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6MISCELLANEOUSPROVISIONSRELATINGTOADMINISTRATIVELAWJUDGES

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6MISCELLANEOUSPROVISIONSRELATINGTOADMINISTRATIVELAWJUDGES

    MISCELLANEOUS PROVISIONS RELATING TO ADMINISTRATIVE LAW

    JUDGES

    ? 1215. Disciplinary action

    ; (a)(1) Except as provided in subsection (b), if the Special Counsel

    determines that disciplinary action should be taken against any

    employee for having -

    ; (A) committed a prohibited personnel practice,

    ; (B) violated the provisions of any law, rule, or regulation, or engaged in

    any other conduct within the jurisdiction of the Special Counsel as

    described in section 1216, or

    ; (C) knowingly and willfully refused or failed to comply with an order of

    the Merit Systems Protection Board, the Special Counsel shall prepare

    a written complaint against the employee containing the Special

    Counsel's determination, together with a statement of supporting facts,

    and present the complaint and statement to the employee and the

    Board, in accordance with this subsection.

    ; (2) Any employee against whom a complaint has been presented to the

    Merit Systems Protection Board under paragraph (1) is entitled to - ; (A) a reasonable time to answer orally and in writing, and to furnish

    affidavits and other documentary evidence in support of the answer; ; (B) be represented by an attorney or other representative; ; (C) a hearing before the Board or an administrative law judge appointed

    under section 3105 and designated by the Board;

    ; (D) have a transcript kept of any hearing under subparagraph (C); and ; (E) a written decision and reasons therefor at the earliest practicable

    date, including a copy of any final order imposing disciplinary action. ; (3) A final order of the Board may impose disciplinary action consisting

    of removal, reduction in grade, debarment from Federal employment for

    a period not to exceed 5 years, suspension, reprimand, or an

    assessment of a civil penalty not to exceed $1,000.

    ; (4) There may be no administrative appeal from an order of the Board.

    An employee subject to a final order imposing disciplinary action under

    this subsection may obtain judicial review of the order by filing a petition

    therefor with such court, and within such time, as provided for under

    section 7703(b).

    ; (5) In the case of any State or local officer or employee under chapter

    15, the Board shall consider the case in accordance with the provisions

    of such chapter.

    ; (b) In the case of an employee in a confidential, policy-making,

    policy-determining, or policy-advocating position appointed by the

    President, by and with the advice and consent of the Senate (other than

    an individual in the Foreign Service of the United States), the complaint

    and statement referred to in subsection (a)(1), together with any

    response of the employee, shall be presented to the President for

    appropriate action in lieu of being presented under subsection (a).

    ; (c)(1) In the case of members of the uniformed services and individuals

    employed by any person under contract with an agency to provide

    goods or services, the Special Counsel may transmit recommendations

    for disciplinary or other appropriate action (including the evidence on

    which such recommendations are based) to the head of the agency

    concerned.

    ; (2) In any case in which the Special Counsel transmits

    recommendations to an agency head under paragraph (1), the agency

    head shall, within 60 days after receiving such recommendations,

    transmit a report to the Special Counsel on each recommendation and

    the action taken, or proposed to be taken, with respect to each such

    recommendation.

    ? 1305. Administrative law judges

    For the purpose of sections 3105, 3344 , 4301(2)(D), and 5372 of this title and

    the provisions of section 5335(a)(B) of this title that relate to administrative law judges, the Office of Personnel Management may, and for the purpose of section 7521 of this title, the Merit Systems Protection Board may investigate, require reports by agencies, issue reports, including an annual report to Congress, prescribe regulations, appoint advisory committees as necessary, recommend legislation, subpena witnesses and records, and pay witness fees as established for the courts of the United States.

    ? 3105. Appointment of administrative law judges

    Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title. Administrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges. ? 3344. Details; administrative law judges

    An agency as defined by section 551 of this title which occasionally or

    temporarily is insufficiently staffed with administrative law judges appointed under section 3105 of this title may use administrative law judges selected by

    the Office of Personnel Management from and with the consent of other

    agencies.

    ? 3502. Order of retention

    ; (a) The Office of Personnel Management shall prescribe regulations for

    the release of competing employees in a reduction in force which give

    due effect to -

    ; (1) tenure of employment;

    ; (2) military preference, subject to section (a)(3) of this title; ; (3) length of service; and

    ; (4) efficiency or performance ratings. In computing length of service, a

    competing employee -

    ; (A) who is not a retired member of a uniformed service is entitled to

    credit for the total length of time in active service in the armed forces; ; (B) who is a retired member of a uniformed service is entitled to credit

    for -

    ; (i) the length of time in active service in the armed forces during a war,

    or in a campaign or expedition for which a campaign badge has been

    authorized; or

    ; (ii) the total length of time in active service in the armed forces if he is

    included under section 3501(a)(3)(A), (B), or

    ; (C) of this title; and

    ; (C) is entitled to credit for -

    ; (i) service rendered as an employee of a county committee established

    pursuant to section 8(b) of the Soil Conservation and Allotment Act or of

    a committee or association of producers described in section 10(b) of

    the Agricultural Adjustment Act; and

    ; (ii) service rendered as an employee described in section 2105(c) if

    such employee moves or has moved, on or after January 1, 1987,

    without a break in service of more than 3 days, from a position in a

    nonappropriated fund instrumentality of the Department of Defense or

    the Coast Guard to a position in the Department of Defense or the

    Coast Guard, respectively, that is not described in section 2105(c). ; (b) A preference eligible described in section 2108(3)(C) of this title who

    has a compensable service-connected disability of 30 percent or more

    and whose performance has not been rated unacceptable under a

    performance appraisal system implemented under chapter 43 of this

    title is entitled to be retained in preference to other preference eligibles. ; (c) An employee who is entitled to retention preference and whose

    performance has not been rated unacceptable under a performance

    appraisal system implemented under chapter 43 of this title is entitled to

    be retained in preference to other competing employees.

    ; (d)(1) Except as provided under subsection (e), an employee may not

    be released, due to a reduction in force, unless -

    ; (A) such employee and such employee's exclusive representative for

    collective-bargaining purposes (if any) are given written notice, in

    conformance with the requirements of paragraph (2), at least 60 days

    before such employee is so released; and

    ; (B) if the reduction in force would involve the separation of a significant

    number of employees, the requirements of paragraph (3) are met at

    least 60 days before any employee is so released.

    ; (2) Any notice under paragraph (1)(A) shall include -

    ; (A) the personnel action to be taken with respect to the employee

    involved;

    ; (B) the effective date of the action;

    ; (C) a description of the procedures applicable in identifying employees

    for release;

    ; (D) the employee's ranking relative to other competing employees, and

    how that ranking was determined; and

    ; (E) a description of any appeal or other rights which may be available. ; (3) Notice under paragraph (1)(B) -

    ; (A) shall be given to -

    ; (i) the appropriate State dislocated worker unit or units (referred to in

    section 311(b)(2) of the Job Training Partnership Act); and ; (ii) the chief elected official of such unit or each of such units of local

    government as may be appropriate; and

    ; (B) shall consist of written notification as to -

    ; (i) the number of employees to be separated from service due to the

    reduction in force (broken down by geographic area or on such other

    basis as may be required under paragraph (4));

    ; (ii) when those separations will occur; and

    ; (iii) any other matter which might facilitate the delivery of rapid response

    assistance or other services under the Job Training Partnership Act. ; (4) The Office shall prescribe such regulations as may be necessary to

    carry out this subsection. The Office shall consult with the Secretary of

    Labor on matters relating to the Job Training Partnership Act. ; (e)(1) Subject to paragraph (3), upon request submitted under

    paragraph (2), the President may, in writing, shorten the period of

    advance notice required under subsection (d)(1)(A) and (B), with

    respect to a particular reduction in force, if necessary because of

    circumstances not reasonably foreseeable.

    ; (2) A request to shorten notice periods shall be submitted to the

    President by the head of the agency involved, and shall indicate the

    reduction in force to which the request pertains, the number of days by

    which the agency head requests that the periods be shortened, and the

    reasons why the request is necessary.

    ; (3) No notice period may be shortened to less than 30 days under this

    subsection.

    ? 4301. Definitions

    For the purpose of this subchapter -

    ; (1) 'agency' means -

    ; (A) an Executive agency; and

    ; (B) the Government Printing Office; but does not include - ; (i) a Government corporation;

    ; (ii) the Central Intelligence Agency, the Defense Intelligence Agency,

    the National Security Agency, or any Executive agency or unit thereof

    which is designated by the President and the principal function of which

    is the conduct of foreign intelligence or counterintelligence activities; or ; (iii) the General Accounting Office;

    ; (2) 'employee' means an individual employed in or under an agency, but

    does not include -

    ; (A) an employee outside the United States who is paid in accordance

    with local native prevailing wage rates for the area in which employed; ; (B) an individual in the Foreign Service of the United States; ; (C) a physician, dentist, nurse, or other employee in the Veterans

    Health Administration of the Department of Veterans Affairs whose pay

    is fixed under chapter 73 of title 38;

    ; (D) an administrative law judge appointed under section 3105 of this

    title;

    ; (E) an individual in the Senior Executive Service or the Federal Bureau

    of Investigation and Drug Enforcement Administration Senior Executive

    Service;

    ; (F) an individual appointed by the President;

    ; (G) an individual occupying a position not in the competitive service

    excluded from coverage of this subchapter by regulations of the Office

    of Personnel Management; or

    ; (H) an individual who (i) is serving in a position under a temporary

    appointment for less than one year, (ii) agrees to serve without a

    performance evaluation, and (iii) will not be considered for a

    reappointment or for an increase in pay based in whole or in part on

    performance; and

    ; (3) 'unacceptable performance' means performance of an employee

    which fails to meet established performance standards in one or more

    critical elements of such employee's position.

    ? 5335. Periodic step-increases

    ; (a) An employee paid on an annual basis, and occupying a permanent

    position within the scope of the General Schedule, who has not reached

    the maximum rate of pay for the grade in which his position is placed,

    shall be advanced in pay successively to the next higher rate within the

    grade at the beginning of the next pay period following the completion of

    -

    ; (1) each 52 calendar weeks of service in pay rates 1, 2, and 3; ; (2) each 104 calendar weeks of service in pay rates 4, 5, and 6; or ; (3) each 156 calendar weeks of service in pay rates 7, 8, and 9; subject

    to the following conditions:

    ; (A) the employee did not receive an equivalent increase in pay from any

    cause during that period; and

    ; (B) the work of the employee is of an acceptable level of competence as

    determined by the head of the agency.

    ; (b) Under regulations prescribed by the Office of Personnel

    Management, the benefit of successive step-increases shall be

    preserved for employees whose continuous service is interrupted in the

    public interest by service with the armed forces or by service in

    essential non-Government civilian employment during a period of war or

    national emergency.

    ; (c) When a determination is made under subsection (a) of this section

    that the work of an employee is not of an acceptable level of

    competence, the employee is entitled to prompt written notice of that

    determination and an opportunity for reconsideration of the

    determination within his agency under uniform procedures prescribed

    by the Office of Personnel Management. If the determination is affirmed

    on reconsideration, the employee is entitled to appeal to the Merit

    Systems Protection Board. If the reconsideration or appeal results in a

    reversal of the earlier determination, the new determination supersedes

    the earlier determination and is deemed to have been made as of the

    date of the earlier determination. The authority of the Office to prescribe

    procedures and the entitlement of the employee to appeal to the Board

    do not apply to a determination of acceptable level of competence made

    by the Librarian of Congress.

    ; (d) An increase in pay granted by statute is not an equivalent increase

    in pay within the meaning of subsection (a) of this section. ; (e) This section does not apply to the pay of an individual covered by

    the performance management and recognition system established

    under chapter 54 of this title, or, appointed by the President, by and with

    the advice and consent of the Senate.

    ; (f) Notwithstanding subsection (b) or (e) of this section, an increase in

    pay granted under section 5404 of this title is an equivalent increase in

    pay within the meaning of subsection (a) of this section and shall be

    taken into account in the case of any employee who, before becoming

    subject to this section, was granted such an increase while covered by

    the performance management and recognition system established

    under chapter 54 of this title.

    ; (g) In computing periods of service under subsection (a) in the case of

    an employee who moves without a break in service of more than 3 days

    from a position under a nonappropriated fund instrumentality of the

    Department of Defense or the Coast Guard described in section 2105(c)

    to a position under the Department of Defense or the Coast Guard,

    respectively, that is subject to this subchapter, service under such

    instrumentality shall, under regulations prescribed by the Office, be

    deemed service in a position subject to this subchapter.

    ? 5372. Administrative law judges

    ; (a) For the purposes of this section, the term 'administrative law judge'

    means an administrative law judge appointed under section 3105. ; (b)(1) There shall be 3 levels of basic pay for administrative law judges

    (designated as AL-1, 2, and 3, respectively), and each such judge shall

    be paid at 1 of those levels, in accordance with the provisions of this

    section. The rates of basic pay for those levels shall be as follows: ; ----------------------------------------------------------------- ;

    ; AL-3, rate A 65 percent of the rate of ; basic pay for level IV of ; the Executive Schedule. ;

    ; AL-3, rate B 70 percent of the rate of ; basic pay for level IV of ; the Executive Schedule. ;

    ; AL-3, rate C 75 percent of the rate of ; basic pay for level IV of ; the Executive Schedule. ;

    ; AL-3, rate D 80 percent of the rate of ; basic pay for level IV of ; the Executive Schedule. ;

    ; AL-3, rate E 85 percent of the rate of ; basic pay for level IV of ; the Executive Schedule. ;

    ; AL-3, rate F 90 percent of the rate of ; basic pay for level IV of ; the Executive Schedule. ;

    ; AL-2 95 percent of the rate of ; basic pay for level IV of

    ; the Executive Schedule. ;

    ; AL-1 The rate of basic pay for ; level IV of the Executive ; Schedule.

    ; (2) The Office of Personnel Management shall determine, in

    accordance with procedures which the Office shall by regulation

    prescribe, the level in which each administrative-law-judge position

    shall be placed and the qualifications to be required for appointment to

    each level.

    ; (3)(A) Upon appointment to a position in AL-3, an administrative law

    judge shall be paid at rate A of AL-3, and shall be advanced

    successively to rates B, C, and D of that level upon completion of 52

    weeks of service in the next lower rate, and to rates E and F of that level

    upon completion of 104 weeks of service in the next lower rate. ; (B) The Office of Personnel Management may provide for appointment

    of an administrative law judge in AL-3 at an advanced rate under such

    circumstances as the Office may determine appropriate. ; (c) The Office of Personnel Management shall prescribe regulations

    necessary to administer this section.

    ? 7521. Actions against administrative law judges

    ; (a) An action may be taken against an administrative law judge

    appointed under section 3105 of this title by the agency in which the

    administrative law judge is employed only for good cause established

    and determined by the Merit Systems Protection Board on the record

    after opportunity for hearing before the Board.

    ; (b) The actions covered by this section are -

    ; (1) a removal;

    ; (2) a suspension;

    ; (3) a reduction in grade;

    ; (4) a reduction in pay; and

    ; (5) a furlough of 30 days or less; but do not include - ; (A) a suspension or removal under section 7532 of this title;

    ; (B) a reduction-in-force action under section 3502 of this title; or

    ; (C) any action initiated under section 1215 of this title

    ? 7532. Suspension and removal

    ; (a) Notwithstanding other statutes, the head of an agency may suspend

    without pay an employee of his agency when he considers that action

    necessary in the interests of national security. To the extent that the

    head of the agency determines that the interests of national security

    permit, the suspended employee shall be notified of the reasons for the

    suspension. Within 30 days after the notification, the suspended

    employee is entitled to submit to the official designated by the head of

    the agency statements or affidavits to show why he should be restored

    to duty.

    ; (b) Subject to subsection (c) of this section, the head of an agency may

    remove an employee suspended under subsection (a) of this section

    when, after such investigation and review as he considers necessary,

    he determines that removal is necessary or advisable in the interests of

    national security. The determination of the head of the agency is final. ; (c) An employee suspended under subsection (a) of this section who - ; (1) has a permanent or indefinite appointment;

    ; (2) has completed his probationary or trial period; and

    ; (3) is a citizen of the United States; is entitled, after suspension and

    before removal, to -

    ; (A) a written statement of the charges against him within 30 days after

    suspension, which may be amended within 30 days thereafter and

    which shall be stated as specifically as security considerations permit; ; (B) an opportunity within 30 days thereafter, plus an additional 30 days

    if the charges are amended, to answer the charges and submit

    affidavits;

    ; (C) a hearing, at the request of the employee, by an agency authority

    duly constituted for this purpose;

    ; (D) a review of his case by the head of the agency or his designee,

    before a decision adverse to the employee is made final; and ; (E) a written statement of the decision of the head of the agency.

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