§ 359.406 Restrictions

5 CFR 359.406(a)(a) Removal from the SES under §§ 359.402 through 359.404 may not be made effective within 120 days after—

5 CFR 359.406(a)(1)(1) The appointment of a new agency head; or

5 CFR 359.406(a)(2)(2) The appointment in the agency of the career appointee's most immediate supervisor who—

5 CFR 359.406(a)(2)(i)(i) Is a noncareer appointee; and

5 CFR 359.406(a)(2)(ii)(ii) Has the authority to remove the career appointee.

5 CFR 359.406(b)(b) For purposes of this section, a noncareer appointee includes an SES noncareer or limited appointee, an appointee in a position filled by Schedule C, or an appointee in an Executive Schedule or equivalent position other than a career Executive Schedule or equivalent position.

5 CFR 359.406(c)(c) The restrictions in paragraph (a) of this section do not apply—

5 CFR 359.406(c)(1)(1) When the career appointee has received a final rating of unsatisfactory under the performance appraisal system established by the agency under subchapter II of chapter 43 of title 5, United States Code, before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor who has the authority to remove the career appointee;

5 CFR 359.406(c)(2)(2) To a disciplinary action initiated before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor who has the authority to remove the career appointee;

5 CFR 359.406(c)(3)(3) To a disciplinary action when there is a reasonable cause to believe that the career appointee has committed a crime for which a sentence of imprisonment can be imposed; or

5 CFR 359.406(c)(4)(4) To a disciplinary action when the circumstances are such that retention of the career appointee—

5 CFR 359.406(c)(4)(i)(i) May pose a threat to the appointee or others;

5 CFR 359.406(c)(4)(ii)(ii) May result in loss of or damage to Government property; or

5 CFR 359.406(c)(4)(iii)(iii) May otherwise jeopardize legitimate Government interests.

5 CFR 359.406(d)(d) The following procedures must be observed when an agency invokes an exception to the 120-day restriction under paragraphs (c)(3) or (c)(4) of this section:

5 CFR 359.406(d)(1)(1) The agency shall include in the notice the reasons for invoking the exception.

5 CFR 359.406(d)(2)(2) The appointee shall be given a reasonable time, but no less than 7 days, to respond regarding the propriety of the use of the exception.

5 CFR 359.406(d)(3)(3) The agency shall give the appointee a notice of decision on the propriety of the use of the exception at or before the time the action will be effective.

5 CFR 359.406(d)(4)(4) When circumstances require immediate action, the agency may place the appointee in a nonduty status with pay for such time as necessary to effect the action.

5 CFR 359.406(e)(e) The imposition of the 120-day moratorium does not extend the probationary period.