5 C.F.R. Subpart G—Adverse Actions
Title 5 - Administrative Personnel
This subpart contains regulations prescribing the requirements for employees who are removed, suspended, furloughed for 30 days or less, reduced in pay, or reduced in pay band (or comparable reduction). The Secretary may prescribe implementing issuances to carry out the provisions of this subpart. With respect to any category of employees covered by this subpart, subchapters I and II of 5 U.S.C. chapter 75, in addition to those provisions of 5 U.S.C. chapter 43 specified in subpart D of this part, are waived and replaced by this subpart. In this subpart: Adverse action means a removal, suspension, furlough for 30 days or less, reduction in pay, or reduction in pay band (or comparable reduction). Band has the meaning given that term in §9901.103. Day has the meaning given that term in §9901.103. Furlough has the meaning given that term in §9901.103. Indefinite suspension means the placement of an employee in a temporary status without duties and pay pending investigation, inquiry, or other administrative action. An indefinite suspension continues for an indeterminate period of time and ends with the occurrence of pending conditions set forth in the notice of actions which may include the completion of any subsequent administrative action. Initial probationary period has the meaning given that term in §9901.103. In-service probationary period has the meaning given that term in §9901.103. Mandatory removal offense (MRO) has the meaning given that term in §9901.103. Reduction in pay means a decrease in an employee's rate of basic pay fixed by law or administrative action for the position held by the employee before any deductions and exclusive of additional pay of any kind. Basic pay does not include local market supplements under subpart C of this part or similar payments. Nonreceipt of a pay increase is not a reduction in pay. Removal means the involuntary separation of an employee from the Federal service. Suspension means the temporary placement of an employee, for disciplinary reasons, in a nonduty/ nonpay status. (a) Actions covered. This subpart covers removals, suspensions, furloughs of 30 days or less, reductions in pay, or reductions in band (or comparable reductions). (b) Actions excluded. This subpart does not cover— (1) An action taken against an employee during an initial probationary period established under §9901.512(a), except when the employee is a preference eligible who has completed 1 year of that probationary period; (2) A reduction in pay or pay band of an employee who does not satisfactorily complete an in-service probationary period under §9901.512(b) if the employee is returned to a grade or band and rate of basic pay no lower than that held before the in-service probationary period. (3) An action that terminates a temporary or term promotion and returns the employee to the position from which temporarily promoted, or to a different position in a comparable pay band, if the employee was informed that the promotion was to be of limited duration; (4) A reduction in force action under subpart F of this part; (5) An action imposed by the Merit Systems Protection Board under 5 U.S.C. 1215; (6) A voluntary action by an employee; (7) An action taken or directed by OPM based on suitability under 5 CFR part 731; (8)(i) Termination of appointment on the expiration date specified as a basic condition of employment at the time the appointment was made; (ii) Termination of appointment before the expiration date specified as a basic condition of employment at the time the appointment was made, except when the termination is taken against— (A) A preference eligible employee who has completed 1 year under a time-limited appointment; or (B) An employee who has completed a probationary period under a term appointment; (9) Cancellation of a promotion to a position not classified prior to the promotion; (10) Placement of an employee serving on an intermittent or seasonal basis in a temporary non-duty, non-pay status in accordance with conditions established at the time of appointment; (11) Reduction of an employee's rate of basic pay from a rate that is contrary to law or regulation; (12) An action taken under a provision of statute, other than one codified in title 5, U.S. Code, which excludes the action from 5 U.S.C. chapter 75 or this subpart; (13) A classification determination, including a classification determination under subpart B of this part; (14) Suspension or removal under 5 U.S.C. 7532; and (15) An action to terminate grade retention upon conversion to the NSPS pay system established under subpart C of this part. (c) Employees covered. Subject to a determination by the Secretary under §9901.102(b)(2), this subpart applies to DoD employees, except as excluded by paragraph (d) of this section. (d) Employees excluded. This subpart does not apply to— (1) An employee who is serving a probationary period, except when the employee is a preference eligible who has completed 1 year of that probationary period; (2) A member of the Senior Executive Service; (3) An employee who is terminated in accordance with terms specified as conditions of employment at the time the appointment was made; (4) An employee whose appointment is made by and with the advice and consent of the Senate; (5) An employee whose position has been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character by— (i) The President, for a position that the President has excepted from the competitive service; (ii) OPM, for a position that OPM has excepted from the competitive service; or (iii) The President or the Secretary for a position excepted from the competitive service by statute; (6) An employee whose appointment is made by the President; (7) A reemployed annuitant who is receiving an annuity from the Civil Service Retirement and Disability Fund or the Foreign Service Retirement and Disability Fund; (8) An employee who is an alien or non-citizen occupying a position outside the United States, as described in 5 U.S.C. 5102(c)(11); (9) A member of the National Security Labor Relations Board; (10) A non-appropriated fund employee; (11) A National Guard technician who is employed under 32 U.S.C. 709; and (12) An employee against whom an adverse personnel action is taken or imposed under any statute or regulation other than this subpart.
Title 5: Administrative Personnel
PART 9901—DEPARTMENT OF DEFENSE HUMAN RESOURCES MANAGEMENT AND LABOR RELATIONS SYSTEMS
Subpart G—Adverse Actions
General
§ 9901.701 Purpose.
§ 9901.702 Waivers.
§ 9901.703 Definitions.
§ 9901.704 Coverage.
Requirements for Removal, Suspension, Furlough of 30 Days or Less, Reduction in Pay, or Reduction in Band (or Comparable Reduction)
§ 9901.711 Standard for action.
The Secretary may take an adverse action under this subpart only for such cause as will promote the efficiency of the service.
§ 9901.712 Mandatory removal offenses.
(a) The Secretary has the sole, exclusive, and unreviewable discretion to identify offenses that have a direct and substantial adverse impact on the Department's national security mission. Such offenses will be identified in advance in implementing issuances, publicized upon establishment via notice in the
(b) The procedures in §§9901.713 through 9901.716 apply to actions taken under this section. However, a proposed notice required by §9901.714 may be issued to the employee in question only after the Secretary's review and approval.
(c) The Secretary has the sole, exclusive, and unreviewable discretion to mitigate the removal penalty on his or her own initiative or at the request of the employee in question.
(d) Nothing in this section limits the discretion of the Secretary to remove employees for offenses other than those identified by the Secretary as an MRO.
§ 9901.713 Procedures.
An employee against whom an adverse action is proposed is entitled to the following:
(a) A proposal notice under §9901.714;
(b) An opportunity to reply under §9901.715; and
(c) A decision notice under §9901.716.
§ 9901.714 Proposal notice.
(a) Notice period. An employee will receive a minimum of 15 days advance written notice of a proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the notice period may be shortened to a minimum of 5 days. No notice of proposed action is necessary for furlough without pay due to unforeseen circumstances, such as sudden breakdown in equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities.
(b) Contents of notice. (1) The proposal notice will inform the employee of the factual basis for the proposed action in sufficient detail to permit the employee to reply to the notice, and inform the employee of his or her right to review the evidence supporting the proposed action. Evidence may not be used that cannot be disclosed to the employee, his or her representative, or designated physician pursuant to 5 CFR 297.204.
(2) When some but not all employees in a given category and/or organizational unit are being furloughed, the proposal notice will state the basis for selecting a particular employee for furlough, as well as the reasons for the furlough.
(c) Duty status during notice period. An employee will remain in a duty status in his or her regular position during the notice period. However, if it is determined that the employee's continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, adversely impact the Department's mission, or otherwise jeopardize legitimate Government interests, one or a combination of the following alternatives may be taken:
(1) Assign the employee to duties where it is determined that the employee is no longer a threat to the employee or others, the Department's mission, or Government property or interests;
(2) Allow the employee to take leave, or place him or her in an appropriate leave status (annual leave, sick leave, or leave without pay) or absence without leave if the employee has absented himself or herself from the worksite without approved leave; or
(3) Place the employee in a paid, non-duty status for such time as is necessary to effect the action.
§ 9901.715 Opportunity to reply.
(a) An employee will be provided a minimum of 10 days, which will run concurrently with the notice period, to reply orally and/or in writing to a notice of proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the reply period may be reduced to a minimum 5 days, which will run concurrently with the notice period. No opportunity to reply is necessary for furlough without pay due to unforeseen circumstances, such as sudden breakdown in equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities.
(b) The opportunity to reply orally does not include the right to a formal hearing with examination of witnesses.
(c) During the opportunity to reply period, the employee will be provided a reasonable amount of official time to review the evidence, and to furnish affidavits and other documentary evidence, if the employee is otherwise in an active duty status.
(d) An official will be designated to receive the employee's written and/or oral response. The official will have authority to make or recommend a final decision on the proposed adverse action.
(e) The employee may be represented by an attorney or non-Federal employee representative, at the employee's expense, or other representative of the employee's choice, subject to paragraph (f) of this section. The employee will provide a written designation of his or her representative.
(f) An employee's representative may be disallowed if the representative is—
(1) An individual whose activities as representative would cause a conflict between the interest or position of the representative and that of the Department,
(2) An employee of the Department whose release from his or her official position would give rise to unreasonable costs or whose work assignments preclude his or her release; or
(3) An individual whose activities as representative could compromise security.
(g)(1) An employee who wishes consideration of any medical condition that may be relevant to the proposed adverse action will provide medical documentation, as that term is defined at 5 CFR 339.104, during the opportunity to reply, whenever possible.
(2) A medical examination may be required or offered pursuant to 5 CFR part 339, subpart C, when an employee's medical documentation is under consideration.
(3) Withdrawal or delay of a proposed adverse action is not required when an employee's medical condition is under consideration . However—
(i) The employee will be allowed to provide medical documentation during the opportunity to reply;
(ii) Compliance with 29 CFR 1614.203 and relevant Equal Employment Opportunity Commission rules will occur; and
(iii) Compliance with 5 CFR 831.1205 or 844.202, as applicable, will occur in the issuance of a decision to remove.
§ 9901.716 Decision notice.
(a) Any reasons for the action other than those specified in the proposal notice may not be considered in a decision on a proposed adverse action.
(b) Any response from the employee and the employee's representative, if the response is provided to the official designated under §9901.715(d) during the opportunity to reply period, and any medical documentation furnished under §9901.715(g) will be considered.
(c) The decision notice will specify in writing the reasons for the decision and advise the employee of any appeal or grievance rights under subparts H or I of this part.
(d) To the extent practicable, the notice to the employee will be delivered on or before the effective date of the action. If delivery cannot be made to the employee in person, the notice may be delivered to the employee's last known address of record on or before the effective date of the action.
§ 9901.717 Departmental record.
(a) Document retention. The Department will keep a record of all relevant documentation concerning the action for a period of time pursuant to the General Records Schedule and the Guide to Personnel Recordkeeping. The record will include the following:
(1) A copy of the proposal notice;
(2) The employee's written response, if any, to the proposal;
(3) A summary of the employee's oral response, if any;
(4) A copy of the decision notice; and
(5) Any supporting material that is directly relevant and on which the action was substantially based.
(b) Access to the record. The Department will make the record available for review by the employee and furnish a copy of the record upon the employee's request or the request of the Merit Systems Protection Board (MSPB), but not less than 15 days after such a request.
Savings Provision
§ 9901.721 Savings provision.
This subpart does not apply to adverse actions proposed prior to the date of an affected employee's coverage under this subpart.
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