efficiency of the service, 

misconduct, neglect of duty, or malfeasance, is removed from the 

Senior Executive Service during the probationary period under section 3393(d) of this title, shall be entitled to be placed in a civil 

service position (other than a Senior Executive Service position) in 

any agency. 

* * * * * * * 

(c)(1) For purposes of subsections (a) and (b) of this section— 

(A) * * * 

ø(B) any career appointee placed under subsection (a) or (b) 

of this section shall be entitled to receive basic pay at the highest of— 

ø(i) the rate of basic pay in effect for the position in 

which placed; 


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ø(ii) the rate of basic pay in effect at the time of the 

placement for the position the career appointee held in the 

civil service immediately before being appointed to the 

Senior Executive Service; or 

ø(iii) the rate of basic pay in effect for the career appointee immediately before being placed under subsection 

(a) or (b) of this section; and¿ 

(B)(i) any career appointee placed under subsection (a) or 

(b)(2) of this section shall be entitled to receive basic pay at 

the highest of— 

(I) the rate of basic pay in effect for the position in 

which placed; 

(II) the rate of basic pay in effect at the time of the 

placement for the position the career appointee held in 

the civil service immediately before being appointed to 

the Senior Executive Service; or 

(III) the rate of basic pay in effect for the career appointee immediately before being placed under subsection (a) or (b) of this section; and 

(ii) any career appointee placed under subsection (b)(1) of 

this section shall be entitled to receive basic pay at the rate 

of basic pay in effect for the position in which placed; and 

* * * * * * * 

SUBPART C—EMPLOYEE PERFORMANCE 

* * * * * * * 

CHAPTER 43—PERFORMANCE APPRAISAL 

* * * * * * * 

SUBCHAPTER II—PERFORMANCE APPRAISAL IN THE 

SENIOR EXECUTIVE SERVICE 

* * * * * * * 

§ 4312. Senior Executive Service performance appraisal systems 

(a) * * * 

(b) Each performance appraisal system established by an agency 

under subsection (a) of this section shall provide— 

(1) that, øon or¿ not later than 30 calendar days before the 

beginning of each rating period, performance requirements for 

each senior executive in the agency are established in consultation with the senior executive and communicated in writing to 

the senior executive; 

* * * * * * * 

SUBPART E—ATTENDANCE AND LEAVE 

* * * * * * * 


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CHAPTER 63—LEAVE 

SUBCHAPTER I—ANNUAL AND SICK LEAVE 

Sec. 

6301. Definitions. 

* * * * * * * 

SUBCHAPTER II—OTHER PAID LEAVE 

* * * * * * * 

6329. Mandatory leave for Senior Executive Service career appointees. 

* * * * * * * 

SUBCHAPTER II—OTHER PAID LEAVE 

* * * * * * * 

§ 6329. Mandatory leave for Senior Executive Service career 

appointees 

(a) In this section— 

(1) the term ‘‘employee’’ means— 

(A) a career appointee in the Senior Executive Service 

who— 

(i) has completed the probationary period prescribed 

under section 3393(d) of this title; or 

(ii) was covered by the provisions of subchapter II of 

chapter 75 of this title immediately before appointment 

to the Senior Executive Service; and 

(B) who has received written notice of removal from the 

civil service under subchapter V of chapter 75 of this title; 

and 

(2) the term ‘‘mandatory leave’’ means, with respect to an employee, an absence with pay but without duty during which 

such employee— 

(A) shall be charged accrued annual leave for the period 

of such absence; and 

(B) may not accrue any annual leave under section 6303 

for the period of such absence. 

(b) Under regulations prescribed by the Office of Personnel Management, an agency may place an employee on mandatory leave for 

misconduct, neglect of duty, malfeasance, or such cause as would 

promote the efficiency of the service. 

(c) If an agency determines that an employee should be placed on 

mandatory leave under subsection (b), such leave shall begin no earlier than the date on which the employee received written notice of 

a removal under subchapter V of chapter 75. 

(d) If a final order or decision is issued in favor of such employee 

with respect to removal under subchapter V of chapter 75 by the 

agency, the Merit Systems Protection Board, or the United States 

Court of Appeals for the Federal Circuit, any annual leave that is 

charged to an employee by operation of this section shall be restored 

to the applicable leave account of such employee. 

* * * * * * * 


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SUBPART F—LABOR-MANAGEMENT AND 

EMPLOYEE RELATIONS 

* * * * * * * 

CHAPTER 75—ADVERSE ACTIONS 

* * * * * * * 

SUBCHAPTER I—SUSPENSION FOR 14 DAYS OR LESS 

§ 7501. Definitions 

For the purpose of this subchapter— 

ø(1) ‘‘employee’’ means an individual in the competitive service who is not serving a probationary or trial period under an 

initial appointment or who has completed 1 year of current 

continuous employment in the same or similar positions under 

other than a temporary appointment limited to 1 year or less; 

and¿ 

(1) ‘‘employee’’ means— 

(A) an individual in the competitive service who is not 

serving a probationary period or trial period under an initial appointment or who has completed 1 year of current 

continuous employment in the same or similar positions 

under other than a temporary appointment limited to 1 

year or less; or 

(B) a career appointee in the Senior Executive Service 

who— 

(i) has completed the probationary period prescribed 

under section 3393(d); or 

(ii) was covered by the provisions of subchapter II of 

this chapter immediately before appointment to the 

Senior Executive Service; and 

* * * * * * * 

SUBCHAPTER V—SENIOR EXECUTIVE SERVICE 

* * * * * * * 

§ 7543. Cause and procedure 

(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter 

against an employee only for ømisconduct,¿ such cause as would 

promote the efficiency of the service, misconduct, neglect of duty, 

malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. 

(b) An employee against whom an action covered by this subchapter is proposed is entitled to— 

(1) at least ø30¿ 15 days’ advance written notice, unless 

there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be 

imposed, stating specific reasons for the proposed action; 

* * * * * * * 


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1 Ch. 27, 22 Stat. 403 (1883). 

2Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987); Abbott v. United 

States Postal Service, 2014 MSPB 47(2014); Zygas v. United States Postal Service, 2011 MSPB 

55 (2011). 

MINORITY VIEWS 

Committee Democrats oppose H.R. 5169, the Senior Executive 

Service Accountability Act, which would make it easier for agencies 

to suspend or remove members of the Senior Executive Service 

(SES) at the expense of due process and at the risk of politicizing 

the federal government’s senior executive corps. 

This legislation was intended to address recent allegations of 

misconduct and management failures by senior executives at various agencies by bringing the federal government’s career senior executives closer to becoming ‘‘at will’’ employees. H.R. 5169 would: 

extend the current probationary period from one year to two years; 

authorize agencies to suspend senior executives for less than 14 

days without third-party review; shorten the timeframe for agencies to give advanced written notice to SES employees of adverse 

actions from 30 days to 15 days; and allow agencies to place SES 

employees on mandatory leave for misconduct, neglect of duty, malfeasance, or such cause as would promote the efficiency of the service. 

The bill’s provisions regarding the extension of the probationary 

period and the authorization of suspensions for less than 14 days 

would allow agency heads and political appointees to terminate or 

suspend SES members for politically-motivated reasons and without third-party review. This could result in the politicization of career senior executives, which would undermine the protections 

against political patronage and corruption provided under the Pendleton Civil Service Reform Act of 1883.1

The legislation also raises due process concerns. The provision 

that would shorten the advance notice period given to SES employees of adverse actions may negatively impact the ability of employees to respond to agency charges and proposed actions. 

In addition, ‘‘mandatory leave’’ as defined in the legislation may 

be interpreted by the courts and the Merit Systems Protections 

Board (MSPB) as involuntary or enforced leave requiring procedural due process. The Federal Circuit Court of Appeals and MSPB 

have held that the imposition of involuntary or enforced sick or annual leave constitutes a constructive suspension requiring agencies 

to provide employees with procedural rights such as notice, an opportunity to respond to agency decisions, and appeal rights prior to 

placement on leave status.2

During the Committee’s consideration of H.R. 5169, Representative Norton offered an amendment that would have struck the provision shortening the notice period for adverse actions from 30 days 

to 15 days. Representative Lynch offered an amendment that 


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would have struck the provision giving agencies authority to place 

senior executives on mandatory leave. 

Representatives Norton and Lynch withdrew their amendments 

based on assurances from the Chairman that he would work to address their concerns prior to House consideration of the bill. 

ELIJAH E. CUMMINGS. 

Æ 


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