Civil Service Reform Act of 1978

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1111

Public Law 95-454
95th Congress
An Act
To reform the civil service laws.

Oct. 13, 1978

Be it enacted hy the Senate and House of Representatives of the
United States of America in Congress assenibled,

1978.
5 USC 1101 note.

SHORT TITLE
SECTION

^-.j^jj Service
Reform Act of

1. This Act may be cited as the "Civil Service Keform Act

of 1978".
TABLE OF CONTENTS

SEC. 2. The table of contents is as follows:
TABLE OF CONTENTS
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings and statement of purpose.

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T I T L E I—MERIT SYSTEM PRINCIPLES
Sec. 101. Merit system principles; prohibited personnel practices.
TITLE II—CIVIL SERVICE FUNCTIONS; PERFORMANCE APPRAISAL;
ADVERSE ACTIONS
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.

201.
202.
203.
204.
205.
206.

Oflace of Personnel Management.
Merit Systems Protection Board and Special Counsel.
Performance appraisals.
Adverse actions.
Appeals.
Technical and conforming amendments.
TITLE III—STAFFING

Sec. 301. Volunteer service.
Sec. 302. Interpreting assistants for deaf employees.
Sec. 303. Probationary period.
Sec. 304. Training.
Sec. 305. Travel, transportation, and subsistence.
Sec. 306. Retirement.
Sec. 307. Veterans and preference eligibles.
Sec. 308. Dual pay for retired members of the uniformed services.
Sec. 309. Civil service employment information.
Sec. 310. Minority recruitment program.
Sec. 311. Temporary employment limitation.
TITLE IV—SENIOR EXECUTIVE SERVICE
Sec.
Sec.
Sec.
SPC.
See.
Sec.
Sec.
Sec.
See.
See.
Sec.
Sec.
Sec.
Sec.
Sec.

401.
402.
403.
404.
405.
406.
407.
408.
409.
410.
411.
412.
413.
414.
415.

General provisions.
Authority for employment.
Examination, certification, and appointment.
Retention preference.
Performance rating.
Awarding of ranks.
Pay rates and systems.
Pay administration.
Travel, transportation, and subsistence.
Leave.
Disciplinary actions.
Retirement.
Conversion to the Senior Executive Service.
Limitations ^ n executive positions.
Effective-date; congressional review.

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92 STAT. 1112

PUBLIC LAW 95-454—OCT. 13, 1978
TABLE OF CONTENTS—Continued

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TITLE V—MERIT PAY
Sec. 501. Pay for performance.
Sec. 502. Incentive awards amendments.
Sec. 503. Tectinical and conforming amendments.
Sec. 504. Effective date.
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TITLE VI—RESEARCH, DEMONSTRATION, AND OTHER PROGRAMS
Sec. 601. Researcli programs and demonstration projects.
Sec. 602. Intergovernmental Personnel Act amendments.
Sec. 603. Amendments to the mobility program.
TITLE VII—FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
Sec. 701. Federal service labor-management relations.
!' ; ••
Sec. 702. Backpay in case of unfair labor practices and grievances.
Sec. 703. Technical and conforming amendments.
Sec. 704. Miscellaneous provisions.
i
t;!**'
TITLE VIII—GRADE AND PAY RETENTION
Sec. 801. Grade and pay retention.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.

TITLE IX—MISCELLANEOUS
901. Study on decentralization of governmental functions.
902. Savings provisions.
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903. Authorization of appropriations.
904, Povi^ers of President unaffected except by express provisions.
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905. Reorganizations plans.
906. Technical and conforming amendments.
907. Effective date.
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FINDINGS AND STATEMENT OF PURPOSE

5 u s e 1101 note.

S E C . 3. I t is the policy of the United States that—
(1) in order to provide the people of the United States with a
competent, honest, and productive Federal work force reflective
of the Nation's divei-sity, and to improve the quality of public
service, Federal personnel management should be implemented
consistent with merit system principles and free from prohibited
personnel practices;
(2) the merit system principles which shall govern in the competitive service and in the executive branch of the Federal Government should be expressly stated to furnish guidance to Federal
agencies in carrying out their responsibilities in administering the
public business, and prohibited personnel practices should be
statutorily defined to enable Federal employees to avoid conduct
which undermines the merit system principles and the integrity
of the merit system;
(3) Federal employees should receive appropriate protection
t h r o u g h increasing the authority and powers of the Merit Systems
Protection Board in processing hearings and appeals affecting
Federal employees;
(4) the authority and power of the Special Counsel should be
increased so t h a t the Special Counsel may investigate allegations
involving prohibited personnel practices and reprisals against
Federal employees for the law ful disclosure of certain information
and may file complaints against agency officials and employees who
engage in such conduct;
(5) the function of filling positions and other personnel functions in the competitive service and in the executive branch should

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1113

be delegated in appropriate cases to the agencies to expedite processing appointments and other personnel actions, with the control
and oversight of this delegation being maintained by the Office
of Personnel Management to protect against prohibited personnel
practices and t h e use of unsound management practices by the
agencies;
(6) a Senior Executive Service should be established to provide
the flexibility needed by agencies to recruit and retain the highly
competent and qualified executives needed to provide more effective management of agencies and their functions, and the more
expeditious administration of the public business;
(7) in appropriate instances, pay increases should be based on
quality of performance rather t h a n length of service;
(8) research programs and demonstration projects should be
authorized to permit Federal agencies to experiment, subject to
congressional oversight, with new and different personnel management concepts in controlled situations to achieve more efficient
management of the Government's human resources and greater
productivity in the delivery of service to the public;
(9) the training program of the Government should include
retraining of employees for positions in other agencies to avoid
separations during reductions in force and the loss to the Government of the knowledge and experience t h a t these employees possess; and
(10) the r i g h t of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions
which affect them, with full regard for the public interest and the
effective conduct of public business, should be specifically recognized in statute.
TITLE I—MEEIT SYSTEM PRINCIPLES
MERIT SYSTEM P R I N C I P L E S ; PROHIBITED PERSONNEL PRACTICES

SEC. 101. (a) Title 5, United States Code, is amended by inserting
after chapter 21 t h e following new c h a p t e r :

-^

" C H A P T E R 23—MERIT S Y S T E M P R I N C I P L E S
"Sec.
"2301. Merit system principles.
"2302. Prohibited personnel practices.
"2303. Prohibited personnel practices in the Federal Bureau of Investigation.
"2304. Responsibility of the General Accounting Office.
"2305. Coordination with certain other provisions of law.
"§ 2301. Merit system principles
5 USC 2301.
" (a) This section shall apply to—
" ( 1 ) an Executive agency;
" ( 2 ) the Administrative Office of the United States C o u r t s ;
and
J
" ( 3 ) the Government P r i n t i n g Office.
. ' . '
" ( b ) Federal personnel management should be implemented consistent with the following merit system principles:
" ( 1 ) Recruitment should be from qualified individuals from
appropriate sources in an endeavor to achieve a work force from
all segments of society, and selection and advancement should
be determined solely on the basis of relative ability, knowledge,
and skills, after fair and open competition which assures t h a t all
receive equal opportunity.

92 STAT. 1114

Infra.

j A S i ..^-C

5 use 2302.
Definitions.

PUBLIC LAW 95-454—OCT. 13, 1978
"(2) All employees and applicants for employment should
receive fair and equitable treatment in all aspects of personnel
management without regard to political affiliation, race, color,
religion, national origin, sex, marital status, age, or handicapping
condition, and with proper regard for their privacy and constitutional rights.
"(3) Equal pay should be provided for work of equal value,
with appropriate consideration of both national and local rates
paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in
performance.
"(4) All employees should maintain high standards of
integrity, conduct, and concern for the public interest.
"(5) The Federal work force should be used efficiently and
effectively.
" (6) Employees should be retained on the basis of the adequacy
of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will
not improve their performance to meet required standards.
"(7) Employees should be provided effective education and
training in cases in which such education and training would
result in better organizational and individual performance.
"(8) Employees should be—
"(A) protected against arbitrary action, personal favor_l, ,,
itism, or coercion for partisan political purposes, and
"(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result
of an election or a nomination for election.
"(9) Employees should be protected against reprisal for the
lawful disclosure of information which the employees reasonably
believe evidences—
"(A) a violation of any law, rule, or regulation, or
"(B) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety.
"(c) In administering the provisions of this cliapter—
"(1) with respect to any agency (as defined in section 2302(a)
(2) (C) of this title), the President shall, pursuant to the authority
otherwise available under this title, take any action, including
the issuance of rules, regulations, or directives; and
"(2) with respect to any entity in the executive branch which
is not such an agency or part of such an agency, the head of such
entity shall, pursuant to authority otherwise available, take any
action, including the issuance of rules, regulations, or directives;
which is consistent with the provisions of this title and which the
President or the head, as the case may be, determines is necessary to
ensure that personnel management is based on and embodies the merit
system principles.
"§2302. Prohibited personnel practices
" (a) (1) For the purpose of this title, 'prohibited personnel practice'
means any action described in subsection (b) of this section.
"(2) For the purpose of this section—
" (A) 'personnel action' means—
..
"(i) an appointment;
'"
" (ii) a promotion;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1115

" (iii) an action under chapter 75 of this title or other disciplinary or corrective action;
"(iv) a detail, transfer, or reassignment;
"(v) a reinstatement;
"(vi) a restoration;
"(vii) a reemployment;
"(viii) a performance evaluation under chapter 43 of this
title;
"(ix) a decision concerning pay, benefits, or awards, or
..,:.
concerning education or training if the education or training
may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described
in this subparagraph; and
"(x) any other significant change in duties or res|X)nsibil4
ities which is inconsistent with the employee's salary or grade
level;
with respect to an employee in, or applicant for, a covered position
in an agency;
"(B) 'covered position' means any position in the competitive
service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include—
"(i) a position which is excepted from the competitive
service because of its confidential, policy-determining, policymaking, or policy-advocating character; or
"(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good
administration.
"(C) 'agency'means an Executive agency, the Administrative
Office of the United States (^ourts, and tlie Government Printing
Office, but does not include—
"(i) a Government corporation;
"(ii) the Federal Bureau of Investigation, the Central
''-"'
Intelligence Agency, the Defense Intelligence Agency, the
National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal
function of which is the conduct of foreign intelligence or
counterintelligence activities; or
"(iii) the General Accounting Office.
"(b) Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect to
such authority—
"(1) discriminate for or against any employee or applicant for
employment—
"(A) on the basis of race, color, religion, sex, or national
origin, as prohibited under section 717 of the Civil Eights Act
of 1964 (42 U.S.C. 2000e-16);
"(B) on the basis of age, as prohibited under sections 12
and 15 of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 631,633a);
"(C) on the basis of sex, as prohibited under section 6(d) of
the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
" (D) on the basis of handicapping condition, as prohibited
under section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791); or
'"
" ( E ) on the basis of marital status or political affiliation,
as prohibited under any law, rule, or regulation;

39-194 O—80—pt. 1

74 : Q U

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92 STAT. 1116

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5 use 3110.

PUBLIC LAW 95-454—OCT. 13, 1978
"(2) solicit or consider any recommendation or statement, oral
or written, with respect to any individual who requests or is under
consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records
of the person furnishing it and consists of—
"(A) an evaluation of the work performance, ability,
ft^ •'
aptitude, or general qualifications of such individual; or
"(B) an evaluation of the character, loyalty, or suitability
of such individual;
"(3) coerce the political activity of any person (including the
providing of any political contribution or service), or take any
action against any employee or applicant for employment as a
reprisal for the refusal of any person to engage in such political
activity;
"(4) deceive or willfully obstruct any person with respect to
such person's right to compete for employment;
"(6) influence any person to withdraw from competition for
any position for the purpose of improving or injuring the prospects of any other person for employment;
"(6) grant any preference or advantage not authorized by law,
rule, or regulation to any employee or applicant for employment
(including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or
injuring the prospects of any particular person for emplojnnent;
"(7) appoint, employ, promote, advance, or advocate for
appointment, employment, promotion, or advancement, in or to a
civilian position any individual who is a relative (as defined in
section 3110(a) (3) of this title) of such employee if such position
is in the agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this title) or over
which such employee exercises jurisdiction or control as such an
official;
"(8) take or fail to take a personnel action with respect to any
employee or applicant for employment as a reprisal for—
"(A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes
' '
evidences—
"(i) a violation of any law, rule, or regulation, or
^j
"(ii) mismanagement, a gross waste of funds, an abuse
"': '
of authority, or a substantial and specific danger to public
health or safety,
if such disclosure is not specifically prohibited by law and if
such information is not specifically required by Executive
order to be kept secret in the interest of national defense or
the conduct of foreign affairs; or
"(B) a disclosure to the Special Counsel of the ]Merit Systems Protection Board, or to the Inspector General of an
agency or another employee designated by the head of the
agency to receive such disclosures, of information which the
employee or applicant reasonably believes evidences—
" (i) a violation of any law, rule, or regulation, or
"(ii) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety;
"(9) take or fail to take any personnel action against any
*^' employee or applicant for employment as a reprisal for the exercise
of any appeal right granted by any law, rule, or regulation;

PUBLIC LAW 95-454—OCT. 13, 1978
" (10) discriminate for or against any employee or applicant for
employment on the basis of conduct which does not adversely affect
the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall
prohibit an agency from taking into account in determining
suitability or fitness any conviction of the employee or applicant
for any crime under the laws of any State, of the District of
Columbia, or of the United States; or
" (11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system
principles contained in section 2301 of this title.
This subsection shall not be construed to authorize the withholding of
information from the Congress or the taking of any personnel action
against an employee who discloses information to the Congress.
"(c) The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and
enforcement of applicable civil service laws, rules, and regulations,
and other aspects of personnel management. Any individual to whom
the head of an agency delegates authority for personnel management,
or for any aspect thereof, shall be similarly responsible within the
limits of the delegation.
"(d) This section shall not be construed to extinguish or lessen any
effort to achieve equal employment opportunity through affirmative
action or any right or remedy available to any employee or applicant
for employment in the civil service under—
"(1) section 7l7 of the Civil Eights Act of 1964 (42 TJ.S.C.
2000e-16), prohibiting discrimination on the basis of race, color,
religion, sex, or national origin;
"(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;
"(3) under section 6(d) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206 (d)), prohibiting discrimination on the basis
of sex *
"(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), prohibiting discrimination on the basis of handicapping
condition; or
"(5) the provisions of any law, rule, or regulation prohibiting
discrimination on the basis of marital status or political
affiliation.
"2303. Prohibited personnel practices in the Federal Bureau of
Investigation
"(a) Any employee of the Federal Bureau of Investigation who has
authority to take, direct others to take, recommend, or approve any
personnel action, shall not, with respect to such authority, take or fail
to take a personnel action with respect to any employee of the Bureau
as a reprisal for a disclosure of information by the employee to the
Attorney General (or an employee designated by the Attorney General
for such purpose) which the employee or applicant reasonably believes
evidences—
" (1) a violation of any law, rule, or regulation, or
" (2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
For the purpose of this subsection, 'personnel action' means any action
described in clauses (i) through (x) of section 2302(a) (2) (A) of this

92 STAT. 1117

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5 USC 2303.

"Personnel
action."

92 STAT. 1118

Regulations.

Presidential
enforcement.
Post, p. 1125.
5 u s e 2304.

Report to
President and
Congress.

5 u s e 2305.

'MS 'mi

PUBLIC LAW 95-454~0CT. 13, 1978
title with respect to an employee in, or applicant for, a position in the
Bureau (other than a position of a confidential, policy-determining,
policymaking, or policy-advocating character).
" (b) The Attorney General shall prescribe regulations to ensure that
such a personnel action shall not be taken against an employee of the
Bureau as a reprisal for any disclosure of information described in
subsection (a) of this section.
"(c) The President shall provide for the enforcement of this section
in a manner consistent with the provisions of section 1206 of this title.
"§2304. Responsibility of the General Accounting Office
"(a) If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General,
the General Accounting Office shall conduct audits and reviews to
assure compliance with the laws, rules, and regulations governing
employment in the executive branch and in the competitive service and
to assess the effectiveness and soundness of Federal personnel
management.
"(b) the General Accounting Office shall prepare and submit an
annual report to the President and the Congress on the activities of
the Merit Systems Protection Board and the Office of Personnel
Management. The report shall include a description of—
" (1) significant actions taken by the Board to carry out its functions under this title; and
"(2) significant actions of the Office of Personnel Management,
including an analysis of whether or not the actions of the Office
are in accord with merit system principles and free from prohibited personnel practices.
*'§2305. Coordination with certain other provisions of law
"No provision of this chapter, or action taken under this chapter,
shall be construed to impair the authorities and responsibilities set
forth in section 102 of the National Security Act of 1947 (61 Stat, 495;
50 XJ.S.C. 403), the Central Intelligence Agency Act of 1949 (63 Stat.
208; 50 U.S.C. 403a and following), the Act entitled 'An Act to provide certain administrative authorities for the National Security
Agency, and for other purposes', aj)proved May 29,1959 (73 Stat. 63;
50 U.S.C. 402 note), and the Act entitled 'An Act to amend the Internal
Security Act of 1950', approved March 26, 1964 (78 Stat. 168; 50
U.S.C. 831-835).".
(b) (1) The table of chapters for part I I I of title 5, United States
Code, is amended by adding after the item relating to chapter 21 the
following new item:
"23. Merit system principles

_

2301".

(2) Section 7153 of title 5, United States Code, is amended—
(A) by striking out "Physical handicap" in the catchline and
inserting in lieu thereof "Handicapping condition"; and
(B) by striking out "physical handicap" each place it appears
in the text and inserting m lieu thereof "handicapping condition".
T I T L E II—CIVIL SERVICE FUNCTIONS; PERFORMANCE
A P P R A I S A L ; ADVERSE ACTIONS
OFFICE OF PERSONNEL

MANAGEMENT

SEC. 201. (a) Chapter 11 of title 5, United States Code, is amended
to read as follows:

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1119

" C H A P T E R 11—OFFICE OF P E R S O N N E L M A N A G E M E N T

.

"Sec.
^"
"1101. Office of Personnel Management.
"1102. Director; Deputy Director; Associate Directors.
"1103. Functions of tlie Director.
"1104. Delegation of authority for personnel management.
"1105. Administrative procedure.
"§ 1101. Office of Personnel Management
5 use lioi.
" T h e Office of Personnel Management is an independent establishment in the executive branch. T h e Office shall have an official seal,
xMU q as.'s
which shall be judicially noticed, and shall have its principal office in
the District of Columbia, and may have field offices in other appropriate locations.
"§ 1102. Director; Deputy Director; Associate Directors
5 USC 1102.
" ( a ) There is at the head of the Office of Personnel Management a
Director of the Office of Personnel Management appointed by the
President, by and with the advice and consent of the Senate. T h e term
of office of any individual appointed as Director shall be 4 years.
" ( b ) There is in the Office a Deputy Director of the Office of Personnel Management appointed by the President, by and with the advice
and consent of the Senate. T h e Deputy Director shall perform such
functions as the Director may from time to time prescribe and shall act
as Director during the absence or disability of the Director or when
the office of Director is vacant.
" (c) No individual shall, while serving as Director or Deputy Director, serve in any other office or position in the Government of t h e
United States except as otherwise provided by law or at the direction
of the President. T h e Director and Deputy Director shall not recommend any individual for appointment to any position (other than
;:)li ; ? ' •'
Deputy Directoi- of the Office) which requires the advice and consent
of the Senate.
" ( d ) There may be within the Office of Personnel Management not
more than 5 Associate Directors, as determined from time to time by
the Director. Each Associate Director shall be appointed by the
Director.
"§ l l O a Functions of the Director
5 USC 1103.
" (a) T h e following functions are vested in the Director of the Office
of Personnel Management, and shall be performed by the Director, or
subject to section 1104 of this title, by such employees of the Office as
the Director designates:
" (1) securing accuracy, uniformity, and justice in the functions
of the Office;
" (2) appointing individuals to be employed by the Office;
" ( 3 ) directing and supervising employees of t h e Office, distributing business among employees and organizational units of
the Office, and directing the internal management of the Office;
" ( 4 ) directing the preparation of requests for appropriations
for the Office and the use and expenditure of funds by the Office;
" ( 5 ) executing, administering, and enforcing—
" ( A ) the civil service rules and regulations of the President
and the Office and t h e laws governing the civil service; and
" ( B ) the other activities of the Office including retirement
and classification activities;
except with respect to functions for which the Merit Systems P r o tection Board or the Special Counsel is primarily responsible;

92 STAT. 1120
5 use 8701
et seq.

Post, p. 1185.
Notice of
proposed
rules or
regulations.
Publication in
Federal Register.
5 u s e 553.

5 u s e 1104.

.ni,n.1, ^r.[

Standards.

Oversight
program.

PUBLIC LAW 95-454—OCT. 13, 1978
" (6) reviewing the operations under chapter 87 of this title;
"(7) aiding the President, as the President may request, in
preparing such civil service rules as the President prescribes, and
otherwise advising the President on actions which may be taken
to promote an efficient civil service and a systematic application
of the merit system principles, including recommending policies
relating to the selection, promotion, transfer, performance, pay,
conditions of service, tenure, and separation of employees; and
"(8) conducting, or otherwise providing for the conduct of,
studies and research under chapter 47 of this title into methods of
assuring improvements in personnel management.
"(b) (1) The Director shall publish in the Federal Register general
notice of any rule or regulation which is proposed by the Office and
the application of which does not apply solely to the Office or its
employees. Any such notice shall include the matter required under
section 553(b) (1), (2), and (3) of this title.
" (2) The Director shall take steps to ensure that—
"(A) any proposed rule or regulation to which paragraph (1)
of this subsection applies is posted in offices of Federal agencies
maintaining copies of the Federal personnel regulations; and
"(B) to the extent the Director determines appropriate and
practical, exclusive representatives of employees affected by such
proposed rule or regulation and interested members of the public
are notified of such proposed rule or regulation.
"(3) Paragraphs (1) and (2) of this subsection shall not apply to
any proposed rule or regulation which is temporary in nature and
which is necessary to be implemented expeditiously as a result of an
emergency.
*'§ 1104. Delegation of authority for personnel management
"(a) Subject to subsection (b)(3) of this section—
"(1) the President may delegate, in whole or in part, authority
for personnel management functions, including authority for
competitive examinations, to the Director of the Office of Personnel Management; and
"(2) the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including
authority for competitive examinations (except competitive
examinations for administrative law judges appointed under
section 3105 of this title), to the heads of agencies in the executive branch and other agencies employing persons in the competitive service;
except that the Director may not delegate authority for competitive
examinations with respect to positions that have requirements which
are common to agencies in the Federal Government, other than in
exceptional cases in which the interests of economy and efficiency
require such delegation and in which such delegation will not weaken
the application of the merit system principles.
"(b) (1) The Office shall establisih standards which shall apply to
the activities of the Office or any other agency under authority delegated under subsection (a) of this section.
"(2) The Office shall establish and maintain an oversight program
to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system
principles and the standards established under paragraph (1) of
this subsection.
, .,....„.,

PUBLIC LAW 95-454—OCT. 13, 1978
"(3) Nothing in subsection (a) of this section shall be construed
as affecting the responsibility of the Director to prescribe regulations
and to ensure compliance with the civil service laws, rules, and regulations.
"(c) If the Office makes a written finding, on the basis of information obtained under the program established under subsection (b) (2)
of this section or otherwise, that anj^ action taken by an agency
pursuant to authority delegated under subsection (a) (2) of this
section is contrary to any law, rule, or regulation, or is contrary to
any standard established under subsection (b) (1) of this section, the
agency involved shall take any corrective action the Office may
require.
"§ 1105. Administrative procedure
"Subject to section 1103(b) of this title, in the exercise of the functions assigned under this chapter, the Director shall be subject to
subsections (b), (c), and (d) of section 553 of this title, notwithstanding subsection (a) of such section 553.".
(b) (1) Section 5313 of title 5, United States Code, is amended by
inserting at the end thereof the following new paragraph:
"(24) Director of the Office of Personnel Management.".
(2) Section 5314 of such title is amended by inserting at the end
thereof the following new paragraph:
"(68) Deputy Director of the Office of Personnel Management.".
(3) Section 5316 of such title is amended by inserting after paragraph (121) the following:
"(122) Associate Directors of the Office of Personnel Management (5).".
(c) (1) The heading of part I I of title 5, United States Code is
amended by striking out "THE UNITED STATES CIVIL SERVICE COMMISSION" and inserting in lieu thereof "CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES".
(2) The item relating to chapter 11 in the table of chapters for part
I I of such title is amended by striking out "Organization" and inserting in lieu thereof "Office of Personnel Management".

92 STAT. 1121

^^^,
5 use 1105.
5 USC 553.

5 USC 5314.

5 USC 5316.

MERIT SYSTEMS PROTECTIOlSr BOARD AND SPECIAL COUNSEL

)
SEC. 202. (a) Title 5, United States Code, is amended by inserting
after chapter 11 the following new chapter:

M>t ,r i '.

"CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD
AND SPECIAL COUNSEL
"Sec.

"1201.
"1202.
"1203.
"1204.
"1205.
"1206.
"1207.
"1208.
"1209.

Appointment of members of the Merit Systems Protection Board.
Term of office; filling vacancies; removal.
Chairman; Vice Chairman.
Special Counsel; appointment and removal.
Powers and functions of the Merit Systems Protection Board and Special
Counsel.
Authority and responsibilities of the Special Counsel.
Hearings and decisions on complaints filed by the Special Counsel.
Stays of certain personnel actions.
Information.

^- :

.

"§ 1201. Appointment of members of the Merit Systems Protection 5 USC 1201.
Board
"The Merit Systems Protection Board is composed of 3 members
appointed by the President, by and with the advice and consent of
the Senate, not more than 2 of vvliom may be adherents of the same

92 STAT. 1122

PUBLIC LAW 95-454—OCT. 13, 1978

political party. The Chairman and members of the Board shall be
individuals who, by demonstrated ability, background, training, or
experience are especially qualified to carry out the functions of the
Board. No member of the Board may hold another office or position
in the Government of the United States, except as otherwise provided
by law or at the direction of the President. The Board shall have an
official seal which shall be judicially noticed. The Board shall have
its principal office in the District of Columbia and may have field
offices in other appropriate locations.
5 use 1202.
"§ 1202. Term of office, filling vacancies; removal
"(a) The term of office of each member of the Merit Systems Protection Board is 7 years.
' *
" (b) A member appointed to fill a vacancy occurring before the end
of a term of office of his predecessor serves for the remainder of that
term. Any appointment to fill a vacancy is subject to the requirements
• i;'; ii
of section 1201 of this title.
"(c) Any member appointed for a 7-year term may not be reappointed to any following term but may continue to serve beyond the
expiration of the term until a successor is appointed and has qualified,
except that such member may not continue to serve for more than one
A--ltl J *
year after the date on which the term of the member would otherwise
expire under this section.
"(d) Any member may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.
5 use 1203.
Ǥ 1203. Chairman; Vice Chairman
"(a) The President shall from time to time, appoint, by and with
the advice and consent of the Senate, one of the members of the Merit
Systems Protection Board as the Chairman of the Board. The Chairman is the chief executive and administrative officer of the Board.
"(b) The President shall from time to time designate one of the
members of the Board as Vice Chairman of the Board. During the
absence or disability of the Chairman, or when the office of Chairman
is vacant, the Vice Chairman shall perform the functions vested in the
Chairman.
"(c) During the absence or disability of both the Chairman and
Vice Chairman, or when the offices of Chairman and Vice Chairman
are vacant, the remaining Board member shall perform the functions
vested in the Chairman.
5 use 1204.
Ǥ 1204. Special Counsel; appointment and removal
"The Special Counsel of the Merit Systems Protection Board shall
be appointed by the President from attorneys, by and with the advice
and consent of the Senate, for a term of 5 years. A Special Counsel
appointed to fill a vacancy occurring before the end of a term of office
of his predecessor serves for the remainder of the term. The Special
Counsel may be removed by the President only for inefficiency, neglect
of duty, or malfeasance in office.
5 use 1205.
Ǥ 1205. Powers and functions of the Merit Systems Protection
Board and Special Counsel
" (a) The Merit Systems Protection Board shall—
"(1) hear, adjudicate, or provide for the hearing or adjudica^^ ^ ,
tion, of all matters within the jurisdiction of the Board under this
Ami ..!'•••. i,
^^^|g^ section 2023 of title 38, or any other law, rule, or regulation,
and, subject to otherwise applicable provisions of law, take final
action on any such matter;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1123

"(2) order any Federal agency or employee to comply with
any order or decision issued by the Board under the authority
granted under paragraph (1) of this subsection and enforce com;^
pliance with any such order;
"(3) conduct, from time to time, special studies relating to the
civil service and to other merit systems in the executive branch,
and report to the President and to the Congress as to whether
the public interest in a civil service free of prohibited personnel
practices is being adequately protected; and
"(4) review, as provided in subsection (e) of this section, rules
and regulations of the Office of Personnel Management.
"(b) (1) Any member of the Merit Systems Protection Board, the
Special Counsel, any administrative law judge appointed by the Board
under section 3105 of this title, and any employee of the Board desig- 5 USC 3105.
nated by the Board may administer oaths, examine witnesses, take depositions, and receive evidence.
"(2) Any member of the Board the Special Counsel, and any
administrative law judge appointed by the Board under section 3105
of this title may—•
"(A) issue subpenas requiring the attendance and testimony Subpenas.
of witnesses and the production of documentary or other evidence
from any place in the United States or any territory or possession
thereof, the Commonwealth of Puerto Rico, or the District of
Columbia; and
"(B) order the taking of depositions and order responses to
written interrogatories.
"(3) Witnesses (whether appearing voluntarily or under subpena) Witnesses,
shall be paid the same fee and mileage allowances which are paid
subpenaed witnesses in the courts of the United States.
"(c) In the case of contumacy or failure to obey a subpena issued
under subsection (b) (2) of this section, the United States district
court for the judicial district in which the person to whom the subpena
is addressed resides or is served may issue an order requiring such
person to appear at any designated place to testify or to produce
documentary or other evidence. Any failure to obey the order of the
court may be punished by the court as a contempt thereof.
"(d) (1) In any proceeding under subsection (a) (1) of this section,
any member of the Board may request from the Director of the Office
of Personnel Management an advisory opinion concerning the interpretation of any rule, regulation, or other policy directive promulgated by the Office of Personnel Management.
u.^,,- v '
"(2) In enforcing compliance with any order under subsection (a)
(2) of this section, the Board may order that any employee charged
with complying with such order, other than an employee appointed
by the President by and with the advice and consent of the Senate,
shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with. The
Board shall certify to the Comptroller General of the United States
that such an order has been issued and no payment shall be made out
of the Treasury of the United States for any service specified in such
order.
"(3) In carrying out any study under subsection (a)(3) of this
section, the Board shall make such inquiries as may be necessary and,
unless otherwise prohibited by law, shall have access to personnel
records or information collected by the Office and may require additional reports from other agencies as needed.

92 STAT. 1124

Ante, p. 1119.

Ante, p. 1114.

.mwsQik-

Regulations.
Publication in
Federal Register.

5 u s e 3324.
Post, p. 1161.

PUBLIC LAW 95-454—OCT. 13, 1978
"(e) (1) At any time after the effective date of any rule or regulation issued by the Director in carrying out functions under section
1103 of this title, the Board shall review any provision of such rule
or regulation—
" (A) on its own motion;
"(B) on the granting by the Board, in its sole discretion, of
any petition for such review filed with the Board by any interested
person, after consideration of the petition by the Board; or
"(C) on the filing of a written complaint by the Special Counsel requesting such review.
"(2) In reviewmg any provision of any rule or regulation pursuant
to this subsection the Board shall declare such provision—
"(A) invalid on its face, if the Board determines that such
provision would, if implemented by any agency, on its face,
require any employee to violate section 2302(b) of this title; or
"(B) invalidly implemented by any agency, if the Board determines that such provision, as it has been implemented by the
agency through any personnel action taken by the agency or
through any policy adopted by the agency in conformity with
such provision, has required any employee to violate section 2302
(b) of this title.
"(3) (A) The Director of the Office of Personnel Management, and
the head of any agency implementing any provision of any rule or regulation under review pursuant to this subsection, shall have the right
to participate in such review.
"(B) Any review conducted by the Board pursuant to this subsection shall be limited to determining—
"(i) the validity on its face of the provision under review; and
"(ii) w'hether the provision under review has been validly
implemented.
"(C) The Board shall require any agency.—
"(i) to cease compliance with any provisions of any rule or
regulation which the Board declares under this subsection to be
invalid on its face; and
"(ii) to correct any invalid implementation by the agency of
any provision of any rule or regulation which the Board declares
under this subsection to have been invalidly implemented by the
agency.
"(f) The Board may delegate the performance of any of its administrative fimctions under this title to any employee of the Board.
"(g) The Board shall have the authority to prescribe such regulations as may be necessary for the performance of its functions. The
Board shall not issue advisory opinions. All regulations of the Board
shall be published in the Federal Register.
" (h) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Chairman
of the Board mav appear for the Board, and represent the Board, in
any civil action brought in connection with any function carried out
by the Board pursuant to this title or as otherwise authorized by law.
"(i) The Chairman of the Board may appoint such personnel as
may be necessary to perform the functions of the Board. Any appointment made under this subsection shall comply with the provisions of
this title, except that such appointment shall not be subject to the
approval or supervision of the Office of Personnel Management or the
Executive Office of the President (other than approval required under
section 3324 or subchapter V I I I of chapter 33 of this title).

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1125

"(j) The Board shall prepare and submit to the President, and, at
the same time, to the appropriate committees of Congress, an annual
budget of the expenses and other items relating to the Board which
shall, as revised, be included as a separate item in the budget required
to be transmitted to the Congress under section 201 of the Budget and
Accounting Act, 1921 (31 U.S.C. 11).
" (k) The Board shall submit to the President, and, at the same time,
to each House of the Congress, any legislative recommendations of
the Board relating to any of its functions under this title.
**§ 1206. Authority and responsibilities of the Special Counsel
"(a) (1) The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the
extent necessary to determine whether there are reasonable grounds to
believe that a prohibited personnel practice has occurred, exists, or is
to be taken.
"(2) If the Special Counsel terminates any investigation under
paragraph (1) of this subsection, the Special Counsel shall prepare
and transmit to any person on whose allegation the investigation was
initiated a written statement notifying the person of the termination
of the investigation and the reasons therefor.
"(3) In addition to authority granted under paragraph (1) of this
subsection, the Special Counsel may, in the absence of an allegation,
conduct an investigation for the purpose of determining Avhether
there are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken.
"(b)(1) In any case involving—
"(A) any disclosure of information by an employee or applicant for employment which the employee or applicant reasonably
believes evidences—
" (i) a violation of any law, rule, or regulation; or
"(ii) mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety;
if the disclosure is not specifically prohibited by law and if the
information is not specifically required by Executive order to be
kept secret in the interest of national defense or the conduct of
foreign affairs; or
"(B) a disclosure by an employee or applicant for employment to the Special Counsel of the Merit Systems Protection
Board, or to the Inspector General of an agency or another
employee designated by the head of the agency to receive such
disclosures of information which the employee or applicant reasonably believes evidences—
" (i) a violation of any law, rule, or regulation; or
"(ii) mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health
or safety;
the identity of tlie employee or applicant may not be disclosed without
the consent of the employee or applicant during any investigation
under subsection (a) of this section or under paragraph (3) of this
subsection, unless the Special Counsel determines that the disclosure
of the identity of the employee or applicant is necessary in order to
carry out the functions of the Special Counsel.
"(2) Whenever the Special Counsel receives information of the
type described in paragraph (1) of this subsection, the Special Counsel shall promptly transmit such information to the appropriate
agency head.

Recommendations, submittal
to President and
Congress.

92 STAT. 1126

;^^
Investigation.
Written report.

" ^

PUBLIC LAW 95-454--0CT. 13, 1978
"(3) (A) In the case of information received by the Special Counsel
under paragraph (1) of this section, if, after such review as the Special Counsel determines practicable (but not later than 15 days after
the receipt of the information), the Special Counsel determines that
there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or mismanagement, gross waste
of funds, abuse of authority, or substantial and specific danger to the
public health or safety, the Special Counsel may, to the extent provided in subparagraph (B) of this paragraph, require the head of
the agency to—
"(i) conduct an investigation of the information and any
related matters transmitted by the Special Counsel to the head
of the agency; and
"(ii) submit a written report setting forth the findings of the
head of the agency within 60 days after the date on which the
information is transmitted to the head of the agency or within
any longer period of time agreed to in writing by the Special
Counsel.
"(B) The Special Counsel may require an agency head to conduct
an investigation and submit a written report under subparagraph (A)
of this paragraph only if the information was transmitted to the Special Counsel by—
"(i) any employee or former employee or applicant for employment in the agency which the information concerns; or
" (ii) any employee who obtained the information in connection
with the performance of the employee's duties and responsibilities.
"(4) Any report required under paragraph (3) (A) of this subsection shall be reviewed and signed by the head of the agency and
shall include—•
"(A) a summary of the information with respect to which the
investigation was initiated;
" (B) a description of the conduct of the investigation;
"(C) a summary of any evidence obtained from the investigation;
"(D) a listing of any violation or apparent violation of any
law, rule, or regulation; and
" ( E ) a description of any corrective action taken or planned as
a result of the investigation, such as—
"(i) changes m agency rules, regulations, or practices;
" (ii) the restoration of any aggrieved employee;
"(iii) disciplinary action against any employee; and
"(iv) referral to the Attorney General of any evidence of
a criminal violation.
" (5) (A) Any such report shall be submitted to the Congress, to the
President, and to the Special Counsel for transmittal to the complainant. Whenever the Special Counsel does not receive the report of the
agency head within the time prescribed in paragraph (3)(A)(ii)
of this subsection, the Special Counsel may transmit a copy of the
information which was transmitted to the agency head to the President and to the Congress together with a statement noting the failure
of the head of the agency to file the required report.
"(B) In any case in which evidence of a criminal violation obtained
by an agency in an investigation under paragraph (3) of this subsection is referred to the Attorney General—
"(i) the report shall not be transmitted to the complainant;
and

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1127

!

"(ii) the agency shall notify the Office of Personnel Management and the Office of Management and Budget of the referral.
"(6) Upon receipt of any report of the head of any agency required
under paragraph (3) (A) (ii) of this subsection, the Special Counsel
shall review the report and determine whether—
"(A) the findings of the head of the agency appear reasonable;
and
"(B) the agency's report under paragraph (3) (A) (ii) of this
subsection contains the information required under paragraph
(4) of this subsection.
"(7) Whenever the Special Counsel transmits any information to
the head of the agency under paragraph (2) of this subsection but
does not require an investigation under paragraph (3) of this subsection, the head of the agency shall, within a reasonable time after
the information was transmitted, inform the Special Counsel, in writing, of what action has been or is to be taken and when such action
will be completed. The Special Counsel shall inform the complainant
of the report of the agency head.,
"(8) Except as specifically authorized under this subsection, the
provisions of this subsection shall not be considered to authorize disclosure of any information by any agency or any person which is—
"(A) specifically prohibited from disclosure by any other provision of law; or
"(B) specifically required by Executive order to be kept secret
in the interest of national defense or the conduct of foreign affairs.
"(9) In any case under subsection (b) (1) (B) of this section involving foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive
order, the Special Counsel shall transmit such information to the
Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.
" ( c ) ( 1 ) ( A ) If, in connection with any investigation under this
section, the Special Counsel determines that there are reasonable
grounds to believe that a prohibited personnel practice has occurred,
exists, or is to be taken which requires corrective action, the Special
Counsel shall report the determination together with any findings or
recommendations to the Board, the agency involved, and to the Office,
and may report the determination, findings, and recommendations to
the President. The Special Counsel may include in the report recommendations as to what corrective action should be taken.
"(B) If, after a reasonable period, the agency has not taken the
corrective action recommended, the Special Counsel may request the
Board to consider the matter. The Board may order such corrective
action as the Board considers appropriate, after opportunity for
comment by the agency concerned and the Office of Personnel
Management.
"(2) (A) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to
believe that a criminal violation by an employee has occurred, the
Special Counsel shall report the determination to the Attorney General and to the head of the agency involved, and shall submit a copy
of the report to the Director of the Office of Personnel Management
and the Director of the Office of Management and Budget.
"(B) In any case in which the Special Counsel determines that
there are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken, the Special Counsel
may proceed with any investigation or proceeding instituted under

Infonnation,
transmittal to
congressional
committees.

92 STAT. 1128

Public list.

Reports.

Certifications.

5 use 7321.
5 use 1501
et seq.

5 use 552.

PUBLIC LAW 95-454—OCT. 13, 1978
this section notwithstanding that the alleged violation has been
reported to the Attorney General.
"(3) If, in connection with any investigation under this section, the
Special Counsel determines that there is reasonable cause to believe
that any violation of any law, rule, or regulation has occurred which
is not referred to in paragraph (1) or (2) of this subsection, the
violation shall be reported to the head of the agency involved. The
Special Counsel shall require, within 30 days of the receipt of the
report by the agency, a certification by the head of the agency which
states—
" (A) that the head of the agency has personally reviewed the
report; and
"(B) what action has been, or is to be, taken, and when the
action will be completed.
" ( d ) The Special Counsel shall maintain and make available to the
public a list of noncriminal matters referred to heads of agencies
under subsections (b) (3) (A) and (c) (3) of this section, together
with—
"(1) reports by the heads of agencies under subsection (b) (3)
(A) of this section, in the case of matters referred under subsection ( b ) ; and
"(2) certifications by heads of agencies under subsection (c)
(3), in the case of matters referred under subsection (c).
The Special Counsel shall take steps to ensure that any such public
list does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be
kept secret in the interest of national defense or the conduct of foreign
affairs.
"(e)(1) In addition to the authority otherwise provided in this
section, the Special Counsel shall, except as provided in paragraph
(2) of this subsection, conduct an investigation of any allegation
concerning—
"(A) political activity prohibited under subchapter I I I of
chapter 73 of this title, relating to political activities by Federal
employees;
"(B) political activity prohibited under chapter 15 of this title,
relating to political activities by certain State and local officers
and employees;
"(C) arbitrary or capricious withholding of information prohibited under section 552 of this title, except that the Special
Counsel shall make no investigation under this subsection of any
withholding of foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law
or by Executive order;
" (D) activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in
personnel decisionmaking; and
" ( E ) involvement by any employee in any prohibited discrimination found by any court or appropriate administrative authority
to have occurred in the course of any personnel action.
"(2) The Special Counsel shall make no investigation of any
allegation of any prohibited activity referred to in paragraph (1) (D)
or (1) (E) of this subsection if the Special Counsel determines that the
allegation may be resolved more appropriately under an administrative appeals procedure.
"(f) During any investigation initiated under this section, no disciplinary action shall be taken against any employee for any alleged

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1129

prohibited activity under investigation or for any related activity
without the approval of the Special Counsel.
"(g) (1) Except as provided in paragraph (2) of this subsection, if
the Special Counsel determines that disciplinary action should be
taken against any employee—
" (A) after any investigation under this section, or
"(B) on the basis of any knowing and willful refusal or failure
by an employee to comply with an order of the Merit Systems
Protection Board,
the Special Counsel shall prepare a written complaint against the
employee containing his determination, together with a statement of
supporting facts, and present the complaint and statement to the
employee and the Merit Systems Protection Board in accordance with
section 1207 of this title.
"(2) 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 paragraph (1) of this subsection, together with any response by the employee, shall be presented
to the President for appropriate action in lieu of being presented
under section 1207 of this title.
,.., ,
"(h) If the Special Counsel believes there is a pattern of prohibited
personnel practices and such practices involve matters which are not
otherwise appealable to the Board under section 7701 of this title, the Post, p. 1138.
Special Counsel may seek corrective action by filing a written complaint with the Board against the agency or employee involved and the
Board shall order such corrective action as the Board determines
necessary.
" (i) The Special Counsel may as a matter of right interv^ene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the
rules of the Board and the Special Counsel shall not have any right of
judicial review in connection with such intervention.
^,^ ,
" (J) (1) The Special Counsel may appoint the legal, administrative,
and support personnel necessary to perform the functions of the Special Counsel.
" (2) Any appointment made under this subsection shall comply with
the provisions of this title, except that such appointment shall not be
subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President (other than approval
required under section 3324 or subchapter V I I I of- chapter 33 of this
title).
5 use 3324.
"(k) The Special Counsel may prescribe regulations relating to the Post, p. 1161.
receipt and investigation of matters under the jurisdiction of the Spe- Regulations.
cial Counsel. Such regulations shall be published in the Federal Publication in
Federal Register.
Eegister.
"(1) The Special Counsel shall not issue any advisory opinion concerning any law, rule, or regulation (other than an advisory opinion
concerning chapter 15 or subchapter I I I of chapter 73 of this title). 5 u s e 1501 et
"(m) The Special Counsel shall submit an annual report to the Con- seq., 7321.
gress on the activities of the Special Counsel, including the number, Report to
types, and disposition of allegations of prohibited personnel practices eongress.
filed with it, investigations conducted by it, and actions initiated by
it before the Board, as well as a description of the recommendations
and reports made by it to other agencies pursuant to this section, and
the actions taken by the agencies as a result of the reports or recom-

92 STAT. 1130

5 use 1207.

5 use 3105.

Final order.

^
5 use 1501 et
seq.
5 use 1208.

'^'

PUBLIC LAW 95-454—OCT. 13, 1978

mendations. The report required by this subsection shall include whatever recommendations for legislation or other action by Congress the
Special Counsel may deem appropriate.
"§ 1207. Hearings and decisions on complaints filed by the Special
Counsel
"(a) Any employee against whom a complaint has been presented
to the Merit Systems Protection Board under section 1206(g) of this
title is entitled to—
"(1) a reasonable time to answer orally and in writing and to
furnish affidavits and other documentary evidence in support of
the answer;
" (2) be represented by an attorney or other representative;
" (3) a hearing before the Board or an administrative law judge
appointed under section 3105 of this title and designated by the
Board;
"(4) have a transcript kept of any hearing under paragraph
(3) of this subsection; and
" (5) a written decision and reasons therefor at the earliest practicable date, including a copy of any final order imposing disciplinary action.
«(b) 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 3^ears, suspension, reprimand,
or an assessment of a civil penalty not to exceed $1,000.
" (c) There may be no administrative appeal from an order of the
Board. An employee subject to a final order imposing disciplinary
action under this section may obtain judicial review of the order in
the United States court of appeals for the judicial circuit in which the
emplovee resides or is employed at the time of the action.
"(d) In the case of any State or local officer or employee under
chapter 15 of this title, tlie Board shall consider the case in accordance with the provisions of such chapter.
Ǥ 1208. Stays of certain personnel actions
"(a) (1) The Special Counsel may request any member of the Merit
Systems Protection Board to order a stay of any personnel action for
15 calendar days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to
be taken, as a result of a prohibited personnel practice.
"(2) Any member of the Board requested by the Special Counsel to
order a stay under paragraph (1) of this subsection shall order such
stay unless the member determines that, under the facts and circumstances involved, such a stay would not be appropriate.
" (3) Unless denied under paragraph (2) of this subsection, any stay
under this subsection shall be granted within 3 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the
request for the stay by the Special Counsel.
"(b) Any member of the Board may, on the request of the Special
Counsel, extend the period of any stay ordered under subsection (a) of
this section for a period of not more than 30 calendar days.
"(c) The Board may extend the period of any stay granted under
subsection (a) of this section for any period which the Board considers
appropriate, but only if the Board concurs in the determination of the
Si>ecial Counsel under such subsection, after an opportunity is provided for oral or written comment by the Special Counsel and the
agency involved.

PUBLIC LAW 95-454—OCT. 13, 1978
"§ 1209. Information
"(a) Notwithstanding any other provision of law or any rule, regulation or policy directive, any member of the Board, or any employee
of the Board designated by the Board, may transmit to the Congress
on the request of any committee or subcommittee thereof, by report,
testimony, or otherwise, information and views on functions, responsibilities, or other matters relating to the Board, without review, clearance, or approval by any other administrative authority.
"(b) The Board shall submit an annual report to the President and
the Congress on its activities, which shall include a description of
significant actions taken by the Board to carry out its functions under
this title. The report shall also review the significant actions of the
Office of Personnel Management, including an analysis of whether the
actions of the Office of Personnel Management are in accord with merit
system principles and free from prohibited personnel practices.".
(b) Any term of office of any member of the Merit Systems Protection Board serving on the effective date of this Act shall continue in
effect until the term would expire under section 1102 of title 5, United
States Code, as in effect immediately before the effective date of this
Act, and upon expiration of the term, appointments to such office shall
be made under sections 1201 and 1202 of title 5, United States Code
(as added by this section).
(c) (1) Section 5314(17) of title 5, United States Code, is amended
b j striking out "Chairman of the United States Civil Service Commission" and inserting in lieu thereof "Chairman of the Merit Systems
Protection Board".
(2) Section 5315 (66) 9f such title is amended by striking out "Members, United States Civil Service Commission" and inserting in lieu
thereof "Members, Merit Systems Protection Board".
(3) Section 5315 of such title is further amended by adding at the
end thereof the following new paragraph:
"(123) Special Counsel of the Merit Systems Protection
Board.".
(4) Paragraph (99) of section 5316 of such title is hereby repealed.
(d) The table of chapters for part I I of title 5, United States Code,
is amended by inserting after the item relating to chapter 11 the following new item:
"12. Merit Systems Protection Board and Special Counsel
1201".

92 STAT. 1131
5 USC 1209.

Report to
President and
Congress,

5 USC 1201 note,

5 USC 5315.

5 USC 5316.

PERFORMANCE APPRAISAL

SEC. 203. (a) Chapter 43 of title 5, United States Code, is amended
to read as follows:
"CHAPTER 43—PERFORMANCE APPRAISAL
"SUBCHAPTER I

GENERAL PROVISIONS

"Sec.

"4301.
"4302.
"4303.
"4304.
"4305.

Definitions.
Establishment of performance appraisal systems.
Actions based on unacceptable performance.
Responsibilities of Office of Personnel Management.
Regulations.

"§4301. Definitions
"For the purpose of this subchapter—
"(1) 'agency'means—
"(A) an Executive agency;

39-194 O—80—pt. 1

75 : QL3

5 USC 4501.

92 STAT. 1132
-M^l >g:y 5

.sK««

•

38 u s e 4101 et

*«?•

5 use 4302.

,^,.. .
•^ ' '"'^

PUBLIC LAW 95-454—OCT. 13, 1978
" ( B ) the Administrative Office of the United States Courts;
and
" ( C ) the Government P r i n t i n g Office;
but does not include—
" ( i ) a Government corporation;
" ( i i ) 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
" ( i i i ) 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
Department of Medicine and Surgery, Veterans' Administration whose pay is fixed under chapter 73 of title 3 8 ;

"(D) an administrative law judge appointed under section 3105 of this title;
" ( E ) an individual in the Senior Executive Service;
" ( F ) an individual appointed by the President; or
"(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; and
"(3) Hmacceptable performance' means performance of an
employee which fails to meet established performance standards
in one or more critical elements of such employee's position.
*'§ 4302. Establishment of performance appraisal systems
"(a) Each agency shall develop one or more performance appraisal
systems which—
"(1) provide for periodic appraisals of job performance of
employees;
"(2) encourage employee participation in establishing performance standards; and
"(3) use the results of performance appraisals as a basis for
training, rewarding, reassigning, promoting, reducing in grade,
retaining, and removing employees;
"(b) Under regulations which the Office of Personnel Management
shall prescribe, each performance appraisal system shall provide for—
"(1) establishing performance standards which will, to the
maximum extent feasible, permit the accurate evaluation of job
performance on the basis of objective criteria (which may include
the extent of courtesy demonstrated to the public) related to the
job in question for each employee or position under the system;
"(2) as soon as practicable, but not later than October 1, 1981,
with respect to initial appraisal periods, and thereafter at the
.
beginning of each following appraisal period, communicating to
each employee the performance standards and the critical elements
of the employee's position;
"(3) evaluating each employee during the appraisal period on
such standards;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1133

"(4) recognizing and rewarding employees whose performance
so warrants;
"(5) assisting employees in improving unacceptable performance; and
" (6) reassigning, reducing in grade, or removing employees who
continue to have unacceptable performance but only after an
opportunity to demonstrate acceptable performance.
"§ 4303. Actions based on unacceptable performance
5 use 4303.
"(a) Subject to the provisions of this section, an agency may reduce Removal or
reduction in
in grade or remove an employee for unacceptable performance.
"(b) (1) An employee whose reduction m grade or removal is pro- grade.
posed under this section is entitled to—
"(A) 30 days' advance written notice of the proposed action Notice.
which identifies—
"(i) specific instances of unacceptable performance by the
employee on which the proposed action is based; and
"(ii) the critical elements of the employee's position
involved in each instance of unacceptable performance;
Representation.
"(B) be represented by an attorney or other representative;
"(C) a reasonable time to answer orally and in writing; and
Written decision.
"(D) a written decision which—
"(i) in the case of a reduction in grade or removal under
this section, specifies the instances of unacceptable performance by the employee on which the reduction in grade or
removal is based, and
"(ii) unless proposed by the head of the agency, has been
concurred in by an employee who is in a higher position than
the employee who proposed the action.
"(2) An agency may, under regulations prescribed by the head of Extension of
such agency, extend the notice period under subsection (b) (1) (A) of notice.
this section for not more than 30 days. An agency may extend the
notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management.
"(c) The decision to retain, reduce in grade, or remove an employee—
"(1) shall be made within 30 days after the date of expiration
of the notice period, and
"(2) in the case of a reduction in grade or removal, may be
based only on those instances of unacceptable performance by the
employee—
"(A) which occurred during the 1-year period ending on
the date of the notice under subsection (b)(1)(A) of this
section in connection with the decision; and
"(B) for which the notice and other requirements of this
section are complied with.
"(d) If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed,
and the employee's performance continues to be acceptable for 1 year
from the date of the advance written notice provided under subsection
(b) (1) (A) of this section, any entry or other notation of the unacceptable performance for which the action was proposed under this
section shall be removed from any agency record relating to the
employee.
"(e) Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under
this section is entitled to appeal the action to the Merit Systems ProtecPost, p. 1138.
tion Board under section 7701 of this title.

92 STAT. 1134

5 use 3321.

V,

,.> ,

5 use 4304.
Technical
assistance.
Review of
performance
appraisal system.

J,.,,,.., ,, ..

5 use 4305.

/

PUBLIC LAW 95-454—OCT. 13, 1978
"(f) This section does not apply to— '
"(1) the reduction to the grade previously held of a supervisor
or manager who has not completed the probationary period under
section 3321 (a) (2) of this title,
"(2) the reduction in grade or removal of an employee in the
competitive service who is serving a probationary or trial period
under an initial appointment or who has not completed 1 year of
current continuous employment under other than a temporary
appointment limited to 1 year or less, or
"(3) the reduction in grade or removal of an employee in the
excepted service who has not completed 1 year of current continuous employment in the same or similar positions.
"§4304. Responsibilities of the Office of Personnel Management
"(a) The Office of Personnel Management shall make technical
assistance available to agencies in the development of performance
appraisal systems.
(b) (1) The Office shall review each performance appraisal system
developed by any agency under this section and determine whether
the performance appraisal system meets the requirements of this
subchapter.
"(2) The Comptroller General shall from time to time review on
a selected basis performance appraisal systems established under this
subchapter to determine the extent to which any such system meets the
requirements of this subchapter and shall periodically report its findings to the Office and to the Congress.
" (3) If the Office determines that a system does not meet the requirements of this subchapter (including regulations prescribed under
section 4305), the Office shall direct the agency to implement an appropriate system or to correct operations under the system, and any such
agency shall take any action so required.
Ǥ 4305. Regulations
"The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter.".
(b) The item relating to chapter 43 in the chapter analysis for part
Til of title 5, United States Code, is amended by striking out "Performance Rating" and inserting in lieu thereof "Performance
Appraisal".
ADVERSE ACTIONS

SEC. 204. (a) Chapter 75 of title 5, United States Code, is amended
by striking out subchapters I, II, and I I I and inserting in lieu thereof
the following:
"SUBCHAPTER I—SUSPENSION FOR 14 DAYS OR LESS
5 use 7501.

Mii

Ǥ 7501. Definitions
"For the purpose of this subchapter—
"(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
"(2) 'suspension' means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.
>'} s»'-,.;ti .i.i« n i

PUBLIC LAW 95-454-OCT. 13, 1978

92 STAT. 1135

Ǥ 7502. Actions covered
"This subchapter applies to a suspension for 14 days or less, but
does not apply to a suspension under section 7521 or 7532 of this title
or any action initiated under section 1206 of this title.
^
_
"§ 7503. Cause and procedure
"(a) Under regulations prescribed by the Office of Personnel Management, an employee may be suspended for 14 days or less for such
cause as will promote the efficiency of the service (including discourteous conduct to the public confirmed by an immediate supervisor's
report of four such instances within any one-year period or any other
pattern of discourteous conduct).
"(b) An employee against whom a suspension for 14 days or less
is proposed is entitled to—
"(1) an advance written notice stating the specific reasons for
the proposed action;
"(2) a reasonable time to answer orally and in writing and to
furnish affidavits and other documentary evidence in support of
the answer:
"(3) be represented by an attorney or other representative; and
"(4) a written decision and the specific reasons therefor at the
earliest practicable date.
"(c) Copies of the notice of proposed action, the answer of the
employee if written, a summary thereof if made orally, the notice of
decision and reasons therefor, and any order effecting the suspension,
together with any supporting material, shall be maintained by the
agency and shall be furnished to the Merit Systems Protection Board
upon its request and to the employee affected upon the employee's
request.
"§7504. Regulations
"The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter.

5 USC 7502.
Post, p. 1137.
5 USC 7532.
Ante, p. 1125.

Notice,

Representation.
Availability of
information.

5 USC 7504.

"SUBCHAPTER II—REMOVAL, SUSPENSION FOR MORE
THAN 14 DAYS, REDUCTION IN GRADE OR PAY, OR
FURLOUGH FOR 30 DAYS OR LESS
"§7511. Definitions; application
" (a) For the purpose of this subchapter—
"(1) 'employee'means—
" ( A ) 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 under other than a temporary appointment
limited to 1 year or less; and
"(B) a preference eligible in an Executive agency in the
excepted service, and a preference eligible in the United
States Postal Service or the Postal Rate Commission, who has
completed 1 year of current continuous service in the same or
similar positions;
" (2) 'suspension' has the meaning as set forth in section 7501 (2)
of this title;
"(3) 'grade' means a level of classification under a position
classification system;

5 USC 7511.

AnU, p. 1134.

92 STAT. 1136
tioe'. l>c 3 -c ;

PUBLIC LAW 95-454—OCT. 13, 1978

" (4) 'pay' means the rate of basic pay fixed by law or administrative action for the position held by an employee; and
"(5) 'furlough' means the placing of an employee in a temporary status without duties and pay because of lack of work or
tii.;J ..;...
funds or other nondisciplinary reasons.
"(b) This subchapter does not apply to an employee—
"(1) whose appointment is made by and with the advice and
consent of the Senate;
" (2) whose position has been determined to be of a confidential,
policy-determining, policy-making or policy-advocating cliar.
* acter by—
"(A) the Office of Personnel Management for a position
^g.)
that it has excepted from the competitive service; or
"(B) the President or the head of an agency for a position
. - ' T - k j"*
which is excepted from the competitive service by statute.
"(c) The Office may provide for the application of this subchapter
to any position or group of positions excepted from the competitive
service by regulation of the Office.
5 use 7512.
"§ 7512. Actions covered
"This subchapter applies to—
"(1) a removal;
" (2) a suspension for more than 14 days;
•'y*
"(3) a reduction in grade;
'•'"'•-'•'•
" (4) a reduction in pay; and
" (5) a furlough of 30 days or less;
but does not apply to—
5 u s e 7532.
"(A) a suspension or removal under section 7532 of this title,
5 u s e 3502.
"(B) a reduction-in-force action under section 3502 of this title,
"(C) the reduction in grade of a supervisor or manager who
has not completed the probationary period under section 3321(a)
Post, p. 1146.
(2) of this title if such reduction is to the grade held immediately
before becoming such a supervisor or manager,
Ante, p. 1133.
"(D) a reduction in grade or removal under section 4303 of this
title, or
Ante, p. 1125,
" ( E ) an action initiated under section 1206 or 7521 of this title.
Post, p. 1137.
"§7513w Cause and procedure
5 u s e 7513.
"(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 such cause as will promote the efficiency
of the service.
"(b) An employee against whom an action is proposed is entitled
to—
Notice.
"(1) at least 30 days' advance written notice, unless there is
reasonable cause to believe the employee has committed a crime
for which a sentence of imprisonment may be imposed, stating the
specific reasons for the proposed action;
" (2) a reasonable time, but not less than 7 days, to answer orally
and in writing and to furnish affidavits and other documentary
evidence in support of the answer;
Representation.
" (3) be represented by an attorney or other representative; and
"(4) a written decision and the specific reasons therefor at the
;:
earliest practicable date.
Hearing.
"(c) An agency may provide, by regulation, for a hearing which
may be in lieu of or in addition to the opportunity to answer provided
under subsection (b) (2) of this section.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1137

"(d) An employee against whom an action is taken under this section IS entitled to appeal to the Merit Systems Protection Board under
section 7701 of this title.
^
"(e) Copies of the notice of proposed action, the answer of the
employee when written, a summary thereof when made orally, the
notice of decision and reasons therefor, and any order effecting an
action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the
Board upon its request and to the employee affected upon the
employee's request.
"§ 7514. Regulations
"The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter, except as it concerns any
matter with respect to which the Merit Systems Protection Board may
prescribe regulations.".

Post, p. 1138.
Availability of
information,

5 USC 7514.
' i.--

"SUBCHAPTER III—ADMINISTRATIVE LAW JUDGES
"§ 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 1206 of this title.".
(b) So much of the analysis for chapter 75 of title 5, United States
Code, as precedes the items relating to subchapter IV is amended to
read as follows:
,

5 USC 7521.
5 USC 3105.
.^Xi '

5 USC 7532.
5 USC 3502.
Ante, p. 1125.

.iMl. q -arK

"CHAPTER 75—ADVERSE ACTIONS
"Sec.

"7501.
"7502.
"7503.
"7504.

"SUBCHAPTER I—SUSPENSION OF 14 DAYS OB LESS
Definitions.
Actions covered.
Cause and procedure.
Regulations.

•

"SUBCHAPTER II—REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS,
REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
"7511.
"7512.
"7513.
"7514.

Definitions; application.
Actions covered.
Cause and procedure.
Regulations.

i
s

M'l'

92 STAT. 1138

PUBLIC LAW 95-454—OCT. 13, 1978
"SUBCHAPTER III—ADMINISTRATIVE LAW JUDGES

-

"7521. Actions against administrative law judges.".
APPEALS
SEC. 205. Chapter 77 of title 5, United States Code, is amended to
read as follows:

"CHAPTER 77--APPEALS

5 u s e 7701.

Hearing.
Representation.

5 u s e 3105.

Copies of
decisions.

Ante, p. 1133.

Ante, p. 1114.

"Sec.
"7701. Appellate procedures.
"7702. Actions involving discrimination.
"7703. Judicial review of decisions of the Merit Systems Protection Board.
"§7701. Appellate procedures
" ( a ) A n employee, or applicant for employment, may submit an
appeal to the Merit Systems Protection Board from any action which
is appealable to the B o a r d under any law, rule, or regulation. A n
appellant shall have the right—
" (1) to a hearing for which a transcript will be k e p t ; and
" ( 2 ) to be represented by an attorney^ or other representative.
Appeals shall be processed in accordance with regulations prescribed
by t h e Board.
" ( b ) The B o a r d may hear any case appealed t o it or may refer the
case to an administrative law judge appointed under section 3105 of
this title or other employee of the Board d e s i ^ a t e d by the Board to
hear such cases, except t h a t in any case involvmg a removal from the
service, the case shall be heard by the Board, an employee experienced
in hearing appeals, or an administrative law judge. The Board, administrative law ]udge, or other employee (as the case may be) shall make
a decision after receipt of the written representations of the parties t o
the appeal and after opportunity for a hearing under subsection (a)
(1) of this section. A copy of the decision shall be furnished to each
p a r t y to the appeal and to the Office of Personnel Management.
" ( c ) (1) Subject to p a r a g r a p h (2) of this subsection, the decision of
the agency shall be sustained under subsection (b) only if the agency's
decision—
" ( A ) in the case of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or
" ( B ) in any other case, is supported by a preponderance of the
evidence.
" (2) Notwithstanding p a r a g r a p h ( 1 ) , the agency's decision may not
be sustained under subsection (b) of this section if the employee or
applicant for employment—
" ( A ) shows harmful error in the application of the agency's
procedures in arriving at such decision;
" ( B ) shows t h a t the decision was based on any prohibited personnel practice described in section 2302(b) of this t i t l e ; or
" ( C ) shows that the decision was not in accordance with law.
" ( d ) (1) I n any case in which—
" ( A ) the interpretation or application of any civil service law,
rule, or regulation, under the jurisdiction of the Office of Personnel ^lanagement is at issue in any proceeding under this section;
and
" ( B ) the Director of the Office of Personnel Management is of
the opinion t h a t an erroneous decision would have a substantial
impact on any civil service law, rule, or regulation under the jurisdiction of the Office;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1139

the Director may as a matter of right intervene or otherwise participate in that proceeding before the Board. If the Director exercises his
right to participate in a proceeding before the Board, he shall do so
as early in the proceeding as practicable. Nothing in this title shall be
construed to permit the Office to interfere with the independent decisionmaking of the Merit Systems Protection Board.
"(2) The Board shall promptly notify the Director whenever the Notification.
interpretation of any civil service law, rule, or regulation under the
jurisdiction of the Office is at issue in any proceeding under this section.
" (e) (1) Except as provided in section 7702 of this title, any decision Decisions.
under subsection (b) of this section shall be final unless—
"(A) a party to the appeal or the Director petitions the Board
for review within 30 days after the receipt of the decision; or
"(B) the Board reopens and reconsiders a case on its own
motion.
The Board, for good cause shown, may extend the 30-day period
referred to in subparagraph (A) of this paragraph. One member of
the Board may grant a petition or otherwise direct that a decision be
reviewed by the full Board. The preceding sentence shall not apply
if, by law, a decision of an administration law judge is required to be
acted upon by the Board.
"(2) The Director may petition the Board for a review under para- Petition for
graph (1) of this subsection onlj^ if the Director is of the ©pinion that review,
the decision is erroneous and will have a substantial impact on any
civil service law, rule, or regulation under the jurisdiction of the
Office.
m-'Cfiih.^ss^h
"(f) The Board, or an administrative law judge or other employee
of the Board designated to hear a case, may—
;,,- ,:.
"(1) consolidate appeals filed by two or more appellants, or
"(2) join two or more appeals filed by the same appellant and
hear and decide them concurrently,
if the deciding official or officials hearing the cases are of the opinion
that the action could result in the appeals' being processed more
expeditiously and would not adversely aifect any party,
"(g)(1) Except as provided in paragraph (2) of this subsection,
the Board, or an administrative law judge or other employee of the
Board designated to hear a case, may require payment by the agency
involved of reasonable attorney fees incurred by an employee or appli^/ \
cant for employment if the employee or applicant is the prevailing
/'.-— iKi'
party and the Board, administrative law judge, or other employee,
as the case may be, determines that payment by the agency is warranted
in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the
agency's action was clearly without merit.
"(2") If an employee or applicant for employment is the prevailing
party and the decision is based on a finding of discrimination prohibited under section 2302(b) (1) of this title, the payment of attorney ^nte, p. 1114
fees shall be in accordance with the standards prescribed under section
706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e^5(k)).
"(h) The Board may, by regulation, provide for one or more alternative methods for settling matters subject to the appellate jurisdiction of the Board which shall be applicable at the election of an
applicant for employment or of an employee who is not in a unit for
Avhich a labor organization is accorded exclusive recognition, and shall
be in lieu of other procedures provided for under this section. A
decision under such a method shall be final, unless the Board reopens

92 STAT. 1140

.i(IIS;!!
.iu
Report to
Congress.

Regulations.

5 use 7702.

42 use
2000e-16.
.,

fijrj , ,,

V

PUBLIC LAW 95-454—OCT. 13, 1978
and reconsiders a case at the request of the Office of Personnel Management under subsection (d) of this section.
" ( i ) ( l ) Upon the submission of any appeal to the Board under
this section, the Board, through reference to such categories of cases,
or other means, as it determines appropriate, shall establish and
announce publicly the date by which it intends to complete action on
the matter. Such date shall assure expeditious consideration of the
appeal, consistent with the interests of fairness and other priorities
of the Board. If the Board fails to complete action on the appeal by
the announced date, and the expected delay will exceed 30 days, the
Board shall publicly announce the new date by which it intends to
complete action on the appeal.
"(2) Not later than March 1 of each year, the Board shall submit
to the Congress a report describing the number of appeals submitted
to it during the preceding calendar year, the number of appeals on
which it completed action durina: that year, and the number of
instances during that year in which it failed to conclude a proceeding
by the date originally announced, together with an explanation of the
reasons therefor.
"(3) The Board shall by rule indicate any other category of significant Board action which the Board determines should be subject
to the provisions of this subsection.
"(4) It shall be the duty of the Board, an administrative law judge,
or employee designated by the Board to hear any proceeding under
this section to expedite to the extent practicable that proceeding.
"(j) The Board may prescribe regulations to carry out the purpose
of this section.
"§ 7702. Actions involving discrimination
"(a) (1) Notwithstanding any other provision of law, and except as
provided in paragraph (2) of this subsection, in the case of any
employee or applicant for employment who—
"(A) has been effected by an action which the employee or
applicant may appeal to the Merit Systems Protection Board, and
"(B) alleges that a basis for the action was discrimination prohibited by—
"(i) section 717 of the Civil Eights Act of 1964 (42 U.S.C.
2000e-16c),
" (ii) section 6 (d) of the Fair Labor Standards Act of 1938
(29 U.S.C. 206(d)),
"(iii) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791),
"(iv) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631,633a), or
"(v) any rule, regulation, or policy directive prescribed
under any provision of law described in clauses (i) through
(iv) of this subparagraph,
the Board shall, within 120 days of the filing of the appeal, decide
both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under section 7701 of this
title and this section.
"(2) In any matter before an agencj- which involves—
"(A) any action described in paragraph (1) (A) of this subsection; and
"(B) any issue of discrimination prohibited under any provision of law described in paragraph (1) (B) of this subsection;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1141

the agency shall resolve such matter within 120 days. The decision
of the agency in any such matter shall be a judicially reviewable action
unless the employee appeals the matter to the Board under paragraph
(1^ of this subsection.
"(3) Any decision of the Board under paragi-aph (1) of this subsection shall be a judicially reviewable action as of—
"(A) the date of issuance of the decision if the employee or
applicant does not file a petition with the Equal Employment
Opportunity Commission under subsection (b) (1) of this section, or
"(B) the date the Commission determines not to consider the
decision under subsection (b) (2) of this section.
"(b) (1) An employee or applicant may, within 30 days after notice
of the decision of the Board under subsection (a) (1) of this section,
petition the Commission to consider the decision.
" (2) The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of
the Commission not to consider the decision may not be used as evidence
with respect to any issue of discrimination in any judicial proceeding
concerning that issue.
"(3) If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the Board
and, on the basis of the evidentiary record before the Board, as supplemented under paragraph (4) of this subsection, either—
"(A) concur in the decision of the Board; or
"(B) issue in writing another decision which differs from the
decision of the Board to the extent that the Commission finds that,
as a matter of law—
" (i) the decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or
policy directive referred to in subsection ( a ) ( 1 ) ( B ) of this
section, or
"(ii) the decision involving such provision is not supported
by the evidence in the record as a whole.
" (4) In considering any decision of the Board under this subsection,
the Commission may refer the case to the Board, or provide on its own,
for the taking (within such period as permits the Commission to make
a decision within the 60-day period j)rescribed under this subsection)
of additional evidence to tne extent it considers.necessary to supplement the record.
" (5) (A) If the Commission concurs pursuant to paragraph (3) (A)
of this subsection in the decision of the Board, the decision of the
Board shall be a judicially reviewable action.
" (B) If the Commission issues any decision under paragraph (3) (B)
of this subsection, the Commission shall immediately refer the matter
to the Board.
"(c) Within 30 days after receipt by the Board of the decision of
the Commission under subsection (b) (5) (B) of this section, the Board
shall consider the decision and—
"(1) concur and adopt in whole the decision of the Commission;
or
"(2) to the extent that the Board finds that, as a matter of law.
(A) the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation
or policy directive, or (B) the Commission decision involving

^^ ^ ,
*^- ; "^

^.

92 STAT. 1142

PUBLIC LAW 95-454—OCT. 13, 1978

such provision is not supported by the evidence in the record as a
whole—
i
" (i) reaffirm the initial decision of the Board; or
"(ii) reaffirm the initial decision of the Board with such
revisions as it determines appropriate.
If the Board takes the action provided under paragraph (1), the
decision of the Board shall be a judicially reviewable action.
"(d)(1) If the Board takes any action under subsection (c)(2)
of this section, the matter shall be immediately certified to a special
panel described in paragraph (6) of this subsection. Upon certification,
the Board shall, within 5 days (excluding Saturdays, Sundays, and
holidays), transmit to the special panel the administrative record in
the proceeding, including—
" (A) the factual record compiled under this section,
"(B) the decisions issued by the Board and the Commission
under this section, and
;.
"(C) any transcript of oral arguments made, or legal briefs
'
filed,
before the Board or the Commission.
"(2) (A) The special panel shall, within 45 days after a matter has
been certified to it, review the administrative record transmitted to it
and, on the basis of the record, decide the issues in dispute and issue
a final decision which shall be a judicially reviewable action.
"(B) The special panel shall give due deference to the respective
expertise of the Board and Commission in making its decision.
"(3) The special panel shall refer its decision under paragraph (2)
of this subsection to the Board and the Board shall order any agency to
take any action appropriate to carry out the decision.
"(4) The special panel shall permit the employee or applicant who
brought the complaint and the employing agency to appear before the
panel to present oral arguments and to present written arguments with
respect to the matter.
"(5) Upon application by the employee or applicant, the Commission may issue such interim relief as it determines aj)propriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this
subsection, except that the Commission may not stay, or order any
agency to leview on an interim basis, the action referred to in subsection (a) (1) of this section.
Special panel.
"(6) (A) Each time the Board takes any action under subsection
(c) (2) of this section, a special panel shall be convened which shall
consist of—
"(i) an individual appointed by the President, by and with the
advice and consent of the Senate, to serve for a term of 6 years as
chairman of the special panel each time it is convened;
"(ii) one member of the Board designated by the Chairman of
the Board each time a panel is convenecf; and
"(iii) one member of the Commission designated by the Chairman of the Commission each time a panel is convened.
The chairman of the special panel may be removed by the President
only for inefficiency, neglect of diity, or malfeasance in office.
"(B) The chairman is entitled to pay at a rate equal to the maxi5 use 5332 note, mum annual rate of basic pay payable under the General Schedule
for each day he is engaged in the performance of official business on
the work of the special panel.
Administrative
"{C) The Board and the Commission shall provide such adminisassistance.
trative assistance to the special panel as may be necessary and, to the
extent practicable, shall equally divide the costs of providing the
administrative assistance.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1143

''(e)(1) Notwithstanding any other provision of laAv, if at any time
after—
" (A) the 120th day following the filing of any matter described
in subsection (a) (2) of this section with an agency, there is no
judicially reviewable action under this section or an appeal mider
paragraph (2) of this subsection;
"(B) the 120th day following the filing of an appeal with the
Board under subsection (a) (1) of this section, there is no judicially reviewable action (unless such action is not as the result
of the filing of a petition by the employee under subsection (b)
(1) of this section); or
•'*'
"(C) the 180th day following the filing of a petition with the
Equal Employment Opportunity Commission under subsection
(b)(1) of this title, there is no final agency action under subsection
(b), (c), or (d) of this section;
an employee shall be entitled to file a civil action to the same extent
and in the same manner as provided in section 717(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age
. ,
Discrimination in Employment Act of 1967 (29 U.S.C. 633a (c)), or
'"''^'''
section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C.
216(d)).
"(2) If, at any time after the 120th day following the filing of any '
matter described in subsection (a) (2) of this section with an agency,
there is no judicially reviewable action, the employee may appeal the
matter to the Board under subsection (a) (1) of this section.
" (3) Mothing in this section shall be construed to affect the right to
trial de novo under any provision of law described in subsection (a)
(1) of this section after a judicially reviewable action, including the
decision of an agency under subsection (a) (2) of this section.
"(f) In any case m which an employee is required to file any action,
appeal, or petition under this section and the employee timely files the
action, appeal, or petition with an agency other than the agency with
which the action, appeal, or petition is to be filed, the employee shall
be treated as having timely filed the action, appeal, or petition as of
the date it is filed with the proper agency.
"§ 7703. Judicial review of decisions of the Merit Systems Protec- 5 USC 7703.
tion Board
"(a)(1) Any employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the Merit Systems
Protection Board may obtain judicial review of the order or decision.
"(2) The Board shall be the named respondent in any proceeding
brought pursuant to this subsection, unless the employee or applicant
-li', • . "••for employment seeks review of a final order or decision issued by the
Board under section 7701. In review^ of a final order or decision issued
under section 7701, the agency responsible for taking the action
appealed to the Board shall be the named respondent.
' (b) (1) Except as provided in paragraph (2) of this subsection, a
petition to review a final order or final decision of the Board shall
be filed in the Court of Claims or a United States court of appeals as
provided in chapters 91 and 158, respectively, of title 28. Notwith- 28 USC 1491 et
standing any other provision of law, any petition for review must be *^f > 2341 et scq.
filed within 30 days after the date the petitioner received notice of
the final order or decision of the Board.
"(2) Cases of discrimination subject to the provisions of section
7702 of this title shall be filed under section 717(c) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a (c)), and

92 STAT. 1144

Petition,

PUBLIC LAW 95-454—OCT. 13, 1978

section 16(b) of the Fair Labor Standards Act of 1938, as amended
(29 U.S.C. 216(b)), as applicable. Notwithstanding' any other provision of law, any such case filed under any such section must be filed
within 30 days after the date the individual filing the case received
notice of the judicially reviewable action under such section 7702.
"(c) In any case filed in the United States Court of Claims or a
United States court of appeals, the court shall review the record and
hold unlawful and set aside any agency action, findings, or conclusions
found to be—
"(1) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
"(2) obtained without procedures required by law, rule, or
regulation having been followed; or
"(3) unsupported by substantial evidence;
except that in the ca,se of discrimination brought under any section
referred to in subsection (b) (2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by
the reviewing court.
"(d) The Director of the Office of Personnel Management may
obtain review of any final order or decision of the Board by filing a
petition for judicial revieyr in the United States Court of Appeals
for tJie District of Columbia if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter
before the Board, the Director may not petition for review of a Board
decision under this section unless the Director first petitions the Board
for a reconsideration of its decision, and such petition is denied. In
addition to the named respondent, the Board and all other parties to
the proceedings before the Board shall have the right to appear in the
proceeding before the Court of Appeals. The granting of the petition
for judicial review shall be at the discretion of the Court of Appeals.".
TECHNICAL AND CONFORMING

Ante, p. 1143.

AMENDMENTS

SEC. 206. Section 2342 of title 28, United States Code, is amended—
(1) by striking out "and" at the end of paragraph (4),
(2) by striking out the period at the end of paragraph (5) and
inserting in lieu thereof " ; and", and
(3) by adding at the end thereof the following new paragraph:
"(6) all final orders of the Merit Systems Protection Board
except as provided for in section 7703 (b) of title 5.".
TITLE III—STAFFING
VOLUNTEER SERVICE

5 use 3111.
"Student."

SEC. 301. (a) Chapter 31 of title 5, United States Code, is amended
by adding at the end thereof the following new section:
"§ 3111. Acceptance of volunteer service
"(a) For the purpose of this section, 'student' means an individual
who is enrolled, not less than half-time, in a high school, trade school,
technical or vocational institute, junior college, college, university, or
comparable recognized educational institution. An individual who is
a student is deemed not to have ceased to be a student during an interim

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1145

between school years if the interim is not more t h a n 5 months and if
such individual shows to the satisfaction of the Office of Personnel
Management t h a t the individual has a bona fide intention of continuing to pursue a course of study or t r a i n i n g in the same or different
educational institution d u r i n g the school semester (or other period into
which the school vear is divided) immediatelv after the interim.
" ( b ) Notwithstanding section 3679(b) of fhe Revised Statutes (31
U.S.C. 6 6 5 ( b ) ) , the head of an agency may accept, subject to regulations issued by the Office, voluntary service for the United States if
the service—
" ( 1 ) is performed by a student, with t h e permission of the
institution at which the student is enrolled, as p a r t of an agency
p r o g r a m established for the purpose of providing educational
experiences for the student;
" ( 2 ) is to be uncompensated; and
" (3) will not be used to displace any employee.
" ( c ) A n y student who provides voluntary service under subsection
(b) of this section shall not be considered a Federal employee for any
purpose other than for purposes of chapter 81 of this title (relating to 5 USC 8101
compensation for injury) and sections 2671 t h r o u g h 2680 of title 28 et seq.
(relating to t o r t claims).".
(b) The analysis of chapter 31 of title 5, United States Code, is
amended by adding at the end thereof the following new i t e m :
"3111. Acceptance of volunteer service.".
INTERPRETING ASSISTANTS FOR DEAF EMPLOYEES

SEC. 302. (a) Section 3102 of title 5, United States Code, is
amended—
(1) by redesignating p a r a g r a p h (4) of subsection (a) as parag r a p h ( 5 ) , by striking out " a n d " at the end of p a r a g r a p h ( 3 ) ,
and inserting after p a r a g r a p h f3) the following new p a r a g r a p h
" ( 4 ) 'deaf employee' means an individual employed by an
agency who, in accordance with regulations prescribed by the head
of the agency, establishes to the satisfaction of the appropriate
authority of the agency concerned t h a t the employee has a hearing impairment, either permanent or temporary, so severe or disabling that the employment of an interpreting assistant or assistants for the employee is necessary or desirable to enable such
employee to perform the work of the employee; and " ;
(2) in subsection ( b ) , by inserting "and interpreting assistant
or assistants for a deaf employee" after "or assistants for a blind
employee", and amending the last sentence to read as follows: " A
reading assistant or an interpreting assistant, other than the one
employed or assigned under subsection (d) of this section, may
receive pay for services performed by the assistant by and from
the blind or deaf employee or a nonprofit organization, without
I'egard to section 209 of title 18.";
(3) in subsection ( c ) , by inserting "or deaf" after "blind"; and
(4) by inserting at the end thereof the following new
subsection:
" (d) The head of each agency may also employ or assign, subject to
section 209 of title 18 and to the provisions of this title governing
appointment and chapter 51 and subchapter I I I of chapter 53 of this
title governing classification and pay, such reading assistants for blind
employees and such interpreting assistants for deaf employees as may
be necessary to enable such employees to perform their work.".

"Deaf
employee."

'

5 USC 5101 et
*«?•' ^331.

92 STAT. 1146

PUBLIC LAW 95-454—OCT. 13, 1978
(b) (1) The analysis of chapter 31 of title 5, United States Code, is
amended by striking out the item relating to section 3102 and inserting
in lieu thereof the following:
"3102. Employment of reading assistants for blind employees and interpreting
assistants for deaf employees.".
(2) The heading for section 3102 of title 5, United States Code, is
amended to read as follows:
"§3102. Employment of reading assistants for blind employees
and interpreting assistants for deaf employees".
(c) Section 410(b) (1) of title 39, United States Code, is amended
by inserting after "open meetings)" a comma and "3102 (employment
of reading assistants for blind employees and interpreting assistants
for deaf employees),".
PROBATIONARY PERIOD

'

SFX. 303. (a) Section 3321 of title 5, United States Code, is amended
to read as follows:
"§3321. Competitive service; probationary period
"(a) The President may take such action, including the issuance of
I'ules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation—
"(1) before an appointment in the competitive service becomes
final; and
"(2) before initial appointment as a supervisor or manager
becomes final.
"(b) An individual—
"(1) who has been transferred, assigned, or promoted from a
position to a supervisory or managerial position, and
"(2) who does not satisfactorily complete the probationary
period under subsection (a) (2) of this section,
shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted.
Nothing in this section prohibits an agency from taking an action
against an individual serving a probationary period under subsection
(a)(2) of this section for cause unrelated to supervisory or managerial
performance.
"(c) Subsections (a) and (b) of this section shall not apply with
respect to appointments in the Senior Executive Service.".
(b) The item in the analysis for chapter 33 of title 5, United States
Code, is amended to read as follows:
"3321. Competitive service; probationary period.".
TRAINING

5 use 5595.
'

SEC. 304. Section 4103 of title 5, United States Code, is amended by
inserting " ( a ) " before "In order to increase" and by adding at the end
thereof the following new subsection:
"(b)(1) Notwithstanding any other provision of this chapter, an
agency may train any employee of the agency to prepare the employee
for placement in another agency if the head of the agency determines
that the employee will otherwise be separated under conditions which
would entitle the employee to severance pay under section 5595 of this
title.
"(2) Before undertaking any training under this subsection, the
head of the agency shall obtain verification from the Office of Person-

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1147

nel Management that there exists a reasonable expectation of placement in another agency.
" (3) i n selecting an employee for training under this subsection, the
head of the agency shall consider—
"(A) the extent to which the current skills, knowledge, and
abilities of the employee may be utilized in the new position;
"(B) the employee's capability to learn skills and acquire
knowledge and abilities needed in the new position; and
"(C) the benefits to the Government which would result from
retaining the employee in the Federal service.",
TRAVEL, TRANSPORTATION, AND SUBSISTENCE

SEC. 305. Section 5723(d) of title 5, United States Code, is amended
by striking out "not".
RETIREMENT

SEC. 306. Section 8336(d)(2) of title 5, United States Code, is
amended to read as follows:
"(2) voluntarily, during a period when the agency in which
the employee is serving is undergoing a major reorganization, a
major reduction in force, or a major transfer of function, as determined by the Office of Personnel Management, and the employee
is serving in a geographic area designated by the Office;".
VETERANS AND PREFERENCE ELIGIBLES

SEC. 307. (a) Effective beginning October 1, 1980, section 2108 of
title 5, United States Code, is amended—
(1) by striking out "and" at the end of paragraph ( 2 ) ;
(2) by inserting in paragraph (3) after "means" the following:
", except as provided in paragraph (4) of this section";
(3) by striking out the period at the end of paragraph (3)
and inserting in lieu thereof a semicolon; and
(4) by adding at the end thereof the following new paragraphs:
"(4) except for the purposes of chapters 43 and 75 of this title,
'preference eligible' does not include a retired member of the
armed forces unless.—
"(A) the individual is a disabled veteran; or
"(B) the individual retired below the rank of major or its
equivalent; and
"(5) 'retired member of the armed forces' means a member or
former member of the armed forces who is entitled, under statute,
to retired, retirement, or retainer pay on account of service as a
member.".
(b)(1) Chapter 31 of title 5, United States Code, is amended by
adding at the end thereof the following new section:
**§ 3112. Disabled veterans; noncompetitive appointment
"Under such regulations as the Office of Personnel Management
shall prescribe, an agency may make a noncompetitive appointment
leading to conversion to career or career-conditional employment of a
disabled veteran who has a compensable service-connected disability
of 30 percent or more."
(2) The Director of the Office of Personnel Management shall
include in the reports required by section 2014(d) of title 38, United
States Code, the same type of information regarding the use of the

39-194 O—80—pt. 1

76 : QL3

Ante, p. 1131.
Post, p. 1167.
Ante, p. 1134.

"Retired member
of the Armed
Forces."

5 u s e 3112.

38 u s e 2014
note.

92 STAT. 1148

5 u s e 2108.

j^
- '

'^^^

L! ;<

•• ! '

|.|:i

PUBLIC LAW 95-454—OCT. 13, 1978
authority provided in section 3112 of title 5, United States Code (as
added by p a r a g r a p h (1) of this subsection), as is required by such
section 2014 with i-espect to the use of the authority to make veterans
readjustment appointments.
(3) The analysis of chapter 31 of title 5, United States Code, is
amended by adding at the end thereof the following new i t e m :
"3112. Disabled veterans; noncompetitive appointment.".
(c) Section 3312 of title 5, United States Code, is amended—
(1) by inserting " ( a ) " before " I n " ; and
(2) by adding at the end thereof the following new subsection:
" ( b ) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3) (C) of this
title who has a compensable service-connected disability of 30 percent
or more is not able to fulfill the physical requirements of the position,
the examining agency shall notify the Office of the determination and,
at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the r i g h t t o respond,
within 15 days of the date of the notification, to the Office. The Office
shall require a demonstration by the appointing authority t h a t the
notification was timely sent to the preference eligible's last known
address and shall, before the selection of any other person for the position, make a final determination on the physical ability of Ihe preference eligible to perform the duties of the position, t a k i n g into account
any additional information provided in any such response. W h e n t h e
Office has completed its review of the proposed disqualification on the
basis of physical disability, it shall send its findings to the appointing
authority and the preference eligible. The appointing authority shall
comply with the findings of the Office. The functions of the Office
under this subsection mav not be delegated.".
(d) Section 3318(b) of title 5, United States Code, is amended to
read as follows:
" ( b ) (1) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not
a preference eligible, such authority shall file written reasons with the
Office for passing over the preference eligible. The Office shall make
the reasons presented by the appointing authority p a r t of the record of
the preference eligible and may require the submission of more detailed
information from the appointing authority in support of the passing
over of the preference eligible. The Office shall determine the sufficiency
or insufficiency of the reasons submitted by the appointing authority,
taking into account any response received irom the preference eligible
under p a r a g r a p h (2) of this subsection. When the Office has completed
its review of the proposed passover, it shall send its findings to t h e
appointing authority and to the preference eligible. The appointing
authority shall comply with the findings of the Office.
" (2) I n the case of a preference eligible described in section 2108 (3)
(C) of this title who has a compensable service-connected disability of
30 percent or more, the appointing authority shall at the same time it
notifies the Office under p a r a g r a p h (1) of this STibsection, notify t h e
preference eligible of the proposed passoA^er, of t h e reasons therefor,
and of his right to respond to such reasons to the Office within 15 days
of the date of such notification. T h e Office shall, before completing its
review under p a r a g r a p h (1) of this subsection, require a demonstration by the appointing authoritv that the passover notification was
timely sent t« the preference eligible's last known address.

PUBLIC LAW 95-454—OCT. 13, 1978
"(3) A preference eligible not described in paragraph (2) of this
subsection, or his representative, shall be entitled, on request, to a copy
of—
" (A) the reasons submitted by the appointing authority in support of the proposed passover, and
"(B) the findings of the Office.
"(4) In the case of a preference eligible described in paragraph (2)
of this subsection, the functions of the Office under this subsection may
not be delegated.".
(e) Section 3502 of title 5, United States Code, is amended by striking out subsection (b) and inserting in lieu thereof the followmg new
subsections:
"(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.".
(f) Section 3503 of title 5, United States Code, is amended by striking, out in subsection (a) and (b) "each preference eligible employee"
and inserting in lieu thereof "each competing employee" both places
it appears.
(g) Section 3504 of title 5, United States Code, is amended—
(1) by inserting " ( a ) " before "In"; and
(2) by adding at the end thereof the following new subsection:
"(b") If an examining agency determines that, on the basis of evidence before it, a preference eligible described in section 2108(3) (C)
of this title who has a compensable service-connected disability of 30
percent or more is not able to fulfill the physical requirements of the
position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the
preference eligible of the reasons for the determination and of the
right to respond, within 15 days of the date of the notification, to the
Office. The Office shall require a demonstration by the appointing
authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other
person for the position, make a final determination on the physical
ability of the preference eligible to perform the duties of the position,
taking into account any additional information provided in the
response. When the Office has completed its review of the proposed
disqualification on the basis of physical disability, it shall send its
findings to the appointing authority and the preference eligible. The
appointing authority shall comply with the findings of the Office. The
functions of the Office under this subsection may not be delegated.".
(h) (1) Section 3319 of chapter 33 of title 5, United States Code, is
repealed.
(2) The analysis for chapter 33 of title 5, United States Code, is
amended by striking out the item relating to section 3319.
DUAL PAY FOR RETIRED MEMBERS OF T H E UNIFORMED SERVICES

SEO. 308. (a) Section 5532 of title 5, United States Code, relating to
retired officers of the uniformed services, is amended by redesignating
subsections (c) and (d) as subsections (d) and (e) and by inserting
after subsection (b) the following:

92 STAT. 1149

.>"•.-:

5 USC 2108.
5 USC 4301 et
*^9^'^'^' P- 1131.
^°^^' P- H^^-

Repeal,

92 STAT. 1150

PUBLIC LAW 95-454—OCT. 13, 1978

"(c) (1) If any member or former member of a uniformed service
is receiving retired or retainer pay and is employed in a position the
annual rate of basic pay for which, when combined with the member's
annual rate of retired or retainer pay (reduced as provided under subsection (b) of this section), exceeds the rate of tjasic pay then cur5 use 5316 note, rently paid for level V of the Executive Schedule, such member's
retired or retainer pay shall be reduced by an amount computed under
paragraph (2) of this subsection. The amounts of the reductions shall
be deposited to the general fund of the Treasury of the United States.
"(2) The amount of each reduction under paragraph (1) of this
subsection allocable for any pay period in connection with employment
in a position shall be equal to the retired or retainer pay allocable to
the pay period (reduced as provided under subsection (b) of this
section), except that the amount of the reduction may not result in—
"(A) the amount of retired or retainer pay allocable to the pay
period after being reduced, when combined with the basic pay
tor the employment during the pay period, being at a rate less
than the rate of basic pay then currently paid for level V of the
Executive Schedule; or
"(B) the amount of retired pay or retainer pay being reduced
to an amount less than the amount deducted from the retired or
i-etainer pay as a result of participation in any survivor's benefits
in connection with the retired or retainer pay or veterans insurance programs.",
(b) Section 5531 of title 5, United States Code is amended—
(1) by striking out paragraph (1) and inserting in lieu thereof
the following:
"(1) 'meniber' has the meaning given such term by section 101
(23) of title 37;";
(2) by striking out the period at the end of paragraph (2) and
inserting in lieu thereof "; and"; and
"Retired or ^
(3) by adding at the end thereof the following new paragraph:
retainer pay."
"^g^ 'retired or retainer pay' means retired pay, as defined in
5 use 8311.
section 8311(3) of this title, determined without regard to subparagraphs (B) through (D) of such section 8311(3); except
that such term does not include an annuity payable to an eligible
beneficiary of a member or former member of a uniformed service
10 use 1431 et
under chapter 73 of title 10.".
*«9(c) Section 5532(d) of title 5, United States Code, as amended by
subsection (a), is amended—
(1) by striking out "subsection (b) of";
(2) by striking out "or retirement" each place it appears and
inserting in lieu thereof "or retainer";
(3) by striking out "a retired officer of a regular component of
a uniformed service" and inserting in lieu thereof "a member or
former member of a uniformed service who is receiving retired or
retainer pay"; and
,• •.
(4) in paragraph (1), by striking out "whose retirement was"
and inserting in lieu thereof "whose retired or retainer pay is computed, in whole or in part,",
(d) Section 5532(e) of title 5, United States Code, as amended by
subsection (a), is amended to read as follows:
"(e) The Office of Personnel Management may, during the 5-year
Ante, p. 1111.
period after the effective date of the Civil Service Eeform Act of 1978
authorize exceptions to the restrictions in subsections (a), (b), and
(c) of this section ovA^ when necessary to meet special or emergency
employment needs which result from a severe shortage of well quali-

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1151

fied candidates in positions of medical officers which otherwise cannot
be readily met. An exception granted by the office with respect to any
individual shall terminate upon a break in service of 3 days or more.".
(e) Section 5532(b) of title 5, United States Code, is amended by
striking out "or i-etirement" each place it appears and inserting in lieu
thcrGof 01" rct&'iiiGr'
(f) (1) The heading for section 5532 of title 5, United States Code, is
amended to read as follows:
"§ 5532. Employment of retired members of the uniformed services; reduction in retired or retainer pay'*.
(2) The item relating to section 5532 in the table of sections for
chapter 55 of title 5, United States Code, is amended to read as follows:
"5532. Employment of retired members of the uniformed services; reduction in
retired or retainer pay.".
(g)(1) Except as provided in paragraph (2) of this subsection, 5 USC 5532 note,
the amendments made by this section shall apply only with respect
to pay periods beginning after the effective date of this Act and only
with respect to members of the uniformed services who first receive
retired or retainer pay (as defined in section 5531(3) of title 5, United
States Code (as amended by this section)), after the effective date of
this Act.
(2) Such amendments shall not apply to any individual employed
in a position on the date of the enactment of this Act so long as the
individual continues to hold any such position (disregarding any
break in service of 3 days or less) if the individual, on that date, would
have been entitled to retired or retainer pay but for the fact the individual does not satisfy any applicable age requirement.
(3) The provisions of section 5532 of title 5, United States Code, as
in effect immediately before the effective date of this Act, shall apply
with respect to any retired officer of a regular component of the uniformed services who is receiving retired pay on or before such date, or
any individual to whom paragraph (2) applies, in the same manner
and to the same extent as if the preceding subsections of this section
had not been enacted.
CIVIL SERVICE EMPLOYMENT

INFORMATION

SEC. 309. (a) Chapter 33 of title 5, United States Code, is amended
by adding at the end thereof the following new section:
**§ 3327. Civil service employment information
5 USC 3327.
"(a) The Office of Personnel Management shall provide that
information concerning opportunities to participate in competitive
examinations conducted by, or under authority delegated by, the Office
of Personnel Management shall be made available to the employment
offices of the United States Employment Service.
"(b) Subject to such regulations as the Office may issue, each agency
shall promptly notify the Office and the employment offices of the
United States "Employment Service of—
"(1) each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which
the agency seeks applications from persons outside the Federal
service, and
"(2) the period during which applications will be accepted.
As used in this subsection, 'agency' means an agency as defined in sec- "Agency."
tion 6102(a) (1) of this title other than an agency all the positions in 5 USC 5102.
which are excepted by statute from the competitive service.".

92 STAT. 1152

PUBLIC LAW 95-454—OCT. 13, 1978
(b) The table of sections for chapter 33 of title 5, United States
Code, is amended by inserting after the item relating to section 3326
tlie following new item:
"3327. Civil service employment information."
MINORITY RECRUITMENT

PROGRAM

SEC. 310. Section 7151 of title 5, United States Code, is amended—
(1) by striking out.the section heading and inserting in lieu
thereof the following:
"§7151. Antidiscrimination policy; minority recruitment program" ;
(2) by inserting after such section heading the following new
subsection:
"(a) For the purpose of this section—
"Underrepres" (1) 'underrepresentation' means a situation in which the numentation."
jjgj. of members of a minority group designation (determined by
the Equal Employment Opportunity Commission in consultation
with the Office of Personnel Management, on the basis of the policy
set forth in subsection (b) of this section) within a category of
civil service employment constitutes a lowei' percentage of the total
number of employees within the employment category than the
percentage that the minority constituted within the labor force
of the United States, as determined under the most recent decennial or mid-decade census, or current population survey, under
title 13, and
"Category of civil
" (2) 'category of civil service employment' means—
service
"(A) each grade of the General Schedule described in
^"jPWment,"
section 5104 of this title;
5 use 5341
"(I^) 6^ch position subject to subchapter IV of chapter 53
of this title;
"(C) such occupational, professional, or other groupings
•* '
(including occupational series) within the categories established under subparagraphs (A) and (B) of this paragraph
as the Office determines appropriate.";
(3) by inserting " (b)" before "It is the policy"; and
(4) by adding at the end thereof the following new subsection:
"(c) Not later than 180 days after the date of the enactment of the
Ante, p. 1111.
Civil Service Reform Act of 1978, the Office of Personnel Management
shall, by regulation, implement a minority recruitment program which
shall provide, to the maximum extent practicable—
"(1) that each Executive agency conduct a continuing program
for the recruitment of members of minorities for positions in the
agency to carry out the policy set forth in subsection (b) in a
manner designed to eliminate underrepresentation of minorities in
the various categories of civil service employment within the Federal service, with special efforts directed at recruiting in minority
communities, in educational institutions, and from other sources
from which minorities can be recruited; and
" (2) that the Office conduct a continuing program of—
" (A) assistance to agencies in carrying, out programs under
paragraph (1) of this subsection, and
"(B) evaluation and oversight and such recruitment pro'
;;/
grams to determine their effectiveness in eliminating such
.£Olt..fcH.ic j
• minority underrepresentation.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1153

"(d) Not later than 60 days after the date of the enactment of the
Civil Service Reform Act of 1978, the Equal Employment Opportu- Ante, p. 1111.
nity Commission shall—
"(1) establish the guidelines proposed to be used in carrying Proposed
out the program required under subsection (c) of this section; and guidelines.
"(2) make determinations of underrepresentation which are Determinations.
proposed to be used initially under such program; and
"(3) transmit to the Executive agencies involved, to the Office Transmittal to
of Personnel Management, and to the Congress the determinations Executive
agencies.
made under paragraph (2) of this subsection.
" (e) Not later than January 31 of each year, the Office shall prepare Report to
and transmit to each House of the Congress a report on the activities Congress.
of the Office and of Executive agencies under subsection (c) of this
section, including the affirmative action plans submitted under section 717 of the Civil Rig;hts Act of 1964 (42 U.S.C. 2000e-16), the
personnel data file maintained by the Office of Personnel Management,
and any other data necessary to evaluate the effectiveness of the program for each category of civil service employment and for each
minority group designation, for the preceding fiscal year, together
with recommendations for administrative or legislative action the
Office considers appropriate.".
TEMPORARY EMPLOYMENT

LIMITATION

SEC. 311. (a) The total number of civilian employees in the executive branch, on September 30, 1979, on September 30, 1980, and on
September 30,1981, shall not exceed the number of such employees on
September 30, 1977.
(b) (1) For the purpose of this section, "civilian employees in the
executive branch" means all civilian employees within the executive
branch of the Government (other than in the United States Postal
Service or the Postal Rate Commission), whether employed on a fulltime, part-time, or intermittent basis and whether employed on a direct
hire or indirect hire basis.
(2) (A) Such term does not include individuals participating in
special employment programs established for students and disadvantaged youth.
(B) The total number of individuals participating in such programs
shall not at any time exceed 60,000.
(c) In applying the limitation of subsection (a) —
(1) part-time civilian employees in excess of the number of
part-time civilian employees in the executive branch employed on
September 30, 1977, may be counted as a fraction which is determined by dividing 40 hours into the average number of hours of
such employees' regularly scheduled workweek; and
(2) the number of civilian employees in the executive branch on
September 30, 1977, shall be determined on the basis of the number of such employees as set forth in the Monthly Report of Civilian Employment published by the Civil Service Commission.
(d) (1) The provisions of this section shall not apply during a time
of war or during a period of national emergency declared by the Congress or the President,
(2) (A) Subject to the limitation of subparagraph (B) of this
paragraph, the President may authorize employment of civilian
employees in excess of the limitation of subsection (a) if he deems
that such action is necessary in the public interest.

5 u s e 3101 note.

"Civilian
employees in the
executive
branch."
.aVsK

92 STAT. 1154

Regulations.
Termination.

PUBLIC LAW 95-454—OCT. 13, 1978

(B) The President may not, under this paragraph, increase the
maximum number of civilian employees in the executive branch by
more than the percentage increase of the population of the United
States since September 30, 1978, as estimated by the Bureau of the
Census.
(e) The President shall provide that no increase occurs in the procurement of personal services by contract by reason of the enactment
of this section except in cases in which it is to the financial advantage
of the Government to do so.
(f) The President shall prescribe regulations to carry out the
purposes of this section.
(g) The provisions of this section shall terminate on January 31,
1981.
T I T L E IV—SENIOE E X E C U T I V E SERVICE
GENERAL PROVISIONS

5 u s e 2101a.
Post, p. 1155.

Ante, p. 1147.

SEC. 401. (a) Chapter 21 of title 5, United States Code, is amended
by inserting after section 2101 the following new section:
"§ 2101a. The Senior Executive Service
"The 'Senior Executive Service' consists of Senior Executive Service positions (as defined in section 3132(a) (2) of this title).".
(b) Section 2102(a) (1) of title 5, United States Code, is amended—
(1) by striking out "and" at the end of subparagraph ( A ) ;
(2) by adding "and" at the end of subparagraph ( B ) ; and
(3) by adding at the end thereof the following new subparagraph :
"(C) positions in the Senior Executive Service;".
(c) Section 2103(a) of title 5, United States Code, is amended by
inserting before the period at the end thereof the following: "or the
Senior Executive Service".
(d) Section 2108(5) of title 5, United States Code (as amended in
section 307 of this Act), is further amended—
(1) by striking out the period at the end thereof and inserting
in lieu thereof a semicolon; and
(2) by adding at the end thereof the following:
"but does not include applicants for, or members of, the Senior Executive Service.".
(e) The analysis for chapter 21 of title 5, United States Code, is
amended by inserting after the item relating to section 2101 the following new item:
"2101a. The Senior Executive Service.".
AUTHORITY FOR

Ante, p. 1147.

EMPLOYMENT

SEC. 402. (a) Chapter 31 of title 5, United States Code, is amended
by inserting after section 3112 (as added by section 307(b) of this
Act), the following new subchapter:
"SUBCHAPTER II—THE SENIOR E X E C U T I V E SERVICE

5 use 3131.

Ǥ 3131. The Senior Executive Service
"It is the purpose of this subchapter to establish a Senior Executive Service to ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1155

of the Nation and otherwise is of the highest quality. The Senior Executive Service shall be administered so as to—
" (1) provide for a compensation system, including salaries, benefits, and incentives, and for other conditions of employment,
designed to attract and retain highly competent senior
executives;
"(2) ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of
individual and organizational performance (including such factors as improvements in efficiency, productivity, quality of work
or service, cost efficiency, and timeliness of performance and success in meeting equal employment opportunity goals);
"(3) assure that senior executives are accountable and responsible for the effectiveness and productivity of employees under
them;
"(4) recognize exceptional accomplishment;
"(5) enable the head of an agency to reassign senior executives
to best accomplish the agency's mission;
" (6) provide for severance pay, early retirement, and placement
assistance for senior executives who are removed from the Senior
Executive Service for nondisciplinary reasons;
"(7) protexit senior executives from arbitrary or capricious
actions;
"(8) provide for program continuity and policy advocacy in
the management of public programs;
n, . / p/^
"(9) maintain a merit personnel system free of prohibited personnel practices:
"(10) ensure accountability for honest, economical, and efficent Government;
"(11) ensure compliance with all applicable civil service laws,
rules, and regulations, including those related to equal employment opportunity, political activity, and conflicts of interest;
"(12) provide for the initial and continuing systematic development of highly competent senior executives;
"(13) provide for an executive system which is guided by the
public interes*^ and free from improper political interference; and
"(14) appoint career executives to fill Senior Executive Service
positions to the extent practicable, consistent with the effective and
efficient implementation of agency policies and responsibilities.
Ǥ 3132. Definitions and exclusions
5 USC 3132.
"(a) For the purpose of this subchapter—
"(1) 'agency' means an Executive agency, except a Government
corporation and the General Accounting Office, but does not
include—
"(A) any agency or unit thereof excluded from coverage
by the President under subsection (c) of this section; or
"(B) the Federal Bureau of TnvevStigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Security Agency, as determined by the President, an
Executive agency, or unit thereof, whose principal function
;»
is the conduct of foreign intelligence or counterintelligence
activities;

92 STAT. 1156

PUBLIC LAW 95-454—OCT. 13, 1978

"(2) 'Senior Executive Service position' means any position
in an agency which is in GS-16, IT, or 18 of the General
5 use 5332 note.
Schedule or in level IV or V of the Executive Schedule, or an
5 use 5315,
equivalent position, which is not required to be filled by an
^^^^appointment by the President by and with the advice and consent
of the Senate, and in which an employee—
" (A) directs the work of an organizational unit;
" ( B ) is held accountable for the success of one or more
specific programs or projects;
'
" ( ^ ) monitors progress toward organizational goals and
periodically evaluates and makes appropriate adjustments to
such goals;
" (D) supervises the work of employees other than personal
*
assistants; or
" ( E ) otherwise exercises important policy-making, policydetermining, or other executive functions;
but does not include—
"(i) any position in the Foreign Service of the United
•'
States;
"(ii) an administrative law judge position under section
3105 of this title; or
" (iii) any position in the Drug Enforcement Administration which is excluded from the competitive service under
section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108
28use509note.
note; 90 Stat. 2425);
"(3) 'senior executive' means a member of the Senior Executive
Service;
" (4) 'career appointee' means an individual in a Senior Executive Service position whose appointment to the position or previous
appointment to another Senior Executive Service position was
based on approval by the Office of Personnel Management of the
executive qualifications of such individual;
"(5) 'limited term appointee' means an individual appointed
under a nonrenewable appointment for a term of 3 years or less
to a Senior Executive Service position the duties of which will
expire at the end of such term;
"(6) 'limited emergency appointee' means an individual
appointed under a nonrenewable appointment, not to exceed 18
months, to a Senior Executive Service position established to meet
.2t.l.-' :>>'.•' /
a bona fide, unanticipated, urgent need;
"(7) 'noncareer appointee' means an individual in a Senior
>
Executive Service position who is not a career appointee, a limited
term appointee, or a limited emergency appointee;
"(8) 'career reserved position' means a position which is
required to be filled by a career appointee and which is designated
under subsection (b) of this section; and
"(9) 'general position' means any position, other than a career
reserved position, which may be filled by either a career appointee,
noncareer appointee, limited emergency appointee, or limited term
appointee.
Criteria and
"(b)(1) For the purpose of paragraph (8) of subsection (a) of
regulations.
this Section, the Office shall prescribe the criteria and regulations governing the desismation of career reserved positions. The criteria and
regulations shall provide that a position shall be designated as a career

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1157

reserved position only if the filling of the position by a career appointee
is necessary to ensure impartiality, or tne public's confidence in the
impartiality, of the Government. The head of each agency shall be
responsible for designating career reserved positions in such agency in
accordance with such criteria and regulations.
"(2) The Office shall periodically review general positions to determine whether the positions should be designated as career reserved.
If the Office determines that any such position should be so designated,
it shall order the agency to make the designation.
"(3) Notwithstanding the provisions of any other law, any position
to be designated as a Senior Executive Service position (except a
position in the Executive Office of the President) which—
"(A) is under the Executive Schedule, or for which the rate
of basic pay is determined by reference to the Executive Schedule,
and
"(B) on the day before the date of the enactment of the Civil
Service Reform Act of 1978 was specifically required under section 2102 of this title or otherwise required by law to be in the
competitive service,
shall be designated as a career reserved position if the position entails
direct responsibility to the public for the management or operation of
particular government programs or functions.
"(4) Not later than March 1 of each year, the head of each agency
shall publish in the Federal Register a list of positions in the agency
which were career reserved positions during the preceding calendar
year.
"(c) An agency may file an application with the Office setting forth
reasons why it, or a unit thereof, should be excluded from the coverage
of this subchapter. The Office shall—
"(1) review the application and stated reasons,
"(2) undertake a review to determine whether the agency or
unit should be excluded from the coverage of this subchapter, and
"(3) upon completion of its review, recommend to the President whether the agency or unit should be excluded from the
coverage of this subchapter.
If the Office recommends that an agency or unit thereof be excluded
from the coverage of this subchapter, the President may, on written
determination, make the exclusion for the period determined by the
President to be appropriate.
"(d) Any agency or unit which is excluded from coverage under
subsection (c) of this section shall make a sustained effort to oring its
personnel system into conformity with the Senior Executive Service
to the extent practicable.
"(e) The Office may at any time recommend to the President that
any exclusion previously granted to an agency or unit thereof under
subsection (c) of this section be revoked. Upon recommendation of the
Office, the President ma^ revoke, by written determination, any exclusion made under subsection (c) of this section.
"(f) I f "(1) any agency is excluded under subsection (c) of this section, or
"(2) any exclusion is revoked under subsection (e) of this
section,
the Office shall, within 30 days after the action, transmit to the Congress written notice of the exclusion or revocation.

Review.

5 u s e 5311.

Ante, p. 1111.

Publication in
Federal Register.

Application for
exclusion
coverage.

I:} .q -.itin

Exclusion or
revocation.

Written notice,
transmittal to
Congress.

92 STAT. 1158
5 use 3133.

Written request
to 0PM.

^'

,

Ante, p. 1119.
Post, p. 1175.

PUBLIC LAW 95-454—OCT. 13, 1978
**§ 3133. Authorization of positions; authority for appointment
" (a) During each even-numbered calendar year, each agency shall—
"(1) examine its needs for Senior Executive Service positions
for each of the 2 j&scal years beginning after such calendar year;
and
"(2) submit to the Office of Personnel Management a written
request for a specific number of Senior Executive Service positions for each of such fiscal years.
"(b) Each agency request submitted under subsection (a) of this
section shall—
"(1) be based on the anticipated type and extent of program
activities and budget requests of the agency for each of the 2 fiscal
years involved, and such other factors as may be prescribed from
time to time by the Office; and
"(2) identify, by position title, positions which are proposed to
be designated as or removed from designation as career reserved
positions, and set forth justifications for such proposed actions.
"(c) The Office of Personnel Management, in consultation with the
Office of Management and Budget, shall review the request of each
agency and shall authorize, for each of the 2 fiscal years covered by
requests required under subsection (a) of this section, a specific number of Senior Executive Service positions for each agency.
"(d)(1) The Office of Personnel Management may, on a written
request of an agency or on its own initiative, make an adjustment in
the number of positions authorized for any agency. Each agency
request under this paragraph shall be submitted in such form, and shall
be based on such factors, as the Office shall prescribe.
"(2) The total number of positions in the Senior Executive Service
may not at any time during any fiscal year exceed 105 percent of the
total number of positions authorized under subsection (c) of this
section for such fiscal year,
"(e) (1) Not later than July 1, 1979, and from time to time thereafter as the Director of the Office of Personnel Management finds
appropriate, the Director shall establish, by rule issued in accordance
with section 1103(b) of this title, the number of positions out of the
total number of positions in the Senior Executive Service, as authorized by this section or section 413 of the Civil Service Reform Act of
1978, which are to be career reserved positions. Except as provided in
paragraph (2) of this subsection, the number of positions required by
this subsection to be career reserved positions shall not be less than the
number of the positions then in the Senior Executive Service which,
before the date of such Act, were authorized to be filled only through
competitive civil service examination.
"(2) The Director may, by rule, designate a number of career
reserved positions which is less than the number required by paragraph
(1) of this subsection only if the Director determines such lesser number necessary in order to designate as general positions one or more
positions (other than positions described in section 3132(b) (3) of this
title) which—
"(A) involve policymaking responsibilities which require the
advocacy or management of programs of the President and support of controversial aspects of such programs;

PUBLIC LAW 95-454—OCT. 13, 1978
"(B) involve significant participation in the major political
policies of the President; or
"(C) require the senior executives in the positions to serve as
personal assistants of, or advisers to, Presidential appointees.
The Director shall provide a full explanation for his determination in
each case.
*^§3134. Limitations on noncareer and limited appointments
" (a) During each calendar year, each agency shall—
" (1) examine its needs for employment of noncareer appointees
for the fiscal year beginning in the following year; and
"(2) submit to the Office of Personnel Management, in accordance with regulations prescribed by the Office, a written request
for authority to employ a specific number of noncareer appointees
for such fiscal year.
"(b) The number of noncareer appointees in each agency shall be
determined annually by the Office on the basis of demonstrated need
of the agency. The total number of noncareer appointees in all agencies may not exceed 10 percent of the total number of Senior Executive
Service positions in all agencies.
"(c) Subject to the 10 percent limitation of subsection (b) of this
section, the Office may adjust the number of noncareer positions authorized for any agency under subsection (b) of this section if emergency
needs arise that were not anticipated when the original authorizations
were made.
"(d) The number of Senior Executive Service positions in any
agency which are filled by noncareer appointees may not at any time
exceed the greater of—
"(1) 25 percent of the total number of Senior Executive Service positions in the agency; or
"(2) the number of positions in the agency which were filled
on the date of the enactment of the Civil Service Reform Act
of 1978 by—
"(A) noncareer executive assignments under subpart F
of part 305 of title 5, Code of Federal Regulations, as in
effect on such date, or
"(B) appointments to level I V or V of the Executive
Schedule which were not required on such date to be made by
and with the advice and consent of the Senate.
This subsection shall not apply in the case of any agency having
fewer than 4 Senior Executive Service positions.
" (e) The total number of limited emergency appointees and limited
term appointees in all agencies may not exceed 5 percent of the total
number of Senior Executive Service positions in all agencies.
"§3135. Biennial report
" (a) The Office of Persomiel Management shall submit to each House
of the Congress, at the time the budget is submitted by the President
to the Congress during each odd-numbered calendar year, a report on
the Senior Executive Service. The report shall include—
"(1) the number of Senior Executive Service positions authorized for the then current fiscal year, in the aggregate and by
agency, and the projected number of Senior Executive Service
positions to be authorized for the next two fiscal years, in the
aggregate and by agency;

92 STAT. 1159

5 u s e 3134.

5 CFR 305.101 et
seq.

5 u s e 5315,
5316

5 u s e 3135.
Report to
Congress.

92 STAT. 1160

• ^

Report to
Congress.

5 use 3136.

^- i ^ ' '••
'

:

PUBLIC LAW 95-454—OCT. 13, 1978
"(2) the authorized number of career appointees and noncareer
appointees, in the agg^regate and by agency, for the then current
fiscal year;
"(3) the position titles and descriptions of Senior Executive
Service positions desigjiated for the then current fiscal year;
"(4) a description of each exclusion in effect under section
3132(c) of this title during the preceding fiscal year;
"(5) the number of career appointees, limited term appointees,
limited emergency appointees, and noncareer appointees, in the
aggregate and by agency, employed during the preceding fiscal
year;
" (6) the percentage of senior executives at each pay rate, in the
aggregate and by agency, employed at the end of the preceding
fiscal year;
"(7) the distribution and amount of performance awards, in
the aggregate and by agency, paid during the preceding fiscal
(8) the estimated number of career reserved positions which,
during the two fiscal years following the then current fiscal year,
will become general positions and the estimated number of general
positions which durmg such two fiscal years, will become career
reserved positions; and
"(9) such other information regarding the Senior Executive
Service as the Office considers appropriate.
" (b) The Office of Personnel Management shall submit to each
House of the Congress, at the time the budget is submitted to the Congress during each even-numbered calendar year, an interim report
showing changes in matters required to be reported under subsection
(a) of this section.
Ǥ 3136. Regulations
"The Office of Personnel Management shall prescribe regulations to
carry out the purpose of this subchapter.",
(b) Section 3109 of title 5, United States Code, is amended by inserting at the end thereof the following new subsection:
"(c) Positions in the Senior Executive Service may not be filled
under the authority of subsection (b) of this section.".
(c) The analysis for chapter 31 of title 5, United States Code, is
amended—
(1) by striking out the heading for chapter 31 and inserting in
lieu thereof the following:
"CHAPTER 31—AUTHORITY FOR EMPLOYMENT

ft

"SUBCHAPTER I—EMPLOYMENT A U T H O R I T I E S " ;
and
(2) by inserting at the end thereof the following:
"Sec.
"3131.
"3132.
"3133.
"3134.
"3135.
"3136.

"SUBCHAPTER II—THE SENIOR EXECUTIVE SERVICE
The Senior Executive Service.
Definitions and exclusions.
Authorization of positions; authority for appointment.
Limitations on noncareer and limited appointments.
Biennial report.
Regulations.".

PUBLIC LAW 95-454—OCT. 13, 1978
EXAMINATION, CERTIFICATION, AND

92 STAT. 1161

APPOINTMENT

SEC. 403. (a) Chapter 33 of title 5, United States Code, is amended
by adding at the end thereof the following new subchapter:
"SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT,
TRANSFER, AND DEVELOPMENT IN T H E SENIOR
E X E C U T I V E SERVICE
"§3391. Definitions
"For the purpose of this subchapter, 'agency', 'Senior Executive
Service position', 'senior executive', 'career appointee', 'limited term
appointee', 'limited emergency appointee', 'noncareer appointee', and
'general position' have the meanings set forth in section 3132(a) of
this title.
"§3392. General appointment provisions
"(a) Qualification standards shall be established by the head of
each agency for each Senior Executive Service position in the agency—
"(1) in accordance with requirements established by the Office
of Personnel Management, with respect to standards for career
reserved positions, and
"(2) after consultation with the Office, with respect to standards for general positions.
"(b) Not more than 30 percent of the Senior Executive Service positions authorized under section 3133 of this title may at any time be
filled by individuals who did not have 5 years of current continuous
service in the civil service immediately preceding their initial appointment to the Senior Executive Service, unless the President certifies to
the Congress that the limitation would hinder the efficiency of the
Government. In applying the preceding sentence, any break in service
of 3 days or less shall be disregarded.
"(c) If a career appointee is appointed by the President, by and
with the advice and consent of the Senate, to a civilian position in the
executive branch which is not in the Senior Executive Service, and
the rate of basic pay payable for which is equal to or greater than the
rate payable for level V of the Executive Schedule, the career appointee
may elect (at such time and in such manner as the Office may prescribe)
to continue to have the provisions of this title relating to basic pay,
performance awards, awarding of ranks, severance pay, leave, and
retirement apply as if the career appointee remained in the Senior
Executive Service position from which he was appointed. Such provisions shall apply in lieu of the provisions which would otherwise
apply—
" (1) to the extent provided under regulations prescribed by the
Office, and
"(2) so long as the appointee continues to serve under such
Presidential appointment.
"(d) Appointment or removal of a person to or from any Senior
Executive Service position in an independent regulatory commission shall not be subject, directly or indirectly, to review or approval
by any officer or entity within the Executive Office of the President.
Ǥ 3393. Career appointments
" (a) Each agency shall establish a recruitment program, in accordance with guidelines which shall be issued by the Office of Personnel

5 use 3391.

Ante, p. 1155.
5 use 3392.
Qualification
standards,
establishment.

^«^e, p. 1158

5 USC 5316.

5 USC 3393.
Recruitment
program.

92 STAT. 1162

Executive
resources boards,
establishment.

Review boards,
establishment.

Career
appointees,
criteria.

Probationary
period
requirement.

Publication in
Federal Register.

5 use 3394.

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T . 13, 1978
Management, which provides for recruitment of career appointees
from—
" (1) all groups of qualified individuals within the civil service;
or
"(2) all groups of qualified individuals whether or not within
the civil service.
"(b) Each agency shall establish one or more executive resources
boards, as appropriate, the members of which shall be appointed by
the head of the agency from among employees of the agency. The
boards shall, in accordance with merit staffing requirements established
by the Office, conduct the merit staffing process for career appointees,
including—
"(1) reviewing the executive qualifications of each candidate
for a position to be filled by a career appointee; and
"(2) making written recommendations to the appropriate
appointing authority concerning such candidates.
"(c) (1) The Office shall establish one or more qualifications review
boards, as appropriate. It is the function of the boards to certify the
executive qualifications of candidates for initial appointment as
career appointees in accordance with regulations prescribed by the
Office. Of the members of each board more than one-half shall be
appointed from among career appointees. Appointments to such boards
shall be made on a non-partisan basis, the sole selection criterion being
the professional knowledge of public management and knowledge of
the appropriate occupational fields of the intended appointee.
"(2) The Office shall, in consultation with the various qualification
review boards, prescribe criteria for establishing executive qualifications for appointment of career appointees. The criteria shall provide
for—
"(A) consideration of demonstrated executive experience;
"(B) consideration of successful participation in a career executive development program which is approved by the Office; and
"(C) sufficient flexibility to allow for the appointment of
individuals who have speciail or unique qualities which indicate a
likelihood of executive success and who would not otherwise be
eligible for appointment.
"(d) An individual's initial appointment as a career appointee shall
become final only after the individual has served a 1-year probationary
period as a, career appointee.
" (e) Each career appointee shall meet the executive qualifications of
the position to which appointed, as determined in writing by the
appointing authority.
"(f) The title of each career reserved position shall be published in
the Federal Register.
''§ 3394. Noncareer and limited appointments
"(a) Each noncareer appointee, limited term appointee, and limited
emergency appointee shall meet the qualifications of the position to
which appointed, as determined in writing by the appointing authority.
" (b) An individual may not be appointed as a limited term appointee
or as a limited emergency appointee without the prior approval of the
exercise of such appointing authority by the Office of Personnel
Management.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1163

"§ 3395. Reassignment and transfer within the Senior Executive 5 USC 3395.
Service
" ( a ) ( l ) A career appointee in an agency—
"(A) may, subject to paragraph (2) of this subsection, be
reassigned to any Senior Exebii
expenses (including salary) of the sabbatical. The amount shall be
treated as a debt due the United States.
"(d) The Office shall encourage and assist individuals to improve
„ „ ,,
their skills and increase their contribution by service in a variety of
'..; j€ J
agencies as well as by accepting temporary placements in State or
local governments or in the private sector.
5 use 3397.
Ǥ 3397. Regulations
"The Office of Personnel Management shall prescribe regulations to
carry out the purpose of this subchapter.".

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1165

(b) The analysis for chapter 33 of title 5, United States Code, is
amended by inserting after the item relating to section 3385 the
following:
"SUBCHAPTER VIII—APPOINTMENT, REASSIGNMENT, TRANSFER, AND
DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE
"Sec.

"3391.
"3392.
"3393.
"3394.
"3395.
"3396.
"3397.

Definitions.
General appointment provisions.
Career appointments.
Noncareer and limited appointments.
Reassignment and transfer witliin the Senior Executive Service.
Development for and within the Senior Executive Service.
Regulations.".
RETENTION PREFERENCE

SEC. 404. (a) Section 3501(b) of title 6, United States Code, is
amended by striking out the period at the end thereof and inserting in
lieu thereof: "or to a member of the Senior Executive Service.".
(b) Chapter 35 of title 5, United States Code, is amended by adding
at the end thereof the following new subchapter:

,

"SUBCHAPTEE V—KEMOVAL, REINSTATEMENT, AND
GUARANTEED PLACEMENT IN T H E SENIOR EXECUT I V E SERVICE
"§ 3591. Definitions
5 USC 3591.
"For the purpose of this subchapter, 'agency', 'Senior Executive
Service position', 'senior executive', 'career appointee', 'limited term
appointee', 'limited emergency appointee', 'noncareer appointee', and
'general position' have the meanings set forth in section 3132 (a) of this
title.

Ante, p. 1155.

**§ 3592. Removal from the Senior Executive Service
5 USC 3592.
"(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
^»te, p. 1161.
"(2) at any time for less than fully successful executive performance as determined under subchapter I I of chapter 43 of this
title.

Post, p. 1167.

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 ^»te, p- 1138.
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

92 STAT. 1166

PUBLIC LAW 95-454—OCT. 13, 1978

" ( 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—
Post, p. 1169.
"(A) any removal under section 4314(b)(3) of this title; or
"(B) any disciplinary action initiated before an appointment
referred to m 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.
"§ 3593. Reinstatement in the Senior Executive Service
"(a) A former career appointee may be reinstated, without regard
Ante, p. 1161.
to section 3393 (b) and (c) of this title, to any Senior Executive Service position for which the appointee is qualified if—
" (1) the appointee has successfully completed the probationary
period established under section 3393 (d) of this title; and
"(2) the appointee left the Senior Executive Service for reasons other than misconduct, neglect of duty, malfeasance, or less
than fully successful executive performance as determined under
Post, p. 1167.
subchapter I I of chapter 43 of this title.
"(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 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.
5 use 3594.
"§ 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 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.
"(b) A career appointee—
[dli q V'i.
"(1) who has completed the probationary period under section
3393(d) of this title; and
" (2) who is removed from the Senior Executive Service for less
7^''}U. i . *vA
than fully successful executive performance as determined under
subchapter I I of chapter 43 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) the position in which any career appointee is placed under
such subsections shall be a continuing position at GS-15 or above
5 use 5332 note.
of the General Schedule, or an equivalent position, and, in the case
of a career appointee referred to in subsection (a) of this section,
the career appointee shall be entitled to an appointment of a tenure equivalent to the tenure of the appointment held in the position from which the career appointee was appointed;

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T . 13, 1978

92 STAT. 1167

" ( B ) any career appointee placed under subsection (a) or (b)
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
"(C) the placement of any career appointee under subsection
(a) or (b) of this section may not be made to a position which
would cause the separation or reduction in grade of any other
employee.
"(2) An employee who is receiving basic pay under paragraph (1)
(B) (ii) or (iii) of this subsection is entitled to have the basic pay
rate of the employee increased by 50 percent of the amount of each
increase in the maximum rate of basic pay for the grade of the position in which the employee is placed under subsection (a) or (b) of
this section until the rate is equal to the rate in effect under paragraph
(1) (B) (i) of this subsection for the position in which the employee
is placed.
**§ 3595. Regulations
5 use 3595.
"The Office of Personnel Management shall prescribe regulations to
carry out the purpose of this subchapter.".
(c) The chapter analysis for chapter 35 of title 5, United States
Code, is amended by inserting the following new item:
"SUBCHAPTER V—REMOVAL, REINSTATEMENT, AND GUARANTEED
PLACEMENT IN T H E SENIOR EXECUTIVE SERVICE
"Sec.

"3591.
"3592.
"3593.
"3594.
"3595.

Definitions.
Removal from tlie Senior Executive Service.
Reinstatement in the Senior Executive Service.
Guaranteed placement in other personnel systems.
Regulations.".
PERFORMANCE RATING

SEC. 405. (a) Chapter 43 of title 5, United States Code, is amended
by adding at the end thereof the following :
"SUBCHAPTEE II—PERFORMANCE APPRAISAL IN T H E
SENIOR E X E C U T I V E SERVICE
Ǥ 4311. Definitions
5 USC 4311.
"For the purpose of this subchapter, 'agency', 'senior executive', and
'career appointee' have the meanings set forth in section 3132(a) of
this title.
Ante, p. 1155.
"§ 4312. Senior Executive Service performance appraisal systems 5 USC 4312.
"(a) Each agency shall, in accordance with standards established by
the Office of Personnel Management, develop one or more performance
appraisal systems designed to—

92 STAT. 1168

Report to 0PM
and Congress.

5 use 4313.

-'
, , V-

PUBLIC LAW 95-454—OCT. 13, 1978
" (1) permit the accurate evaluation of performance in any position on the basis of criteria which aie related to the position
and which specify the critical elements of the position;
"(2) provide for systematic appraisals of performance of senior executives;
" (3) encourage excellence in performance by senior executives;
and
"(4) provide a basis for making eligibility determinations for
retention in the Senior Executive Service and for Senior Executive Service performance awards.
" (b) Each performance appraisal system established by an agency
under subsection (a) of this section shall provide—
"(1) that, on or 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 to the senior executive;
"(2) that written appraisals of performance are based on the
individual and organizational performance requirements established for the rating period involved; and
" (3) that each senior executive in the agency is provided a copy
of the appraisal and rating under section 4314 of this title and is
given an opportunity to respond in writing and have the rating
reviewed by an employee in a higher executive level in the agency
before the rating becomes final.
"(c)(1) The Office shall review each agency's performance appraisal
system under this section, and determine whether the agency performance appraisal system meets the requirements of this subchapter.
"(2) The Comptroller General shall from time to time review performance appraisal systems under this section to determine the extent
to which any such system meets the requirements under this subchapter and shall periodically report its findings to the Office and to each
House of the Congress.
"(3) If the Office determines that an agency performance appraisal
system does not meet the requirements under this subchapter (including regulations prescribed under section 4315), the agency shall take
such corrective action as may be required by the Office.
"(d) A senior executive may not appeal any appraisal and rating
under any performance appraisal system under this section.
Ǥ 4313. Criteria for performance appraisals
"Appraisals of performance in the Senior Executive Service shall
be based on both individual and organizational performance, taking
into account such factors as—
"(1) improvements in efficiency, productivity, and quality of
work or service, including any significant reduction in paperwork;
"(2) cost efficiency;
"(3) timeliness of performance;
"(4) other indications of the effectiveness, productivity, and
performance quality of the employees for whom the senior executive is responsible; and
,^ J,
"(5) meeting affirmative action goals and achievement of equal
employment opportunity requirements.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1169

"§ 4314. Ratings for performance appraisals
"(a) Each performance appraisal system shall provide for annual
summary ratings of levels of performance as follows:
" (1) one or more fully successful levels,
(2) a minimally satisfactory level, and
"(3) an unsatisfactory level.
"(b) Each performance appraisal system shall provide that—
.j
"(1) any appraisal and any rating under such system—
"(A) are made only after review and evaluation by a performance review board established under subsection (c) of
,
this section;
"(B) are conducted at least annually, subject to the limitation of subsection (c)(3) of this section;
"(C) in the case of a career appointee, may not be made
within 120 days after the beginning of a new Presidential
administration; and
"(D) are based on performance during a performance
appraisal period the duration of which shall be determined
under guidelines established by the Office of Personnel Management, but which may be terminated in any case in which
the agency making an appraisal determines that an adequate
basis exists on which to appraise and rate the senior executive's performance;
"(2) any career appointee receiving a rating at any of the fully
successful levels under subsection (a) (1) of this section may be
given a performance award under section 5384 of this title;
"(3) any senior executive receiving an unsatisfactory rating
under subsection (a) (3) of this section shall be reassigned or
transferred within the Senior Executive Service, or removed from
I
the Senior Executive Service, but any senior executive who
receives 2 unsatisfactory ratings in any period of 5 consecutive
years shall be removed from the Senior Executive Service; and
"(4) any senior executive who twice in any period of 3 consecutive years receives less than fully successful ratings shall be
removed from the Senior Executive Service.
"(c) (1) Each agency shall establish, in accordance with regulations
prescribed by the Office, one or more performance review boards, as
appropriate. It is the function of the boards to make recommendations
to the appropriate appointing authority of the agency relating to the
performance of senior executives in the agency.
"(2) The supervising official of the senior executive shall provide
to the performance review board, an initial appraisal of the senior
executive's performance. Before making any recommendation with
respect to the senior executive, the board shall review any response
by the senior executive to the initial appraisal and conduct such
further review as the board finds necessary.
"(3) Performance appraisals under this subchapter with respect to
any senior executive shall be made by the appointing authority only
after considering the recommendations by the performance review
board Avith respect to such senior executive under paragraph (1) of
this subsection.
"(4) Members of performance review boards shall be appointed in
such a manner as to assure consistency, stability, and objectivity in
performance appraisal. Notice of the appointment of an individual
to serve as a member sliall be published in the Federal Kegister.

5 use 4314.

,l ^

Post, p. 1172.

Performance
review boards.
Establishment.

Membership,
Publication in
Federal Register.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1170

Report to
Congress.
Ante, p. 1159.

Ante, p. 1165.

Post, p. 1172.
5 u s e 4315.

"(5) In the case of an appraisal of a career appointee, more than
one-half of the members of the performance review board shall consist
of career appointees. The requirement of the preceding sentence shall
not apply in any case in which the Office determines that there exists
an insufficient number of career appointees available to comply with
the requirement.
"(d) The Office shall include in each report submitted to each
House of the Congress under section 3135 of this title a report of—
"(1) the performance of any performance review board established under this section,
" (2) the number of individuals removed from the Senior Executive Service under subchapter V of chapter 35 of this title for
less than fully successful executive performance, and
"(3) the number of performance awards under section 5384 of
this title.
"§4315. Regulations
"The Office of Personnel Management shall prescribe regulations
to carry out the purpose of this subchapter.".
(b) The analysis for chapter 43 of title 5, United States Code, is
amended by inserting at the end thereof the following:

"Sec.

"4311.
"4312.
"4313.
"4314.
"4315.

"SUBCHAPTER II—PERFORMANCE APPRAISAL IN T H E
SENIOR EXECUTIVE SERVICE
Deflnitions.
Senior Executive Service performance appraisal systems.
Criteria for performance appraisals.
Ratings for performance appraisals.
> ;
Regulations.".
, ,
AWARDING OF RANKS

5 u s e 4507.
Definitions.
Ante, p. 1155.
Recommendations.

''','

SEC. 406. (a) Chapter 45 of title 5, United States Code, is amended
by adding at the end thereof the following new section:
"§4507. Awarding of ranks in the Senior Executive Service
"(a) For the purpose of this section, 'agency', 'senior executive',
and 'career appointee' have the meanings set forth in section 3132(a)
of this title.
"(b) Each agency shall submit annually to the Office recommendations of career appointees in the agency to be awarded the rank of
Meritorious Executive or Distinguished Executive. The recommendations may take into account the individual's performance over a period
of years. The Office shall review such recommendations and provide
to the President recommendations as to which of the agency recommended appointees should receive such rank.
"(c) During any fiscal year, the President may, subject to subsection (d) of this section, award to any career appointee recommended
by the Office the rank of—
"(1) Meritorious Executive, for sustained accomplishment, or
"(2) Distinguished Executive, for sustained extraordinary
accomplishment.
A career appointee awarded a rank under paragraph (1) or (2) of
this subsection shall not be entitled to be awarded that rank during
the following 4 fiscal years.
"(d) During any 6scal year—
"(1) the number of career appointees awarded the rank of
Meritorious Executive may not exceed 5 percent of the Senior
Executive Service; and
"(2) the number of career appointees awarded the rank of

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1171

Distinguished Executive may not exceed 1 percent of the Senior
,,, ^
Executive Service.
"(e) (1) Receipt by a career appointee of the rank of Meritorious
Executive entitles such individual to a lump-sum payment of $10,000,
which shall be in addition to the basic pay paid under section 5382 of
this title or any award paid under section 5384 of this title.
^"/ra"(2) Receipt by a career appointee of the rank of Distinguished ^^•'^' P- 1172.
Executive entitles the individual to a lump-sum payment of $20,000,
which shall be in addition to the basic pay paid under section 5382 of
this title or any award paid under section 5384 of this title.".
(b) The analysis for chapter 45 of title 5, United States Code, is
amended by adding at the end thereof the following new item:
"4507. Awarding of Ranks in the Senior Executive Service.".
PAY RATES AND SYSTEMS

SEC. 407. (a) Chapter 53 of title 5, United States Code, is amended
by adding at the end thereof the following new subchapter:

i'

"SUBCHAPTER VIII—PAY FOR T H E SENIOR
EXECTTTIVE SERVICE
"§ 5381. Definitions
"For the purpose of this subchapter, 'agency', 'Senior Executive
Service position', and 'senior executive' have the meanings set forth in
section 3132(a) of this title.
"§ 5382. Establishment and adjustment of rates of pay for the
Senior Executive Service
"(a) There shall be 5 or more rates of basic pay for the Senior
Executive Service, and each senior executive shall be paid at one of the
rates. The rates of basic pay shall be initially established and thereafter adjusted by the President subject to subsection (b) of this section.
"(b) In setting rates of basic pay, the lowest rate for the Senior
Executive Service shall not be less than the minimum rate of basic
pay payable for GS-16 of the General Schedule and the highest rate
shall not exceed the rate for level IV of the Executive Schedule. The
payment of the rates shall not be subject to the pay limitation of section 5308 or 5373 of this title.
" ( c ) Subject to subsection (b) of this section, effective at the beginning of the first applicable pay period commencing on or after the
first day of the month in which an adjustment takes effect under section
5305 of this title in the rates of pay under the General Schedule, each
rate of basic pay for the Senior Executive Service shall be adjusted
by an amount determined by the President to be appropriate. The
adjusted rates of basic pay for the Senior Executive Service shall be
included in the report transmitted to the Congress by the President
under section 5305 (a) (3) or (c) (1) of this title.
"(d) The rates of basic pay that are established and adjusted under
this section shall be printed "in the Federal Register and shall supersede any prior rates of basic pay for the Senior Executive Service.
"§ 5383. Setting individual senior executive pay
" (a) P]ach appointing authority shall determine, in accordance with
criteria established by the Office of Personnel Management, which of
the rates established under section 5382 of this title shall be paid to
each senior executive under such appointing authority.

5 USC 5381.
^»«e, p. 1155.
5 USC 5382.

.
5 USC 5315.
5 USC 5308.
^^*^' P- l^^l5 USC 5305.

Publication in
Federal Register,,
^ ^^^ ^^^^•

92 STAT. 1172

PUBLIC LAW 95-454—OCT. 13, 1978

' ' ( b ) I n no event may the aggregate amount paid to a senior executive during any fiscal year under sections 4507, 5382, and 5384 of this
title exceed the annual rate payable for positions at level I of the
Executive Schedule in effect at the end of such fiscal year.
" (c) Except for any pay adjustment under section 5382 of this title,
Ihe rate of basic pay for any senior executive may not be adjusted more
than once during any 12-month period.
" ( d ) T h e rate of basic pay for any career appointee may be reduced
from any rate of basic pay to any lower rate of basic pay only if the
career appointee receives a written notice of the reduction at least 15
days in advance of the reduction.
5 u s e 5384.
"§ 5384. Performance awards in the Senior Executive Service
" ( a ) (1) T o encourage excellence in performance by career appointees, performance awards shall be paid to career appointees in accordance with the provisions of this section.
" ( 2 ) Such awards shall be paid in a l u m p sum and shall be in addition to the basic pay paid under section 5382 of this title or any a w a r d
Ante, p. 1170.
paid under section 4507 of this title.
' ' ( b ) ( 1 ) No performance award under this section shall be paid to
any career appointee whose performance was determined to be less
t h a n fully successful at the time of the appointee's most recent performance appraisal and r a t i n g under subchapter I I of chapter 43 of
Ante, p. 1167.
this title.
" (2) T h e amount of a performance a w a r d under this section shall be
determined by the agency head but may not exceed 20 percent of the
• ''
career appointee's rate of basic pay.
• Ht :<
" ( 3 ) T h e number of career appointees in any agency p a i d performance awards under this section d u r i n g any fiscal year may not exceed
50 percent of the number of Senior Executive Service positions in such
agency. This p a r a g r a p h shall not apply in the case of any agency
which has less than 4 Senior Executive Service positions.
" ( c ) Performance awards paid by any agency under this section
shall be based on recommendations by performance review boards
Ante, p. 1169.
established by such agency under section 4314 of this title.
" ( d ) The Office of Personnel Management may issue guidance to
, „, ,, ,^ agencies concerning the proportion of Senior Executive Service salary
expenses t h a t may be appropriately applied to payment of performance awards and the distribution of awards.
5 u s e 5385.
"§5385. Regulations
" T h e Office of Personnel Management shall prescribe regulations to
carry out the purpose of this subchapter.".
(b) The analysis of chapter 53 of title 5, United States Code, is
amended by adding at the end thereof the following new i t e m s :
Ante, p. 1170.

"SUBCHAPTER VIII—PAY FOR THE SENIOR EXECUTIVE SERVICE
"Sec.
"5381. Definitions.
"5382. Establishment and adjustment of rates of pay for the Senior Executive
Service.
".5383. Setting individual senior executive pay.
r =
"5384. Performance awards in the Senior Executive Service.
"5385. Regulations.".
' '

PUBLIC LAW 95-454—OCT. 13, 1978
:•=

:

92 STAT. 1173

PAY ADMINISTRATION

Srx\ 408. (a) Chcapter 55 of the title 5, United States Code, is
amended—
(1) by inserting "other than an employee or individual excluded
by section 5541(2) (xvi) of this section" immediately before the 5 USC 5541.
period at the end of section 5504(a) ( B ) ;
^
5 USC 5504.
(2) by amending section 5541(2) by striking out "or" after
clause (xiv), by striking out the period after clause (xv) and
inserting " ; or" in lieu thereof, and by adding the following
, >
clause at the end thereof:
" (xvi) member of the Senior Executive Service." ;
and
(3) by inserting "other than a member of the Senior Executive
Service" after "employee" in section 5595(a) (2) (i).
5 USC 5595.
(b) (1) Section 5311 of title 5, United States Code, is amended by
inserting ", other than Senior Executive Service positions," after
"positions".
(2) Section 5331(b) of title 5, United States Code, is amended by
inserting ", other than Senior Executive Service positions," after
"positions".
TRAVEL, TRANSPORTATION, AND SUBSISTENCE

SEC. 409. (a)^ Section 5723(a) (1) of title 5, United States Code, is
amended by striking out "; and" and inserting in lieu thereof "or of
a new appointee to the Senior Executive Service; and".
!
(b) Subchapter I V of chapter 57 of title 5, United States Code, is
amended by adding at the end thereof the following new section:
"§ 5752. Travel expenses of Senior Executive Service candidates 5 USC 5752.
"Employing agencies may pay candidates for Senior Executive
Service positions travel expenses incurred incident to preemployment
interviews requested by the employing agency.".
(c) The analysis for chapter 57 of title 5, United States Code, is
amended by inserting after the item relating to section 5751 the following new item:
"5752. Travel expenses of Senior Executive Service candidates.".
c - v , . : , '•

LEAVE

SEC. 410. Section 6304 of title 5, United States Code, is amended—
(1) in subsection (a), by striking out "and (e)" and inserting in
lieu thereof " ( e ) , and ( f ) " ; and
(2) by adding at the end thereof the following new subsection:
"(f) Annual leave accnied by an individual while serving in a position in the Senior Ilxecutive Service shall not be subject to the limitation on accumulation otherwise imposed by this section.".
DISCIPLINARY ACTIONS

i SEC. 411. Chapter 75 of title 5, United States Code, is amended—
(1) by inserting the following in the chapter analysis after
subchapter I V :

92 STAT. 1174

PUBLIC LAW 95-454r-OCT. 13, 1978
"SUBCHAPTER V—SENIOR EXECUTIVE SERVICE

"Sec.
"7541. Definitions.
"7542. Actions covered.
"7543. Cause and procedure.";
and
(2) by adding the following after subchapter I V :

*

"SUBCHAPTER V—SENIOR E X E C U T I V E SERVICE
5 use 7541.

Ante, p. 1161.

Ante, p. 1134.
5 use 7542.
Ante, p. 11 ?5.
5 use 7532.
Ante, p. 1165.
5 use 7543.

Hearing.
Appeals.
Ante, p. 1138.
Record
maintenance.

Ǥ 7541. Definitions
"For the purpose of this subchapter—
"(1) 'employee' means a career appointee in the Senior Executive Service who—
"(A) has completed the probationary period prescribed
gf i i
under section 3393 (d) of this title; or
I
" (B) was covered by the provisions of subchapter I I of this
chaj>ter immediately before appointment to the Senior Executive Service; and
"(2) 'suspension' has the meaning set forth in section 7501(2)
of this title.
.
"§7542. Actions covered
"This subchapter applies to a removal from the civil service or suspension for more than 14 days, but does not apply to an action
initiated under section 1206 of this title, to a suspension or removal
under section 7532 of this title, or to a removal under section 3592 of
this title.
"§7543. Cause and procedure
"(a) Under regulations prescribed by the Office of Persomiel Management, an agency may take an action covered by this subchapter
against an employee only for such cause as will promote the efficiency
of the service.
"(b) An employee against whom an action covered by this subchapter is proposed is entitled to—
"(1) at least 30 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;
" (2) a reasonable time, but not less than 7 days, to answer orallj
and in writing and to furnish affidavits and other documentary evidence in support of the answer;
"(3) be represented by an attorney or other representative;
and
"(4) a written decision and specific reasons therefor at the
earliest practicable date.
"(c) An agency may provide, by regulation, for a hearing which
may be in lieu of or in addition to the opportunity to answer provided
under subsection (b) (2) of this section.
"(d) An employee against whom an action is taken under this
section is entitled to appeal to the Merit Systems Protection Board
under section 7701 of this title.
"(e) Copies of the notice of proposed action, the answer of the
employee when written, and a Nummary thereof when made orally, the
notice of decision and reason^ therefor, and any order effecting an

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T . 13, 1978

92 STAT. 1175

action covered by this subchapter, together with any supporting material, shall be maintained by the agencj^ and shall be furnished to the
Merit Systems Protection Board upon its request and to the employee
aJffected upon the employee's request.",
RETIREMENT

SEC. 412. (a) Section 8336 of title 5, United States Code, is amended
by redesignating subsection (h) as subsection (i) and inserting immediately after subsection (g) the following new subsection:
"(h) A member of the Senior Executive Service who is removed
from the Senior Executive Service for less than fully successful executive performance (as determined under subchapter I I of chapter 43
of this title) after completing 25 years of service or after becoming ^nte, p. 1167.
50 years of age and completing 20 years of service is entitled to an
annuity.".
(b) Section 8339(h) of title 5, United States Code, is amended by
strikmg out "section 8336(d)" and inserting in lieu thereof "section
8336 (d) or (h)".
^
CONVERSION TO THE SENIOR EXECUTIVE SERVICE

SEC. 413. (a) For the purpose of this section, "agency", "Senior
Executive Service position", "career appointee", "career reserved position"j "limited term appointee", "noncareer appointee", and "general
position" have the meanings set forth in section 3132(a) of title 5,
United States Code (as added by this title), and "Senior Executive
Service" has the meaning set forth in section 2101a of such title 5 (as
added by this title).
(b) (1) Under the guidance of the Office of Personnel Management,
each agency shall—
(A) designate those positions which it considers should be
Senior Executive Service positions and designate which of those
positions it considers should be career reserved positions; and
(B) submit to the Office a written request for—
(i) a specific number of Senior Executive Service positions,'and
(ii) authority to employ a specific number of noncareer
appointees.
(2) The Office of Personnel Management shall review the designations and requests of each agency under paragraph (1) of this subsection, and shall establish interim authorizations in accordance with
sections 3133 and 3134 of title 5, United States Code (as added by this
Act), and shall publish the titles of the authorized positions in the
Federal Register.
(c) (1) Each employee serving in a position at the time it is designated as a Senior Executive Service position under subsection (b) of
this section shall elect to—
(A) decline conversion and be appointed to a position under
such employee's current type of appointment and pay system,
retaining the grade, seniority, and other rights and benefits associated with such type of appointment and pay system; or
(B) accept conversion and be appointed to a Senior Executive
Service position in accordance with the provisions of subsections
(d), (e), (f), (g), and (h) of this section.
The appointment of an employee in an agency because of an election

5 USC 3133 note.

Ante, p. 1155.
Ante, p. 1154.

Publication in
Federal Register,
Ante, pp. 1158,
^1^^-

92 STAT. 1176
Written
notification.

Ante, p. 1161.

5 u s e 5311.

Publication in
Federal Register.

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T . 13, 1978
under subparagraph (A) of this paragraph shall not result in the
separation or reduction in grade of any other employee in such agency.
(2) Any employee in a position which has been designated a Senior
Executive Service position under this section shall be notified in writing of such designation, the election required under paragraph (1) of
this subsection, and the provisions of subsections (d), (e), (f), (g),
and (h) of this section. The employee shall be given 90 days from the
date of such notification to make the election under paragraph (1)
of this subsection.
(d) Each employee who has elected to accept conversion to a Senior
Executive Service position under subsection (c)(1)(B) of this section
and who is serving under—
(1) a career or career-conditional appointment; or
(2) a similar type of appointment in an excepted service position, as determined by the Office;
in a position which is designated as a Senior Executive Service position shall be appointed as a career appointee to such Senior Executive
Service position without regard to section 3393(b)-(e) of title 5,
United States Code (as added by this title).
(e) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and
who is serving under an excepted appointment in a position which
is not designated a career reserved position in the Senior Executive
Service, but is—
(1) a position in Schedule C of subpart C of part 213 of title 5,
Code of Federal Eegulations;
(2) a position filled by noncareer executive assignment under
subpart F of part 305 of title 5, Code of Federal Regulations; or
(c'^ a position in the Executive Schedule under subchapter I I of
chapter 53 of title 5, United States Code, other than a career
Executive Schedule position;
shall be appointed as a noncareer appointee to a Senior Executive
Service position.
(f) Each employee who has elected conversion to a Senior Executive Service position under subsection (c) (1) (B) of this section, who
is serving in a position described in paragraph (1), (2), or (3) of
subsection (e) of this section, and whose position is designated as a
career reserved position under subsection (b) of this section shall be
appointed as a noncareer appointee to an appropriate general position
in the Senior Executive Service or shall be separated.
(g) Each employee who has elected conversion to a Senior Executive
Service position under subsection (c) (1) (B) of this section, who is
serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a Senior
Executive Service position and Avho has reinstatement eligibility to a
position in the competitive sendee, maj^, on request to the Office, be
appointed as a career appointee to a Senior Executive Service position.
The name of, and basis for reinstatement eligibility for, each employee
appointed as a career appointee under this subsection shall be published
in the Federal Register.
(h) Each employee who has elected conversion to a Senior Executive
Service position under subsection (c) (1) (B) of this section and who is
serving under a limited executive assignment under subpart F of part
305 of title 5, Code of Federal Regulations, shall—
(1) be appointed as a limited term appointee to a Senior Execu-

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1177

tive Service position if the position then held by sucih employee
will terminate within 3 years of the date of such appointment;
(2) be appointed as a noncareer appointee to a Senior Executive Service position if the position then held by such employee is
designated as a general position; or
(3) be appointed as a noncareer appointee to a general position
if the position then held by sudh employee is designated as a career
reserved position.
(i) The rate of basic pay for any employee appointed to a Senior
Executive Service position under this section shall be greater than or
equal to the rate of basic pay payable for the position held by such
employee at the time of such appointment.
(j) Any employee who is aggrieved by any action by any agency
under this section is entitled to appeal to the Merit Systems Protection
Board under section 7701 of title 5, United States Code (as added by ^"-te, p. 1138.
this title). An agency sihall take any corrective action which the Board
orders in its decision on an appeal under this subsection.
(k) The Office shaill prescribe regulations to carry out the purpose of Regulations,
this section.
LIMITATIONS ON EXECUTIVE POSITIONS

SEC. 414. (a) (1) (A) The following provisions of section 5108 of
title 5, United States Code, relating to special authority to place positions at GS-16,17, and 18 of the General Schedule, are hereby repealed:
(i) paragraphs (2), (4) through (11), and (13) through (16)
of subsection (c), and
(ii) subsections (d) through (g).
(B) Notwithstanding any other provision of law (other than section 5 USC 5108 note.
5108 of such title 5), the authority granted to an agency (as defined in
section 5102(a) (1) of such title 5) under any such provision to place
one or more positions in GS-16, 17, or 18 of the General Schedule, is
hereby terminated.
(C) Subsection (a) of section 5108 of title 5, United States Code, is
amended to read as follows:
" (a) The Director of the Office of Personnel Management may establisih, and from time to time revise, the maximum numbers of positions
(not to exceed an aggregate of 10,777) which may at any one time be
placed in—
"(i) GS-16,17, and 18; and
"(ii) the Senior Executive Service, in accordance with section
Ante, p. 1158.
3133 of this title.
A position may be placed in GS-16, 17, or 18, only by action of the
Director of the Office of Personnel Management. The authority of the
Director under this subsection shall be carried out by the President in
the case of positions proposed to be placed in GS-16,17, and 18 in the
.
Federal Bureau of Investigation.".
'
J''
(D) Subsection (c) of section 5108 of title 5, United States Code, is
amended—
(i) by redesignating paragraph (3) as paragraph (2) and by
inserting "and" at the end thereof; and
(ii) by redesignating paragraph (12) as paragraph (3) and by
striking out the semicolon at the end and inserting in lieu thereof
a period.
(2) (A) Notwithstanding any other provision of law (other than 5 USC3104note,
section 3104 of title 5, United States Code), the authority granted to

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1178

an agency (as defined in section 5102(a) (1) of such title 5) to establish
scientific or professional positions outside of the General Schedule is
hereby terminated.
(B) Section 3104 of title 5, United States Code, is amended by striking out subsections (a) and (b) and inserting in lieu thereof the
following:
"(a) (1) The Director of the Office of Personnel Management may
establish, and from time to time revise, the maximum number of scientific or professional positions (not to exceed 517) for carrying out research and development functions which require the services of
specially qualified personnel which may be established outside of the
General Schedule. Any such position may be established only by action
of the Director.
"(2) The provisions of paragraph (1) of this subsection shall not
apply to any Senior Executive Service position (as defined in section
^nte, p. 1155.
3132(a) of this title).
"(3) In addition to the number of positions authorized by para,o,,fH.|p.graph (1) of this subsection, the Librarian of Congress may establish,
without regard to the second sentence of paragraph (1) of this subsection, not more than 8 scientific or professional positions to carry out the
research and development functions of the Library of Congress which
require the services of specially qualified personnel.".
(C) Subsection (c) of such section 3104 is amended—
(i) by striking out " ( c ) " and inserting in lieu thereof " ( b ) " ;
and
(ii) by striking out "to establish and fix the pay of positions
under this section and section 5361 of this title" and inserting in
.(Hi ftC'.: )• J {•
lieu thereof "to fix under section 5361 of this title the pay for positions established under this section".
5 use 3104,
(3) (A) The provisions of paragraphs (1) and (2) of this subsection
5108 notes.
shall not apply with respect to any position so long as the individual
occupying such position on the day before the date of the enactment
of this Act continues to occupy such position.
(B) The Director—
(i) in establishing under section 5108 of title 5, United States
Code, the maximum number of positions which may be placed in
GS-16, 17, and 18 of the General Schedule, and
(ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be
established,
. ,
shall take into account positions to which subparagraph (A) of this
paragraph applies.
(b) (1) Section 5311 of title 5, United States Code, is amended by
inserting " ( a ) " before "The Executive Schedule," and by adding at
the end thereof the following new subsection:
Publication in
"(b) (1) Not later than 180 days after the date of the enactment of
Federal Register, the Civil Service Eeform Act of 1978, the Director shall determine
the number and classification of executive level positions in existence
in the executive branch on that date of enactment, and shall publish
the determination in the Federal Register. Effective beginning on the
date of the publication, the number of executive level positions within
the executive branch may not exceed the number published under this
subsection.
"Executive level
"(2) For the purpose of this subsection, 'executive level position'
position."

means—

,,,-:.,:%.,.-.;...,:,, ; , , , ; : , .

.,•.:'

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1179

" (A) any office or position in the civil service the rate of pay for
which is equal to or greater than the rate of basic pay payable for
positions under section 5316 of this title, or
"(B) any such office or position the rate of pay for which may
be fixed by administrative action at a rate equal to or greater than
the rate of basic pay payable for positions under section 5316 of
this title;
but does not include any Senior Executive Service position, as defined
in section 3132(a) of this title.".
(2) The President shall transmit to the Congress by January 1,1980,
a plan for authorizing executive level positions in the executive branch
which shall include the maximum number of executive level positions
necessary by level and a justification for the positions.

5 u s e 5316.

Ante, p. 1155.
Presidential
transmittal to
Congress.
5 u s e 5311 note.

EFFECTIVE DATE; CONGRESSIONAL REVIEW

SEC. 415. (a) (1) The provisions of this title, other than sections 413 5 USe 3131 note,
and 414(a), shall take effect 9 months after the date of the enactment
of this Act.
(2) The provisions of section 413 of this title shall take effect on
the date of the enactment of this Act.
(3) The provisions of section 414 (a) of this title shall take effect 180
days after the date of the enactment of this Act.
(b) (1) The amendments made by sections 401 through 412 of this
title shall continue to have effect unless, during the first period of 60
calendar days of continuous session of the Congress begmning after
5 years after the effective date of such amendments, a concurrent resolution is introduced and adopted by the Congress disapproving the
'"'
continuation of the Senior Executive Service. Such amendments shall
cease to have effect on the first day of the first fiscal year beginning
after the date of the adoption of such concurrent resolution.
(2) The continuity of a session is broken only by an adjournment
of the Congress sine die, and the days on which either House is not in
session because of an adjournment of more than 3 days to a day certain
are excluded in the computation of the 60-day period.
(3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j),
and (k) of section 5305 of title 5, United States Code, shall apply with
"
respect to any concurrent resolution referred to in paragraph (1) of
this subsection, except that for the purpose of this paragraph the reference in such subsection (e) to 10 calendar days shall be considered a
reference to 30 calendar days.
(4) Ihiring the 5-year period referred to in paragraph (1) of this
subsection, the Director of the Office of Personnel Management shall
include in each report required under section 3135 of title 5, United
States Code (as added by this title) an evaluation of the effectiveness
of the Senior Executive Service and the manner in which such Service
is administered.
T I T L E V—MERIT PAY
PAY FOR PERFORMANCE

SEC. 501. Part I I I of title 5, United States Code, is amended by
inserting after chapter 53 the following new chapter:

39-194 O—80—pt. 1

78 : QU

. -

-

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1180

>< "CHAPTER 54—MERIT PAY AND CASH AWARDS

5 u s e 5401.

5 u s e 7103.

Exclusions.

Presidential
reports,
transmittal to
eongress.
Filing of
applications.

Review.

"Sec.
"5401.
"5402.
"5403.
"5404.
"5405.

^ - *
Purpose.
Merit pay system.
Cash award program.
Report.
Regulations.

. - ,
>

.
"^

.

'
'

;

Ǥ 5401. Purpose
"1
" (a) It is the purpose of this chapter to provide for—
" (1) a merit pay system which shall—
" (A) within available funds, recognize and reward quality
performance by varying merit pay adjustments;
"(B) use performance appraisals as the basis for determining merit pay adjustments;
"(C) within available funds, provide for training to
improve objectivity and fairness in the evaluation of performance; and
" (D) regulate the costs of merit pay by establishing appro,, t
priate control techniques; and
"(2) a cash award program which shall provide cash awards
for superior accomplishment and special service.
"(b) (1) Except as provided in paragraph (2) of tnis subsection,
this chapter shall apply to any supervisor or management official (as
defined m paragraphs (10) and (11) of section 7103 of this title,
respectively) who is in a position which is in GS-13, 14, or 15 of the
General Schedule described in section 5104 of this title.
"(2) (A) Upon application under subparagraph (C) of this paragraph, the President may, in writing, exclude an agency or any unit
of an agency from the application of this chapter if the President
considers such exclusion to be required as a result of conditions arising
from—
"(i) the recent establishment of the agency or unit, or the implementation of a new program,
"(ii) an emergency situation, or
^ * ; ^^
/ •
" (iii) any other situation or circumstance.
"(B) Any exclusion under this paragraph shall not take effect
earlier than 30 calendar days after the President transmits to each
House of the Congress a report describing the agency or unit to be
excluded and the reasons therefor.
"(C) An application for exclusion under this paragrapn of an
agency or any unit of an agency shall be filed by the head of the agency
with the Office of Personnel Management, and shall set forth reasons
why the agency or unit should be excluded from this chapter. The
Office shall review the application and reasons, undertake such other
review as it considers appropriate to deterhiine whether the agency
or unit should be. excluded from the coverage of this chapter, and upon
completion of its review, recommend to the President whether the
agency or unit should be so excluded.
"(D) Any agency or unit which is excluded pursuant to this paragraph shall, insofar as practicable, make a sustained effort to eliminate
the conditions on which the exclusion is based.
" ( E ) The Office shall periodically review any exclusion from coverage and may at any time recommend to the President that an exclusion
under this paragraph be revoked. The President may at any time
revoke, in writing, any exclusion under this paragraph.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1181

"§ 5402. Merit pay system

5 use 5402.

" (a) In accordance with the purpose set forth in section 5401 (a) (1)
of this title, the Office of Personnel Management shall establish a merit
pay system which shall provide for a range of basic pay for each
grade to which the system applies, which range shall be limited by the
minimum and maximum rates of basic pay payable for eacli grade
under chapter 53 of this title.
" (b) (1) Under regulations prescribed by the Office, the head of each
agency may provide for increases within the range of basic pay for any
employee covered by the merit pay system.
"(2) Determinations to provide pay increases under this subsection—
"(A) may take into account individual performance and
:
organizational accomplishment, and
"(B) shall be based on factors such as—
"(i) any improvement in efficiency, productivity, and
;
quality of work or service, including any significant reduction
'-^
in paperwork;
"(ii) cost efficiency;
' ;
"(iii) timeliness of performance; and
"(iv) other indications of the effectiveness, productivity,
and quality of performance of the employees for whom the
employee is responsible;
"(C) sihall be subject to review only in accordance with and to
the extent provided by procedures established by the head of the
agency; and
"(D) shall be made in accordance with regulations issued by
the Office which relate to the distribution of increases authorized
under this subsection.
"(3) For any fiscal year, the head of any agency may exercise
authority under paragraph (1) of this subsection only to the extent of
the fimds available for the purpose of this subsection.
" (4) The funds available for the purpose of this subsection to the
head of any agency for any fiscal year shall be determined before the
beginning of the fiscal year by the Office on the basis of the amount
estimated by the Office to be necessary to reflect—
"(A) within-grade step increases and quality step increases
which would have been paid under subchapter III of chapter 53
of this title during the fiscal year to the employees of the agency
covered by the merit pay system if the employees were not so
covered; and
"(B) adjustments under section 5305 of this title which would
have been paid under such subchapter during the fiscal year to
such employees if the employees were not so covered, less an
amount reflecting the adjustment under subsection (c) (1) of this
section in rates of basic pay payable to the employees for the fiscal
year.
" (c) (1) Effective at the beginning of the first applicable pay period
commencing on or after the first day of the month in which an adjustment takes effect under section 5305 of this title, the rate of basic pay
for any position under this chapter shall be adjusted by an amount
equal to the greater of—
"(A) one-half of the percentage of the adjustment in the
annual rate of pay which corresponds to the percentage generally

Establishment,

5 USC 5301
^«9-

^
j

.

5 USC 5331.
5 USC 5305.

Effective date,

f

--

92 STAT. 1182

5 u s e 5941.

5 u s e 5403.

Presidential cash
awards.

^^HM

^'.

Payment of
awards.

PUBLIC LAW 95-454—OCT. 13, 1978
applicable to positions not covenid by the merit pay system in the
same grade as the position; or
" ( B ) such greater amount of such percentage of such adjustment in the annual rate of pay as may be determined by the Office.
" ( 2 ) A n y employee whose position is brought under the merit pay
system shall, so long as the employee continues to occupy the position,
be entitled to receive basic pay at a rate of basic pay not less than the
rate the employee was receiving when the position was brought under
the merit pay system, plus any subsequent adjustment under parag r a p h (1) of this subsection.
" ( 3 ) No employee to whom this chapter applies may be paid less
than the minimum rate of basic pay of the grade of the employee's
position.
" ( d ) U n d e r regulations prescribed by the Office, the benefit of
advancement through the range of basic pay for a g r a d e shall be
preserved for any employee covered by the merit pay system whose
continuous service is interrupted in the public interest by service with
the armed forces, or by service in essential non-Government civilian
employment d u r i n g a period of war or national emergency.
" ( e ) F o r the purpose of section 5941 of this title, rates of basic pay
of employees covered by the merit pay system shall be considered rates
of basic pay fixed by statute.
"§5403. Cash award program
" ( a ) The head of any agency may pay a cash award to, and incur
necessary expenses for the honorary recognition of, any employee
covered by the merit pay system who—
" ( 1 ) by the employee's suggestion, invention, superior accomplishment, or other personal effort, contributes to the efficiency,
economy, or other improvement of Government operations or
achieves a significant reduction in p a p e r w o r k ; or
" ( 2 ) performs a special act or service in the public interest in
connection with or related to the employee's Federal employment.
" ( b ) The President may pay a cash award to, and incur necessary
expenses for the honorary recognition of, any employee covered by
the merit pay system who—
" ( 1 ) by the employee's suggestion, invention, superior accomplishment, or other personal effort, contributes to the efficiency,
economy, or other improvement of Government operations or
achieves a significant reduction in p a p e r w o r k ; or
" ( 2 ) performs an exceptionally meritorious special act or service in the public interest in connection with or related to the
employee's Federal employment.
A Presidential cash award may be in addition to an agency cash award
under subsection (a) of this section.
" ( c ) A cash award to any employee under this section is in addition to the basic pay of the employee under section 5402 of this title.
Acceptance of a cash award under this section constitutes an agreement t h a t the use by the Government of any idea, method, or device
for which the award is made does not form the basis of any claim of
any nature against the Government by the employee accepting the
award, or the employee's heirs or assigns.
" ( d ) A cash award to, and expenses for the honorary recognition of,
any employee covered by the merit pay system may be paid from t h e
fund or appropriation available to the activity primarily benefiting,
or the various activities benefiting, from the suggestion, invention,

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1183

superior accomplishment, or other meritorious effort of the employee.
The head of the agency concerned shall determine the amount to be
contributed by each activity to any agency cash award under subsection
(a) of this section. The President shall determine the amount to be
contributed by each activity to a Presidential award under subsection
(b) of this section,
"(e) (1) Except as provided in paragraph (2) of this subsection, a
cash award under this section may not exceed $10,000.
"(2) If the head of an agency certifies to the Office of Personnel
Management that the suggestion, invention, superior accomplishment,
or other meritorious effort of an employee for which a cash award is
proposed is highly exceptional and unusually outstanding, a cash
award in excess of $10,000 but not in excess of $25,000 may be awarded
to the employee on the approval of the Office.
"(f) The President or the head of an agency may pay a cash award
under this section notwithstanding the death or separation from the
service of an employee, if the suggestion, invention, superior accomplishment, or other meritorious effort of the employee for which the
award is proposed was made or performed while the employee was
covered by the merit pay system.
"§ 5404. Report
"The Office of Personnel Management shall include in each annual
report required by section 1308(a) of this title a report on the operation of the merit pay system and the cash award program established
under this chapter. The report shall include—
"(1) an analysis of the cost and effectiveness of the merit pay
system and the cash award program; and
"(2) a statement of the agencies and units excluded from the
coverage of this chapter under section 5401 (b) (2) of this title, the
reasons for which each exclusion was made, and whether the
exclusion continues to be warranted.
"§•5405. Regulations
"The Office of Personnel Management shall prescribe regulations to
carry out the purpose of this chapter.".

Limitation,

5 USC 5404.
5 USC 1308.

5 USC 5405.

INCENTIVE AWARDS AMENDMENTS

SEC. 502. (a) Section 4503(1) of title 5, United States Code, is
amended by inserting after "operations" the following: "or achieves a
significant reduction in paperwork".
(b) Section 4504(1) of title 5, United States Code, is amended by
inserting after "operations" the following: "or achieves a significant
reduction in paperwork".
TECHNICAL AND CONFORMING AMENDMENTS

SEC. 503. (a) Section 4501(2) (A) of title 5, United States Code, is
amended by striking out "; and" and inserting in lieu thereof ", but
does not include an employee covered by the merit pay system established under section 5402 of this title; and".
(b) Section 4502(a) of title 5, United States Code, is amended by
striking out "$5,000" and inserting in lieu thereof "$10,000".
(c) Section 4502(b) of title 5, United States Code, is amended—
(1) by striking out "Civil Service Commission" and inserting
in lieu thereof "Office of Personnel Management";

-. ;^;. .. .

92 STAT. 1184

.^ ,
'.CI i,r.,r

"
.?•;<. V • r

St:

^ iJ <

PUBLIC LAW 95-454—OCT. 13, 1978
(2) by striking out "$5,000" and inserting in lieu thereof
"$10,000"; and
(3) by striking out "the Commission" and inserting in lieu
thereof "the Office".
(d) Section 4506 of title 5, United States Code, is amended by striking out "Civil Service Commission may" and inserting in lieu thereof
"Office of Personnel Management shall".
(e) The second sentence of section 5332(a) of title 5, United States
Code, is amended by inserting after "applies" the following: ", except
an employee covered by the merit pay system established under section
5402 of this title,".
(f) Section 5334 of title 5, United States Code (as amended in section 801 (a) (3) (G) of this Act), is amended—•
(1) in paragraph (2) of subsection (c), by inserting ", or for
an employee appointed to a position covered by the merit pay system established under section 5402 of this title, any dollar
amount," after "step"; and
(2) by adding at the end thereof the following new subsection:
"(f) In the case of an employee covered by the merit pay system
established under section 5402 of this title, all references in this section
to 'two steps' or 'two step-increases' shall be deemed to mean 6
percent.".
(g) Section 5335(e) of title 5, United States Code, is amended by
inserting after "individual" the following: "covered by the merit pay
system established under section 5402 of this title, or,".
(h) Section 5336(c) of title 5, United States Code, is amended by
inserting after "individual" the following: "covered by the merit pay
system established under section 5402 of this title, or,".
(i) The table of chapters for part I I I of title 5, United States Code,
is amended by insertmg after the item relating to chapter 53 the
following new item:
*54. Merit Pay and Cash Awards
5401".
' '

•'••••'•••

•••''•'

*"-

EFFECTIVE

DATE

5 use 5401 note.

SEC. 504. (a) The provisions of this title shall take effect on the
first day of the first applicable pay period which begins on or after
October 1, 1981, except that such provisions may take effect with
respect to any category or categories of positions before such day to
the extent prescribed by the Director of the Office of Personnel
Management.
5 use 5404 note.
(b) The Director of the Office of Personnel Management shall
include in the first report required under section 5404 of title 5, United
States Code (as added by this title), information with respect to the
progress and cost of the implementation of the merit pay system and
the cash award program established under chapter 54 of such title (as
added by this title).
T I T L E VI—KESEARCH, DEMONSTRATION, AND OTHER
PROGRAMS
RESEARCH PROGRAMS

AND DEMONSTRATION

PROJECTS

SEC. 601. (a) Part I I I of title 5, United States Code, is amended by
adding at the end of subpart C thereof the following new chapter:

PUBLIC LAW 95-454^0CT. 13, 1978
"CHAPTER 47—PERSONNEL RESEARCH PROGRAMS AND
DEMONSTRATION PROJECTS
"Sec.
"4701.
"4702.
"4703.
"4704.
"4705.
"4706.

92 STAT. 1185
•

>;

Definitions.
Kesearch programs.
Demonstration projects.
Allocation of funds.
Reports.
Regulations.

"§4701. Definitions
5USC4701.
"(a) For the pvirpose of this chapter—
"(1) 'agency' means an Executive agency, the Administrative
Office of the United States Courts, and the Government Printing
Office, but does not include—
"(A) a Government corporation;
"(B) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Security Agency, and, as determined by the President, any Executive agency or unit thereof which is designated by the President and which has as its principal function
the conduct of foreign intelligence or counterintelligence
activities; or
"(C) the General Accounting Office;
"(2) 'employee' means an individual employed in or under an
agency;
.
^
"(3) 'eligible' means an individual who has qualified for
appointment in an agency and whose name has been entered on
the appropriate register or list of eligibles;
•'•' '
"(4) 'demonstration project'means a project conducted by the
Office of Personnel Management, or under its supervision, to determine whether a specified change in personnel management policies
or procedures would result in improved Federal personnel management; and
"(5) 'research program' means a planned study of the manner
in which public management policies and systems are operating,
the effects of those policies and systems, the possibilities for
change, and comparisons among policies and systems.
"(b) This subchapter shall not apply to any position in the Drug
Enforcement Administration which is excluded from the competitive
service under section 201 of the Crime Control Act of 1976 (5 U.S.C.
5108note; 90 Stat. 2425).
"§ 4702. Research programs
5 USC 4702.
"The Office of Personnel Management shall—
"(1) establish and maintain (and assist in the establishment
and maintenance of) research programs to study improved
•
methods and technologies in Federal personnel management;
'"(2) evaluate the research programs established under paragraph (1) of this section;
?
"(3) establish and maintain a program for the collection and
public dissemination of information relating to personnel management research and for encouraging and facilitating the
'
exchange of information among interested persons and entities;
and
"(4) carry out the preceding functions directly or through
agreement or contract.

92 STAT. 1186
5 use 4703.

Plan
development.

Publication in
Federal Register.
Hearing.
Notification.

PUBLIC LAW 95-454—OCT. 13, 1978

"§4703. Demonstration projects
" (a) Except as provided in this section, the Office of Personnel Management may, directly or through agreement or contract with one or
more agencies and other public and private organizations, conduct and
evaluate demonstration projects. Subject to the provisions of this section, the conducting of demonstration projects shall not be limited by
any lack of specific authority under this title to take the action contemplated, or by any provision of this title or any rule or regulation
prescribed under this title which is inconsistent with the action, including any law or regulation relating to—
" (1) the methods of establishing qualification requirements for,
recruitment for, and appointment to positions;
"(2) the methods of classifying positions and compensating
employees;
"(3) the methods of assigning, reassigning, or promoting
employees;
" (4) the methods of disciplining employees ;
"(5) the methods of providing incentives to employees, including the provision of group or individual incentive bonuses or pay;
" (6) the hours of work per day or per week;
"(7) the methods of involving employees, labor organizations,
and employee organizations in personnel decisions; and
"(8) the methods of reducing overall agency staff and grade
levels.
"(b) Before conducting or entering into any agreement or contract
to conduct a demonstration project, the Office shall—
"(1) develop a plan for such project which identifies—
" ^ A) the purposes of the proj ect;
"(B) the types of employees or eligibles, categorized by
occupational series, grade, or organizational unit;
"(C) the number of employees or eligibles to be included,
in the aggregate and by category;
" ^ D) the methodology;
" (:E)
E ) the duration;
"' ''
"(F) the training to be provided;
"(G) the anticipated costs;
"(H) the methodology and criteria for evaluation;
"(I) a specific description of any aspect of the project for
which there is a lack of specific authority; and
" ( J ) a specific citation to any provision of law, rule, or
regulation which, if not waived under this section, would prohibit the conducting of the project, or any part of the project
as proposed;
" (2) publish the plan in the Federal Register;
"(3) submit the plan so published to public hearing;
" (4) provide notification of the proposed project, at least 180
days in advance of the date any project proposed under this section is to take effect—
"(A) to employees who are likely to be affected by the
project; and
"(B) to each House of the Congress;
"(5) obtain approval from each agency involved of the final
version of the plan; and

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1187

" (6) provide each House of the Congress with a report at least Report to ,.,!, ,
90 days m advance of the date the project is to take effect setting Congress,
forth the final version of the plan as so approved.
" (c) No demonstration project under this section may provide for a
waiver of—
"(1) any provision of chapter 63 or subpart G of this title;
5 USC 6301
^
" (2) (A) any provision of law referred to in section 2302 (b) (1) e« seq., 8101.
of this title; or
_
Ante, ^. l\\4>.
"(B) any provision of law implementing any provision of law
referred to in section 2302 (b)(1) of this title by—
"(i) providing for equal employment opportunity through
""'
affirmative action; or
"(ii) providing any right or remedy available to any
employee or applicant for employment in the civil service;
"(3) any provision of chapter 15 or subchapter I I I of chapter 5 USC 1501
73 of this title;

_

_

"(4) any rule or regulation prescribed under any provision of
law referred to in paragraph (1), (2), or (3) of this subsection; or
" (5) any provision of chapter 23 of this title, or any rule or regulation prescribed under this title, if such waiver is inconsistent
with any merit system principle or any provision thereof relating
to prohibited personnel practices.
"(d) (1) Each demonstration project shall—
"(A) involve not more than 5,000 individuals other than
individuals in any control groups necessary to validate the results
of the project; and
"(B) terminate before the end of the 5-year period beginning
on the date on which the project takes effect, except that the project may continue beyond the date to the extent necessary to validate the results of the project.
"(2) Not more than 10 active demonstration projects may be in
effect at any time.
"(e) Subject to the terms of any written agreement or contract
between the Office and an agency, a demonstration project involving
the agency may be terminated by the Office, or the agency, if either
determines that the project creates a substantial hardship on, or is not
in the best interests of, the public, the Federal Government, employees,
or eligibles.
"(f) Employees within a unit with respect to which a labor organization is accorded exclusive recognition under chapter 71 of this
title shall not be included within any project under subsection (a) of
this section—
"(1) if the project would violate a collective bargaining agreement (as defined in section 7103(8) of this title) between the
agency and the labor organization, unless there is another written
agreement with respect to the project between the agency and the
organization permitting the inclusion; or
(2) if the project is not covered by such a collective bargaining
agreement, until there has been cx>nsultation or negotiation, as
appropriate, by the agency with the labor organization.
"(g) Employees within any unit with respect to which a labor
organization has not been accorded exclusive recognition under Chapter 71 of this title shall not be included within any project under subsection (a) of this section unless there has been agency consultation
regarding the project with the employees in the unit.

et seq.

5 USC 7321.
Ante, p. 1113.
,,

Termination,

Post, p. 1191.

Post, p. 1192.

92 STAT. 1188
Evaluations.

5 use 4704.

irt: = jt
\
it j '
5 use 4705.
5 use 1308.

5 use 4706.

PUBLIC LAW 95-454—OCT. 13, 1978
"(h) The Office shall provide for an evaluation of the results of
each demonstration project and its impact on improving public management.
"(i) Upon request of the Director of the Office of Personnel Management, agencies shall cooperate with and assist the Office, to the
extent practicable, in any evaluation undertaken under subsection (h)
of this section and provide the Office with requested information and
reports relating to the conducting of demonstration projects in their
respective agencies.
"§ 4704. Allocation of funds
"Funds appropriated to the Office of Personnel Management for the
purpose of this chapter may be allocated by the Office to any agency
conducting demonstration projects or assisting the Office in conducting such projects. Funds so allocated shall remain available for such
period as may be specified in appropriation Acts. No contract shall be
entered into under this chapter unless the contract has been provided
for in advance in appropriation Acts,
'*§ 4705. Reports
"The Office of Personnel Management shall include in the annual
report required by section 1308(a) of this title a summary of research
programs and demonstration projects conducted during the year
covered by the report, the effect of the programs and projects on
improving public management and increasing Government efficiency,
and recommendations of policies a?id procedures which will improve
such management and efficiency.
,, .
Ǥ4706. Regulations
"The Office of Personnel Management shall prescribe regulations
to carry out the purpose of this chapter.".
(b) The table of chapters for part I I I of title 5, United States Code,
is amended by inserting after the item relating to chapter 45 the following new item:
"47. Personnel Research Programs and Demonstration Projects
4701".
INTERGOVERNMENTAL, PERSONNEL ACT AMENDMENTS

i *'' 1 "

SEC. 602. (a) Section 208 of the Intergovernmental Personnel Act
of 1970 (42 U.S.C. 4728) is amended—
(1) by striking out the section heading and inserting in lieu
thereof the following:
" T R A N S F E R O F F U N C T I O N S A N D ADMINISTRATION OF MERIT POLICIES";

(2) by redesignating subsections (b), (c), (d), (e), and (f)
as subsections (c), (d), (e), (f), and (g), respectively, and by
inserting after subsection (a) the following new subsection:
"(b) In accordance with regulations of the Office of Personnel Management, Federal agencies may require as a condition of participation in assistance programs, systems of personnel administration consistent with personnel standards prescribed by the Office for positions
engaged in carrying out such programs. The standards shall—
"(1) include the merit principles in section 2 of this Act;
"(2) be prescribed in such a manner as to minimize Federal
intervention in State and local personnel administration."; and

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1189

(3) by striking out the last subsection and inserting in lieu
thereof the following new subsection.
" (h) Effective one year after the date of the enactment of the Civil Grants-in-aid,
Service Reform Act of 1978, all statutory personnel requirements abolition of
established as a condition of the receipt of Federal grants-in-aid by certain
requirements.
State and local governments are hereby abolished, except—
"(1) requirements prescribed under laws and regulations
referred to in subsection (a) of this section;
!,
"(2) requirements that generally prohibit discrimination in
employment or require equal employment opportunity;
40 use
"(3) the Davis-Bacon Act (40 U.S.C. 276 et seq.); and
" (4) chapter 15 of title 5, United States Code, relating to polit- 2768-276a-5.
ical activities of certain State and local employees.".
(b) Section 401 of such Act (84 Stat. 1920) is amended by striking 5 USC 3371 note,
out "governments and institutions of higher education" and inserting
in lieu thereof "governments, institutions of higher education, and
other organizations".
(c) Section 403 of such Act (84 Stat. 1925) is amended by inserting
" ( a ) " after "403.", and by adding at the end thereof the following new
subsection:
"(b) Effective beginning on the effective date of the Civil Service
Reform Act of 1978, the provisions of section 314(f) of the Public
Health Service Act (42 U.S.C. 246(f)) applicable to commissioned
officers of the Public Health Service Act are hereby repealed.".
(d) Section 502 of such Act (42 U.S.C. 4762) is amended in paragraph (3) by inserting "the Trust Territory of the Pacific Islands,"
before "and a territory or possession of the United States,".
(e) Section 506 of such Act (42 U.S.C. 4766) is amended—
(1) in subsection (b) (2), by striking out "District of Columbia" and inserting in lieu thereof "District of Columbia, the
< Commonwealth of Puerto Rico, Guam, American Samoa, and the
Virgin Islands"; and
(2) in subsection (b) (5), by striking out "and the District of
Columbia" and inserting in lieu thereof ", the District of Colum. bia, the Commonwealth of Puerto Rico, Guam, American Samoa,
and the Virgin Islands".
AMENDMENTS TO T H E MOBILITY PROGRAM

SEC. 603. (a) Section 3371 of title 5, United States Code, is
amended—
(1) by inserting "the Trust Territory of the Pacific Islands,"
after "Puerto Rico," in paragraph (1) ( A ) ; and
(2) by striking out "and" at the end of paragraph (1), by striking out the period at the end of paragraph (2) and inserting a
semicolon in lieu thereof, and by adding at the end thereof the
following:
"(3) 'Federal agency' means an Executive agency, military
department, a court of the United States, the Administrative
Office of the United States Courts, the Library of Congress, the
Botanic Garden, the Government Printing Office, the Congressional Budget Office, the United States Postal Service, the Postal
Rate Commission, the Office of the Architect of the Capitol, the
Office of Technology Assessment, and such other similar agencies
of the legislative and judicial branches as determined appropriate
by the Office of Personnel Management; and

"Federal
agency."

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T . 13, 1978

92 STAT. 1190
"Other
^
organization."

n

"(4) 'other organization'means—
"(A) a national, regional, State-wide, area-wide, or metropolitan organization representing member State or local
governments;
"(B^ an association of State or local public officials; or
'
"(C) a nonprofit organization which has as one of its prinBJ!O'
cipal functions the offering of professional advisory, research,
educational, or development services, or related services,
to governments or universities concerned with public
management.".
' '
(b) Sections 3372 through 3375 of title 5, United States Code, are
amended by striking out "executive agency" and "an executive agency"
each place they appear and inserting in lieu thereof "Federal agency"
.fiiOf:
and "a Federal agency", respectively.
(c) Section 3372 of title 5, United States Code, is further amended—•
(1) in subsection (a) (1), by inserting after "agency" the following: ", other than a noncareer appointee, limited term
appointee, or limited emergency appointee (as such terms are
defined in section 3132(a) of this title) in the Senior Executive
Service and an employee in a position which has been excepted
from the competitive service by reason of its confidential, policydetermining, policy-making, or policy-advocating character,";
(2) in subsection (b) (1), by striking out "and";
(3) in subsection (b)(2), by striking out the period after
"agency" and inserting in lieu thereof a semicolon;
(4) by adding at the end of subsection (b) the following:
"(3) an employee of a Federal agency to any other organization; and
"(4) an employee of an other organization to a Federal
agency."; and
(5) by adding at the end thereof (as amended in paragraph (4)
of this subsection) the following new subsection:
"(c) (1) An employee of a Federal agency may be assigned under
this subchapter only if the employee agrees, as a condition of accepting
an assignment under this subchapter, to serve in the civil service upon
the completion of the assignment for a period equal to the length of the
assignment.
"(2) Each agreement required under paragraph (1) of this subsection shall provide that in the event the employee fails to carry out the
agreement (except for good and sufficient reason, as determined by the
head of the Federal agency from which assigned) the employee shall be
liable to the United States for payment of all expenses (excluding
salary) of the assignment. The amount shall be treated as a debt due
the United States.".
(d) Section 3374 of title 5, United States Code, is further amended—
(1) by adding at the end of subsection (b) the following new
,
sentence:
"The above exceptions shall not apply to non-Federal employees who
5 use 8301 et are covered by chapters 83, 87, and 89 of this title by virtue of their
seq., 8701 et seq., non-Federal employment immediately before assignment and appointmiletseq.
ment under this Section.";
(2) in subsection (c) (1), by striking out the semicolon at the
end thereof and by inserting in lieu thereof the following:
", except to the extent that the pay received from the State or local
* government is less than the appropriate rate of pay which the

PUBUC LAW 95-454—OCT. 13, 1978

92 STAT. 1191

duties would w a r r a n t under the applicable p a y provisions of
this title or other applicable a u t h o r i t y ; " ; and
(3) by striking out t h e period at t h e end of subsection (c) and
inserting in lieu thereof the following: ", or for the contribution
of t h e S t a t e or local government, or a p a r t thereof, t o employee
benefit systems.",
(e) Section 3375(a) of title 5, United States Code, is further
amended by striking out " a n d " at the end of p a r a g r a p h ( 4 ) , by
redesignating p a r a g r a p h (5) as p a r a g r a p h ( 6 ) , and by inserting after
p a r a g r a p h (4) the following;
" ( 5 ) section 5724a(b) of this title, to be used by the employee
for miscellaneous expenses related to change of station where
movement or storage of household goods is involved; and".
TITLE V n — F E D E R A L SERVICE LABOR-MANAGEMENT
RELATIONS
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS

SEC. 701. So much of subpart F of p a r t I I I of title 5, United States
Code, as precedes subchapter I I of chapter 71 thereof is amended to
read as follows:

"Subpart F—^Labor-Management and Employee
Relations
"CHAPTER 71—LABOR-MANAGEMENT RELATIONS
"Sec.
"7101.
"7102.
"7103.
"7104.
"7105.
"7106.

"SUBCHAPTER

I—GENERAL PROVISIONS

Findings and purpose.
Employees' rights.
Definitions; application.
Federal Labor Relations Authority.
Powers and duties of the Authority.
Management rights.

•"
,;

"SUBCHAPTER II—RIGHTS AND DUTIES OP AGENCIES AND
LABOR ORGANIZATIONS
"Sec.
"7111. Exclusive recognition of labor organizations.
"7112. Determination of appropriate units for labor organization representation.
"7113. National consultation rights.
"7114. Representation rights and duties.
"7115. Allotments to representatives.
"7116. Unfair labor practices.
"7117. Duty to bargain in good faith; compelling need; duty to consult
"7118. Prevention of unfair labor practices.
"7119. Negotiation impasses; Federal Service Impasses Panel.
"7120. Standards of conduct for labor organizations.
"SUBCHAPTER III—GRIEVANCES, APPEALS, AND REVIEW
"Sec.

"7121. Grievance procedures.
"7122. Exceptions to arbitral awards.
"7123. Judicial review; enforcement.

^''^
'

t;

) - f -i

92 STAT. 1192

5 use 7101.
^

5USC7102.

5 use 7103.

PUBLIC LAW 95-454—OCT. 13, 1978
"SUBCHAPTER IV—ADMINISTRATIVE AND OTHER PROVISIONS
"Sec.
"7131. Official time.
"7132. Subpenas.
i.' ^ ? . j .
i T;J :• 'i
"7133. Compilation and publication of data.
"7134. Regulations.
"7135. Continuation of existing laws, recognitions, agreements, and procedures.
"SUBCHAPTER I—GENERAL PROVISIONS
Ǥ 7101. Findings and purpose
"(a) The Congress finds that—
"(1) experience in both private and public employment indicates that the statutory protection of the right of employees to
,^, . organize, bargain collectively, and participate through labor
' ^ organizations of their own choosing in decisions which alffect
them—
" (A) safeguards the public interest,
"(B) contributes to the effective conduct of public business,
and
"(C) facilitates and encourages the amicable settlements of
disputes between employees and their employers involving
conditions of employment; and
"(2) the public interest demands the highest standards of
employee performance and the continued development and
implementation of modern and progressive work practices to
facilitate and improve employee performance and the efficient
accomplishment of the operations of the Government.
Therefore, labor organizations and collective bargaining in the civil
service are in the public interest.
"(b) It is the purpose of this chapter to prescribe certain rights and
obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements
and needs of the Government. The provisions of this chapter should be
interpreted in a manner consistent with the requirement of an effective
and efficient Government.
Ǥ7102. Employees'rights
"Each employee shall have the right to form, join, or assist any labor
organization, or to refrain from any such activity, freely and without
fear of penalty or reprisal, and each employee shall be protected in the
exercise of such right. Except as otherwise provided under this chapter,
such right includes the right—
"(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of
the labor organization to heads of agencies and other officials of
the executive branch of the Government, the Congress, or other
appropriate authorities, and
"(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees
under this chapter.
"§7103. Definitions; application
- .,, .
" (a) For the purpose of this chapter—
"(1) 'person' means an individual, labor organization, or
agency;

PUBLIC LAW 95-454—OCT. 13, 1978
" (2) 'employee' means an individual—
" ^ A^ employed in an agency; or
"(B) whose employment in an agency has ceased because of
any unfair labor practice under section 7116 of this title
and who has not obtained any other regular and substantially
equivalent employment, as determined under regulations prescribed hy the Federal Labor Relations Authority;
but does not mclude—
"(i) an alien or noncitizen of the United States who
occupies a position outside the United States;
. " (ii) a member of the uniformed services;
"(iii) a supervisor or a management official;
"(iv) an officer or employee in the Foreign Service of the
United States employed in the Department of State, the
Agency for International Development, or the International
Communication Agency; or
"(v) any person who participates in a strike in violation
of section 7311 of this title;
"(3) 'agency' means an Executive agency (including a nonappropriated fund instrumentality described in section 2105(c)
of this title and the Veterans' Canteen Service, Veterans' Administration), the Library of Congress, and the Government Printing
Office, but does not include—
"(A) the General Accounting Office;
,
"(B) the Federal Bureau of Investigation;
"(C) the General Intelligence Agency;
"(D) the National Security Agency;
" ( E ) the Tennessee Valley Authority;
" ( F ) the Federal Labor Relations Authority;
or
"(G) the Federal Service Impasses Panel;
"(4) 'labor organization' means an organization composed in
whole or in part of employees, in which employees participate
and pay dues, and which has as a purpose the dealing with an
agency concerning grievances and conditions of employment, but
does not include—
"(A) an organization which, by its constitution, bylaws,
tacit agreement among its members, or otherwise, denies
membership because of race, color, creed, national origin, sex,
age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;
"(B) an organization which advocates the overthrow of
the constitutional form of government of the United States;
" (C) an organization sponsored by an agency; or
"(D) an or^nization which participates in the conduct
of a strike agamst the Government or any agency thereof or
imposes a duty or obligation to conduct, assist, or participate
in such a strike;
"(5) 'dues' means dues, fees, and assessments;
"(6) 'Authority'means the Federal Labor Relations Authority
described in section 7104(a) of this title;
"(7) 'Panel' means the Federal Service Impasses Panel described in section 7119 (c) of this title;
"(8) 'collective bargaining agreement' means an agreement
entered into as a result of collective bargaining pursuant to the
provisions of this chapter;

92 STAT. 1193

5 USC 7311.
5 USC 2105.

'• - • - =

92 STAT. 1194

v?r.^"' in"' P

*

5 use 7321.

PUBLIC LAW 95-454—OCT. 13, 1978
"(9) 'grievance' means any complaint—
"(A) by any employee concerning any matter relating to
the employment of the employee;
"(B) by any labor organization concerning any matter
relating to the employment of any employee; or
"(C) by any employee, labor organization, or agency concerning—
"(i) the effect or interpretation, or a claim of breach,
< I..
of a collective bargaining agreement; or"(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment;
"(10) 'supervisor' means an individual employed by an agency
having authority in the interest of the agency to hire, direct,
assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances,
or to effectively recommend such action, if the exercise of the
authority is not merely routine or clerical in nature but requires
the consistent exercise of independent judgment, except that,
with respect to any unit which includes firefighters or nurses, the
term 'supervisor' includes only those individuals who devote a
preponderance of their employment time to exercising such
authority;
"(11) 'management official' means an individual employed by
an agency in a position the duties and responsibilities of which
require or authorize the individual to formulate, determine, or
influence the policies of the agency ;
"(12) 'collective bargaining' means the performance of the
mutual obligation of the representative of an agency and the
exclusive representative of employees in an appropriate unit in
the agency to meet at reasonable times and to consult and bargain
in a good-faith effort to reach agreement with respect to the
conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the
obligation referred to in this paragraph does not compel either
party to agree to a proposal or to make a concession;
"(13) 'confidential employee' means an employee who acts in
a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labormanagement relations;
"(14) 'conditions of employment' means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters—
"(A) relating to political activities prohibited under subchapter I I I of chapter 73 of this title;
"(B) relating to the classification of any position; or
"(C) to the extent such matters are specifically provided
for by Federal statute :
"(15) 'professional employee'means—
*'•
"(A) an employee engaged in the performance of Avork—
"(i) requiring knowledge of an advanced type in
':
a field of science or learning customarily acquired by a
0
prolonged course of specialized intellectual instruction

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1195

and study in an institution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or
from training in the performance of routine mental,
. .,
manual, mechanical, or ph;7sical activities);
"(ii) requiring the consistent exercise of discretion
and judgment in its performance;
"(iii) which is predominantly intellectual and varied
in character (as distinguished from routine mental, manual, mechanical, or physical work); and
"(iv) which is of such character that the output produced or the result accomplished by such work cannot
be standardized in relation to a given period of time; or
"(B) an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A) (i) of this paragraph and is performing related
work under appropriate direction or guidance to qualify the
employee as a professional employee described in subparagraph (A) of this paragraph;
"(16) 'exclusive representative' means any labor organization
which—
i
" (A) is certified as the exclusive representative of employees in an appropriate unit pursuant to section 7111 of this
title; or
"(B) was recognized by an agency immediately before the
effective date of this chapter as the exclusive representative
of employees in an appropriate unit—
"(i) on the basis of an election, or
"(ii) on any basis other than an election,
and continues to be so recognized in accordance with the provisions of this chapter;
" (17) 'firefighter' means any employee engaged in the performance of work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus
and equipment; and
"(18) 'United States' means the 50 States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin
Islands, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
"(b) (1) The President may issue an order excluding any agency Presidential
or subdivision thereof from coverage under this chapter if the Presi- order.
dent determines that—
"(A) the agency or subdivision has as a primary function
intelligence, counterintelligence, investigative, or national security
work, and
"(B) the provisions of this chapter cannot be applied to that
agency or subdivision in a manner consistent with national security
requirements and considerations.
"(2) The President may issue an order suspending any provision Presidential
of this chapter with respect to any agency, installation, or activity order,
located outside the 50 States and the District of Columbia, if the
President determines that the suspension is necessary in the interest
of national security.
. .

39-194 O—80—pt. 1

79 : QL3

92 STAT. 1196
5 use 7104.

PUBLIC LAW 95-454—OCT. 13, 1978

Ǥ 7104. Federal Labor Relations Authority
"(a) The Federal Labor Relations Authority is composed of three
members, not more than 2 of whom may be adherents of the same
political party. No member shall engage in any other business or
employment or hold another office or position in the Government of the
United States except as otherwise provided by law.
"(b) Members of the Authority shall be appointed by the President
by and with the advice and consent of the Senate, and may be removed
by the President only upon notice and hearing and only for inefficiency,
neglect of duty, or malfeasance in office. The President shall designate
one member to serve as Chairman of the Authority.
"(c)(1) One of the original members of the Authority shall be
appointed for a term of 1 year, one for a term of 3 years, and the
Chairman for a term of 5 yeais. Thereafter, each member shall be
appointed for a term of 5 years.
"(2) Notwithstanding paragraph (1) of this subsection, the term
of any member shall not expire before the earlier of—
"(A) the date on which the member's successor takes office, or
"(B) the last day of the Congress beginning after the date on
which the member's term of office would (but for this subparagraph) expire.
An individual chosen to fill a vacancy shall be appointed for the
unexpired term of the member replaced.
"(d) A vacancy in the Authority shall not impair the right of the
remaining members to exercise all of the powers of the Authority.
Report to
"(e) The Authority shall make an annual report to the President
President.
for ti'ansmittal to the Congress which shall include information as
to the cases it has heard and the decisions it has rendered.
"(f) (1) The General Counsel of the Authority shall be appointed
by the President, by and with the advice and consent of the Senate,
for a term of 5 years. The General Counsel may be removed at any time
by the President. The General Counsel shall hold no other office or
position in the Government of the United States except as provided by
Jaw.
"(2) The General Counsel may—
"(A) investigate alleged unfair labor practices under this
chapter,
"(B) file and prosecute complaints under this chapter, and
"(C) exercise such other powers of the Authority as the
U'Ur.ih.-y^'^ ' Authority may prescribe.
,
u^g^ rpjjg General Counsel shall have direct authority over, and
lesponsibility for, all employees in the office of General Counsel,
including employees of the General Counsel in the regional offices of
the Authority.
5 use 7105.
Ǥ 7105. Powers and duties of the Authority
'
"(a)(1) The Authority shall provide leadership in establishing
policies and guidance relating to matters under this chapter, and,
. . .
except as otherwise provided, shall be responsible for carrying out
i- T ;!
^j^^ purpose of this chapter.
" (2) The Authority shall, to the extent provided in this chapter and
in accordance with regulations prescribed by the Authority—
"(A) determine the appropriateness of units for labor organization representation under section 7112 of this title;
" ( B ) supervise or conduct elections to determine whether a
labor organization has been selected as an exclusive representative

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1197

by a majority of the employees in an appropriate unit and otherwise administer the provisions of section 7111 of this title relating
to the according of exclusive recognition to labor organizations;
"(C) prescribe criteria and resolve issues relating to the granting of national consultation rights under section 7113 of this title;
"(D) prescribe criteria and resolve issues relating to determining compelling need for agency rules or regulations under
section 7117(b) of this title;
" ( E ) resolves issues relating to the duty to bargain in good
faith under section 7117(c) of this title;
" ( F ) prescribe criteria relating to the granting of consultation
' ^'
rights with respect to conditions of employment under section
7117(d) of this title;
" (G) conduct hearings and resolve complaints of unfair labor Hearings,
practices under section 7118 of this title;
" ( H ) resolve exceptions to arbitrator's awards under section
7122of this title; and
" ( I ) take such other actions as are necessary and appropriate
to effectively administer the provisions of this chapter.
"(b) The Authority shall adopt an official seal which shall be
judicially noticed.
"(c) The principal office of the Authority shall be in or about the
District of Columbia, but the Authority may meet and exercise any
or all of its powers at any time or place. Except as otherwise expressly
provided by law, the Authority may, by one or more of its members
or by such agents as it may designate, make any appropriate inquiry
necessary to carry out its duties wherever persons subject to this chapter are located. Any member who participates in the inquiry shall not
be disqualified from later participating in a decision of the Authority
in any case relating to the inquiry.
,- r •„^
"(d) The Authority shall appoint an Executive Director and such
regional directors, administrative law judges under section 3105 of
this title, and other individuals as it may from time to time find neces- 5 USC 3105.
sary for the proper performance of its functions. The Authority may
delegate to officers and employees appointed under this subsection
authority to perform such duties and make such expenditures as may
be necessary.
"(e)(1) The Authority may delegate to any regional director its
authority under this chapter—
" (A) to determine whether a group of employees is an appropriate unit;
"(B) to conduct investigations and to provide for hearings;
"(C) to determine whether a question of representation exists
and to direct an election; and
"(D) to supervise or conduct secret ballot elections and certify
the results thereof.
"(2) The Authority may delegate to any administrative law judge
appointed under subsection (d) of this section its authority under
section 7118 of this title to determine whether any person has engaged
in or is engaging in an unfair labor practice.
"(f) If the Authority delegates any authority to any regional director or administrative law judge to take any action pursuant to subsection (e) of this section, the Authority may, upon application by any
interested person filed within 60 days after the date of the action,
review such action, but the review shall not, unless specifically ordered
by the Authority, operate as a stay of action. The Authority may

I

92 STAT. 1198

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T . 13, 1978

affirm, modify, or reverse any action reviewed under this subsection.
If the Authority does not undertake to grant review of the action
under this subsection within 60 days after the later of—
" (1) the date of the action; or
"(2) the date of the filing of any application under this subsection for review of the action;
the action shall become the action of the Authority at the end of such
60-day period.
"(g) In order to carry out its functions under this chapter, the
Authority may—
Hearings.
"(1) hold hearings ;
Administer oaths.
"(2) administer oaths, take the testimony or deposition of any
person under oath, and issue subpenas as provided in section 7132
.Ai-nttM ,
of this title; and
"(3) may require an agency or a labor organization to cease
and desist from violations of this chapter and require it to take
any remedial action it considers appropriate to carry out the
olicies of this chapter.
^ ) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Authority
may appear for the Authority and represent the Authority in any
civil action brought in connection with any function carried out by
the Authority pursuant to this title or as otherwise authorized by law.
"(i) In the exercise of the functions of the Authority under this
title, the Authority may request from the Director of the Office of
Personnel Management an advisory opinion concerning the proper
interpretation of rules, regulations, or policy directives issued by the
Office of Personnel Management in connection with any matter before
the Authority.
5 use 7106.
Ǥ 7106. Management rights
"(a) Subject to subsection (b) of this section, nothing in this
;-,;i.^: ,
chapter shall affect the authority of any management official of any
agency—
"(1) to determine the mission, budget, organization, number
of employees, and internal security practices of the agency; and
"(2) in accordance with applicable laws—
"(A) to hire, assign, direct, layoff, and retain employees
in the agency, or to suspend, remove, reduce in grade or pay,
„ ,
or take other disciplinary action against such employees;
"(B) to assign work, to make determinations with respect
to contracting out, and to determine the personnel by which
agency operations shall be conducted;
"(C) with respect to filling positions, to make selections
for appointments from—
"(i) among properly ranked and certified candidates
for promotion; or
" (ii) any other appropriate source; and
"(D) to take whatever actions may be necessary to carry
out the agency mission during emergencies.
"(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating—
"(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work;

g

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1199

"(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
" (3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such management officials.
"SUBCHAPTEK II—RIGHTS AND D U T I E S O F AGENCIES
AND LABOR ORGANIZATIONS
"§ 7111. Exclusive recognition of labor organizations
" (a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a
secret ballot election, by a majority of the employees in an appropriate
unit who cast valid ballots in the election.
"(b) If a petition is filed with the Authority—
"(1) by any person alleging—
"(A) in the case of an appropriate unit for which there is
no exclusive representative, that 30 percent of the employees
in the appropriate unit wish to be represented for the purpose
of collective bargaining by an exclusive representative, or
"(B) in the case of an appropriate unit for which there is
an exclusive representative, that 30 percent of the employees
in the unit allege that the exclusive representative is no longer
the representative of the majority of the employees in the
unit; or
"(2) by any person seeking clarification of, or an amendment
to, a certification then in effect or a matter relating to representation;
the Authority shall investigate the petition, and if it has reasonable
cause to believe that a question of representation exists, it shall provide
an opportunity for a hearing (for which a transcript shall be kept)
after reasonable notice. If the Authority finds on the record of the
hearing that a question of representation exists, the Authority shall
supervise or conduct an election on the question by secret ballot and
shall certify the results thereof. An election under this subsection shall
not be conducted in any appropriate unit or in any subdivision thereof
within which, in the preceding 12 calendar months, a valid election
under this subsection has been held.
"(c) A labor organization which—
" (1) has been designated by at least 10 percent of the employees
in the unit specified in any petition filed pursuant to subsection
(b) of this section;
" (2) has submitted a valid copy of a current or recently expired
collective bargaining agreement for the unit; or
"(3) has submitted other evidence that it is the exclusive representative of the employees involved;
may intervene with respect to a petition filed pursuant to subsection
(b) of this section and shall be placed on the ballot of any election
imder such subsection (b) with respect to the petition.
"(d) The Authority shall determine who is eligible to vote in any
election under this section and shall establish rules goveminar any such
election, which shall include rules allowing empoyees eligible to vote
the opportunity to choose—
"(1) from labor organizations on the ballot, that labor organination which the employees wish to have represent them; or

5 USC 7lii.

Petition.

Hearing,
Election,

1

.liiU

a

92 STAT. 1200

PUBLIC LAW 95-454—OCT. 13, 1978

" (2) not to be represented by a labor organization.
In any election in which no choice on the ballot receives a majority of
the votes cast, a runoff election shall be conducted between the two
choices receiving the highest number of votes. A labor organization
which receives the majority of the votes cast in an election shall be
certified by the Authority as the exclusive representative.
"(e) A labor organization seeking exclusive recognition shall submit
to the Authority and the agency involved a roster of its officers and
representatives, a copy of its constitution and bylaws, and a statement
JAlt ?'<:} fi of its objectives.
"(f) Exclusive recognition shall not be accorded to a labor
organization—
...
"(1) if the Authority determines that the labor organization
is subject to corrupt influences or influences opposed to democratic
•;, ,t,«/|
principles;
"(2) in the case of a petition filed pursuant to subsection
(b) (1) (A) of this section, if there is not credible evidence that
at least 30 percent of the employees in the unit specified in the petition wish to be represented for the purpose of collective bargaining by the labor organization seeking exclusive recognition;
" (3) if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive
recognition) covering any employees included in the unit specified in the petition, unless—
" (A) the collective bargaining agreement has been in effect
for more than 3 years, or
" (B) the petition for exclusive recognition is filed not more
sixit'sH
than 105 days and not less than 60 days before the expiration
;
date of the collective bargaining agreement; or
"(4) if the Authority has, within the previous 12 calendar
(.rj..-!-{,
months, conducted a secret ballot election for the unit described
in any petition under this section and in such election a majority
of the employees voting chose a labor organization for certification
as the unit's exclusive representative.
" (g) Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in
conformity with regulations and rules or decisions of the Authority.
5 use 7112.
"§7112. Determination of appropriate units for labor organization representation
"(a) (1) The Authority shall determine the appropriateness of any
unit. The Authority shall determine in each case whether, in order to
ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on
an agency, plant, installation, functional, or other basis and shall
determine any unit to be an appropriate unit only if the determination
will ensure a clear and identifiable community of interest among the
employees in the unit and will promote effective dealings with, and
efficiency of the operations of, the agency involved.
"(b) A unit shall not be determined to be appropriate under this
section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes—
Post, 1215.
"(1) except as provided under section 7135(a) (2) of this title,
any management official or supervisor ;
" (2) a confidential employee;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1201

"(3) an employee engaged in personnel work in other than a
purely clerical capacity;
" (4) an employee engaged in administering the provisions of
this chapter;
" (5) both professional employees and other employees, unless a
majority of the professional employees vote for inclusion in the
unit;
" (6) any employee engaged in intelligence, counterintelligence,
investigative, or security work which directly affects national
security; or
" (7) any employee primarily engaged in investigation or audit
functions relating to the work of individuals employed by an
agency whose duties directly affect the internal security of the
agency, but only if the functions are undertaken to ensure that
the duties are discharged honestly and with integrity.
"(c) Any employee who is engaged in administering any provision
of law relating to labor-management relations may not be represented
by a labor organization—
" (1) which represents other individuals to whom such provision
applies; or
"(2) which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision
applies.
"(d) Two or more units which are in an agency and for which a
labor organization is the exclusive representative may, upon petition
by the agency or labor organization, be consolidated with or without
an election into a single larger unit if the Authority considers the
larger unit to be appropriate. The Authority shall certify the labor
organization as the exclusive representative of the new larger unit.
"§ 7113. National consultation rights
5 USC 7113.
"(a) ( t ) If, in connection with any agency, no labor organization
has been accorded exclusive recognition on an agency basis, a labor
organization which is the exclusive representative of a substantial number of the employees of the agency, as determined in accordance with
criteria prescribed by the Authority, shall be granted national consultation rights by the agency. National consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to any labor organization's
eligibility for, or continuation of, national consultation rights shall
be subject to determination by the Authority.
"(b) (1) Any labor organization having national consultation rights
in connection with any agency under subsection (a) of this section
shall—
"(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
"(B) be permitted reasonable time to present its views and recommendations regarding the changes.
"(2) If any views or recommendations are presented under paragraph (1) of this subsection to an agency by any labor organization—
"(A) the agency shall consider the views or recommendations
before taking final action on any matter with respect to which the
views or recommendations are presented; and
"(B) the agency shall provide the labor organization a written
statement of the reasons for taking the final action.
"(c) Nothing in this section shall be construed to limit the right
of any agency or exclusive representative to engage in collective
bargaining.

92 STAT. 1202
5 use 7114.

..'UC j-

PUBLIC LAW 95-454—OCT. 13, 1978
"§7114. Representation rights and duties
*
"(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in the unit
it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees
in the unit it represents without discrimination and without regard to
labor organization membership.
" (2) An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at—
" (A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment; or
"(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if—
" (i) the employee reasonably believes that the examination
may result in disciplinary action against the employee; and
" (ii) the employee requests representation.
" (3) Each agency shall annually inform its employees of their rights
under paragraph (2) (B) of this subsection.
"(4) Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall
meet and negotiate in good faith for the purposes of arriving at a
collective bargaining agreement. In addition, the agency and the exclusive representative may determine appropriate techniques, consistent with the provisions of section 7119 of this title, to assist in any
negotiation.
"(5) The rights of an exclusive representative under the provisions
of this subsection shall not be construed to preclude an employee
from—
"(A) being represented by an attorney or other representative,
other than the exclusive representative, of the employee's own
choosing in any grievance or appeal action; or
"(B) exercising grievance or appellate rights established by
law, rule, or regulation;
except in the case of grievance or appeal procedures negotiated under
this chapter.
"(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall include
the obligation—
"(1) to approach the negotiations with a sincere resolve to
reach a collective bargaining agreement;
"(2) to be represented at the negotiations by duly authorized
representatives prepared to discuss and negotiate on any condition of employment;
"(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;
"(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request
and, to the extent not prohibited by law, data—
"(A) which is normally maintained by the agency in the
,. .
regular course of business;
" ( B ) which is reasonably available and necessary for full
and proper discussion, understanding, and negotiation of sub\
jects within the scope of collective bargaining; and

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1203

"(C) which does not constitute guidance, advice, counsel,
''
-'<•><
or training provided for management officials or supervisors,
relating to collective bargaining; and
"(5) if agreement is reached, to execute on the request of any
party to the negotiation a written document embodying the agreed
terms, and to take such steps as are necessary to implement such
agreement.
"(c) (1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.
"(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement is
in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision).
"(3) If the head of the agency does not approve or disapprove the
agreement within the 30-day period, the agreement shall take effect
and shall be binding on the agency and the exclusive representative
subject to the provisions of this chapter and any other applicable law,
rule, or regulation.
"(4) A local agreement subject to a national or other controlling
agreement at a higher level shall be approved under the procedures of
the controlling agreement or, if none, under regulations prescribed by
^ • ; -• ^
the agency.
"§ 7115. Allotments to representatives
5 USC 7115.
"(a) If an agency has received from an employee in an appropriate
unit a written assignment which authorizes the agency to deduct from
the pay of the employee amounts for the payment of regular and
periodic dues of the exclusive representative of the unit, the agency
shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost
to the exclusive representative or the employee. Except as provided
under subsection (b) of this section, any such assignment may not be
revoked for a period of 1 year.
"(b) An allotment under subsection (a) of this section for the
deduction of dues with respect to any employee shall terminate when—
"(1) the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee; or
"(2) the employee is suspended or expelled from membership
in the exclusive representative.
"(c) (1) Subject to paragraph (2) of this subsection, if a petition
has been filed with the Authority by a labor organization alleging that
10 percent of the employees in an appropriate unit in an agency have
membership in the labor organization, the Authority shall investigate
the petition to determine its validity. Upon certification by the Authority of the validity of the petition, the agency shall have a duty to negotiate with the labor organization solely concerning the deduction of
dues of the labor organization from the pay of the members of the
labor organization who are employees in the unit and who make a voluntary allotment for such purpose.
"(2) (A) The provisions of paragraph (1) of this subsection shall
not apply in the case of any appropriate unit for which there is an
exclusive representative.
"(B) Any agreement under paragraph (1) of this subsection between
a labor organization and an agency with respect to an appropriate unit
shall be null and void upon the certification of an exclusive representative of the unit.
.< !•

92 STAT. 1204
5 use 7116.

PUBLIC LAW 95-454—OCT. 13, 1978

Ǥ 7116. Unfair labor practices
"(a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency—
"(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
"(2) to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment;
"(3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine
services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having
equivalent status;
'' (4) to discipline or otherwise discriminate against an employee
because the employee has filed a complaint, affidavit, or petition, or
has given any information or testimony under this chapter;
"(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
"(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
"(7) to enforce any rule or regulation (other than a rule or
Ante, p. 1114.
regulation implementing section 2302 of this title) which is in
conflict with any applicable collective bargaining agreement if
: I iT ,)> J ]
the agreement was in effect before the date the rule or regulation
was prescribed; or
"(8) to otherwise fail or refuse to comply with any provision
of this chapter.
"(b) For the purpose of this chapter, it shall be an unfair labor
practice for a labor organization—
"(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
"(2) to cause or attempt to cause an agency to discriminate
against any employee in the exercise by the employee of any right
under this chapter;
"(3) to coerce, discipline, fine, or attempt to coerce a member
of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance
or productivity as an employee or the discharge of the member's
duties as an employee;
"(4) to discriminate against an employee with regard to the
terms or conditions of membership in the labor organization on
the basis of race, color, creed, national origin, sex, age, preferential
or nonpreferential civil service status, political affiliation, marital
sta.tus, or handicapping condition;
"(5) to refuse to consult or negotiate in good faith with an
agency as required by this chapter;
"(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
" (7) (A) to call, or participate in, a strike, work stoppage, or
slowdown, or picketing of an agency in a labor-management
dispute if such picketing interferes with an agency's operations,
or
"(B) to condone any activity described in subparagraph (A)
of this paragraph by failing to take action to prevent or stop
such activity; or
"(8) to other\vise fail or refuse to comply with any provision
of this chapter.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1205

Nothing in paragraph (7) of this subsection shall result in any informational picketing which does not interfere with an agency's operations being considered as an unfair labor practice,
"(c) For the purpose of this chapter it shall be an unfair labor
practice for an exclusive representative to deny membership to any
employee in the appropriate unit represented by such exclusive representative except for failure—
"(1) to meet reasonable occupational standards uniformly
required for admission, or
' '^
" (2) to tender dues uniformly required as a condition of acquiring and retaining membership.
This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or
bylaws to the extent consistent with the provisions of this chapter.
"(d) Issues which can properly be raised under an appe^als procedure may not be raised as unfair labor practices prohibited under
this section. Except for matters wherein, under section 7121 (e) and
(f) of this title, an employee has an option of using the negotiated
grievance procedure or an appeals procedure, issues which can be
raised under a grievance procedure may, in the discretion of the
ao-n-rieved party, be raised under the grievance procedure or as an
unfair labor practice under this section, but not under both procedures.
"(e) The expression of any personal view, argument, opinion or the
making of any statement which—
"(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
"(2) corrects the record with respect to any false or misleading
statement made by any person, or
"(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat of reprisal or force or
promise of benefit or was not made under coercive conditions, (A)
constitute an unfair labor practice under any provision of this chapter,
or (B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter.
"§ 7117. Duty to bargain in good faith; compelling need; duty to 5 USC 7117.
consult
"(a)(1) Subject to paragraph (2) of this subsection, the duty to
bar
"(i) withdrawing the allegation; or
«>i ,:
"(ii) setting forth in full its reasons supporting the allegation; and
"(B) furnish a copy of such statement to the exclusive
representative.
"(4) On or before the loth day after the date of the receipt by the
exclusive representative of a copy of a statement under paragraph
(3) (B) of this subsection, the exclusive representative shall file with
the Authority its response to the statement.
"(5) A hearing may be held, in the discretion of the Authority,
before a determination is made under this subsection. If a hearing is
held, it shall not include the General Counsel as a party.
" (6) The Authority shall expedite proceedings under this subsection
to the extent practicable and shall issue to the exclusive representative and to the agency a written decision on the allegation and specific
reasons therefor at the earliest practicable date.
"(d) (1) A labor organization which is the exclusive representative
of a substantial number of employees, determined in accordance with
criteria prescribed by the Authority, shall be granted consultation

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1207

rights by any agency with respect to any Government-wide rule or regulation issued by the agency effecting any substantive change in any
SKilfisH
condition of employment. Such consultation rights shall terminate
when the labor organization no longer meets the criteria prescribed
by the Authority. Any issue relating to a labor organization's eligibility for, or continuation of, such consultation rights shall be subject to
determination by the Authority.
"(2) A labor organization having consultation rights under paragraph (1) of this subsection shall—
"(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
"(B) shall be permitted reasonable time to present its views
and recommendations regarding the changes.
"(3) If any views or recommendations are presented under paragraph (2) of this subsection to an agency by any labor organization—
"(A) the agency shall consider the views or recommendations
before taking final action on any matter with respect to which the
views or recommendations are presented; and
"(B) the agency shall provide the labor organization a written
statement of the reasons for taking the final action.
*'§ 7118. Prevention of unfair labor practices
5 use 7118.
"(a)(1) If any agency or labor organization is charged by any
person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue
and cause to be served upon the agency or labor organization a complaint. In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the
General Counsel shall provide the person making the charge a written
statement of the reasons for not issuing a complaint.
"(2) Any complaint under paragraph (1) of this subsection shall Complaint,
contain a notice—
"(A) of the charge;
"(B) that a hearing will be held before the Authority (or any Hearing,
member thereof or before an individual employed by the
authority and designated for such purpose) ; and
"(C) of the time and place fixed for the hearing.
"(3) The labor organization or agency involved shall have the right
to file an answer to the original and any amended complaint and to
appear in person or otherwise and give testimony at the time and place
fitted in the complaint for the hearing.
"(4) (A) Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued based on any alleged unfair labor
practice which occurred more than 6 months before the filing of the
charge with the Authority.
"(B) If the General Counsel determines that the person filing any
charge was prevented from filing the charge during the 6-month period
*
referred to m subparagraph (A) of this paragraph by reason of—
"(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person,
or

•--:•,:

"(ii) any concealment which prevented discovery of the
alleged unfair labor practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if
the charge was filed during the 6-month period beginning on the day
of the discovery by the person of the alleged unfair labor practice.
"(5) The General Counsel may prescribe regulations providing for Regulations.

92 STAT. 1208

Hearing.

5 use 551.
Transcript.

Rules and
regulations,
interpretation.

5 use 7119.

PUBLIC LAW 95-454—OCT. 13, 1978
informal methods by which the alleged unfair labor practice may be
resolved prior to the issuance of a complaint.
"(6) The Authority (or any member thereof or any individual
employed by the Authority and designated for such purpose) shall conduct a hearing on the complaint not earlier than 5 days after the date
on which the complaint is served. In the discretion of the individual
or individuals conducting the hearing, any person involved may be
allowed to intervene in the hearing and to present testimony. Any such
hearing shall, to the extent practicable, be conducted in accordance
with the provisions of subchapter I I of chapter 6 of this title, except
that the parties shall not be bound by rules of evidence, whether statutory, common law, or adopted by a court. A transcript shall be kept
of the hearing. After such a hearing the Authority, in its discretion,
may upon notice receive further evidence or hear argument.
"(7) If the Authority (or any member thereof or any individual
employed by the Authority and designated for such purpose) determines after any hearing on a complaint under paragraph (5) of this
subsection that the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint
has engaged in or is engaging in an unfair labor practice, then the
individual or individuals conducting the hearing shall state in Avriting
their findings of fact and shall issue and cause to be served on the
agency or labor organization an order—
"(A) to cease and desist from any such unfair labor practice
in which the agency or labor organization is engaged;
"(B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and
requiring that the agreement, as amended, be given retroactive
effect;
"(C) requiring reinstatement of an employee with backpay in
accordance with section 5596 of this title; or
"(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other
action as will carry out the purpose of this chapter.
If any such order requires reinstatement of an employee with backpay,
backpay may be required of the agency (as provided in section 5596
of this title) or of the labor organization, as the case may be, which is
found to have engaged in the unfair labor practice involved.
"(8) If the individual or individuals conducting the hearing determine that the preponderance of the evidence received fails to demonstrate that the agency or labor organization named in the complaint
has engaged in or is engaging in an unfair labor practice, the individual or individuals shall state in writing their findings of fact and
shall issue an order dismissing the complaint.
"(b) In connection with any matter before the Authority in any
proceeding under this section, the Authority may request, in accordance with the provisions of section 7105(i) of this title, from the
Director of the Office of Personnel Management an advisory opinion
concerning the proper interpretation of rules, regulations, or other
policy directives issued by the Office of Personnel Management.
"§7119. Negotiation impasses; Federal Service Impasses Panel
"(a) The Federal Mediation and Conciliation Service shall provide
services and assistance to agencies and exclusive representatives in the
resolution of negotiation impasses. The Service shall determine under
what circumstances and in what manner it shall provide services and
assistance. ,-,,> „,<•,=,!i^r.r. -,•. «uri-.-.M-, ^-i',.i --.v>••,,> . ^--s:?;;^-

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1209

"(b) If voluntary arrangements, including the services of the Fed' • "•'
eral Mediation and Conciliation Service or any other third-party
mediation, fail to resolve a negotiation impasse—
"(1) either party may request the Federal Service Impasses
Panel to consider the matter, or
"(2) the parties may agree to adopt a procedure for binding
arbitration of the negotiation impasse, but only if the procedure
is approved by the Panel.
"(c)(1) The Federal Service Impasses Panel is an entity within the
Authority, the function of which is to provide assistance in resolving
negotiation impasses between agencies and exclusive representatives.
"(2) The Panel shall be composed of a Chairman and at least six Membership,
other members, who shall be appointed by the President, solely on the
basis of fitness to perform the duties and functions involved, from
among individuals who are familiar with Government operations and
knowledgeable in labor-management relations.
"(3) Of the original members of the Panel, 2 members shall be
appointed for a term of 1 year, 2 members shall be appointed for a term
of 3 years, and the Chairman and the remaining members shall be
appointed for a term of 5 years. Thereafter each member shall be
appointed for a term of 5 years, except that an individual chosen to fill
a vacancy shall be appointed for the unexpired term of the member
replaced. Any member of the Panel may be removed by the President.
"(4) The Panel may appoint an Executive Director and any other
individuals it may from time to time find necessary for the proper performance of its duties. Each member of the Panel who is not an
employee (as defined in section 2105 of this title) is entitled to pay at
a rate equal to the daily equivalent of the maximum annual rate of
basic pay then currently paid under the General Schedule for each
day he is engaged in the performance of official business of the Panel,
including travel time, and is entitled to travel expenses as provided
under section 5703 of this title.
"(5) (A) The Panel or its designee shall promptly investigate any Investigation,
impasse presented to it under subsection (b) of this section. The Panel
shall consider the impasse and and shall either—
"(i) recommend to the parties procedures for the resolution of
the impasse; or
" (ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose
of this section.
< , -s .
"(B) If the parties do not arrive at a settlement after assistance by
the Panel under subparagraph (A) of this paragraph, the Panel
may—
"(i) hold hearings;
"(ii) administer oaths, take the testimony or deposition of any
• -•
person under oath, and issue subpenas as provided in section
7132 of this title; and
"(iii) take whatever action is necessary and not inconsistent
with this chapter to resolve the impasse.
"(C) Notice of any final action of the Panel under this section shall
be promptly served upon the parties, and the action shall be binding
on such parties during the term of the agreement, unless the parties
ajrree otherwise.

92 STAT. 1210
5 use 7120.

PUBLIC LAW 95-454—OCT. 13, 1978

I Ǥ 7120. Standards of conduct for labor organizations
*'
"(a) An agency shall only accord recognition to a labor organization that is free from corrupt influences and influences opposed to
basic democratic principles. Except as provided in subsection (b) of
this section, an organization is not required to prove that it is free
from such influences if it is subject to governing requirements adopted
by the organization or by a national or international labor organization or federation of labor organizations with which it is affiliated,
or in which it participates, containing explicit and detailed provisions
to which it subscribes calling for—
"(1) the maintenance of democratic procedures and practi-^es
qiilai;; !!<;•' <
such violation—
"(1) revoke the exclusive reco^ition status of the labor organization, which shall then immediately cease to be legally entitled
and obligated to represent employees in the unit; or
"(2) take any other appropriate disciplinary action.
"SUBCHAPTER III—GRIEVANCES
"§ 7121. Grievance procedures
5 USC 7121.
"(a)(1) Except as provided in paragraph (2) of this subsection,
any collective bargaining agreement shall provide procedures for the
settlement of grievances, including questions of arbitrability. Except
as provided in subsections (d) and (e) of t^is section, the procedures
shall be the exclusive procedures for resolving grievances which fall
within its coverage.
"(2) Any collective bargaining agreement may exclude any matter
from the application of the grievance procedures which are provided
for in the agreement.
"(b) Any negotiated grievance procedure referred to in subsection
(a) of this section shall—
"(1) be fair and simple,
" (2) provide for expeditious processing, and
" (3) include procedures that—
"(A) assure an exclusive representative the right, in its
own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process
grievances;
"(B) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive
representative the right to be present during the grievance
proceeding; and
"(C) provide that any grievance not satisfactorily settled
under the negotiated grievance procedure shall be subject
to binding arbitration which may be invoked by either the
exclusive representative or the agency.
" (c) The preceding subsections of this section shall not apply with
respect to any grievance concerning—
"(1) any claimed violation of subchapter III of chapter 73 of
this title (relating to prohibited political activities);
5 USC 7321.
" (2) retirement, life insurance, or health insurance;
"(3) a suspension or removal under section 7532 of this title;
"(4) any examination, certification, or appointment; or
"(5) the classification of any position which does not result in
the reduction in grade or pay of an employee.
"(d) An aggrieved employee affected bv a prohibited personnel
])ractice under section 2302(b) CI) of this title which also falls under Ante, p. 1114.
the coverage of the negotiated grievance procedure may raise the
matter under a statutory procedure or the negotiated procedure, but
not both. An employee shall l)e deemed to have exercised his option

39-194 O—80—pt. 1

80 : QL3

92 STAT. 1212

PUBLIC LAW 95-454—OCT. 13, 1978

under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely
initiates an action under the applicable statutory procedure or timely
files a grievance in writing, in accordance with the provisions of the
.•j:!:
parties' negotiated procedure, whichever event occurs first. Selection
of the negotiated procedure in no manner prejudices the right of an
aggrieved employee to request the Merit Systems Protection Board to
Ante, p. 1140.
review tlie final decision pursuant to section 7702 of this title in the
case of any personnel action that could have been appealed to the
Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter
involving a complaint of discrimination of the type prohibited by any
law administered by the Equal Employment Opportunity Commission.
Ante, p. 1133,
"(e) (1) Matters covered under sections 4303 and 7512 of this title
1136which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either
Ante, p. 1138.
under the appellate procedures of section 7701 of this title or under
the negotiated grievance procedure, but not both. Similar matters
which arise under other personnel systems applicable to employees
covered by this chapter may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures, if any,
applicable to those matters, or under the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his
option under this subsection to raise a matter either under the applicable appellate procedures or under the negotiated grievance procedure
at such time as the employee timely files a notice of appeal under the
applicable appellate procedures or timely files a grievance in writing
in accordance with the provisions of the parties' negotiated grievance
procedure, whichever event occurs first.
"(2) In matters covered under sections 4303 and 7512 of this title
which have been raised imder the negotiated grievance procedure in
accordance with this section, an arbitrator shall be governed by section
7701 (c) (1) of this title, as applicable.
"(f) In matters covered under sections 4303 and 7512 of this title
which have been raised under the negotiated grievance procedure in
Ante, p. 1143.
accordance with this section, section 7703 of this title pertaining to
judicial review shall apply to the award of an arbitrator in the same
manner and under the same conditions as if the matter had been
decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel
systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award
may be obtained in the same manner and on the same basis as could
l^e obtained of a final decision in such matters raised under applicable
appellate procedures.
. . <--, •
5 use 7122.
"§ 7122. Exceptions to arbitral awards
" (a) Either party to arbitration under this chapter may file with the
Authority an exception to any arbitrator's award pursuant to the
arbitration (other than an award relating to a matter described in
section 7121(f) of this title). If upon review the Authority finds that
the award is deficient—
P
"(1) because it is contrary to any law, rule, or regulation; or
- ^,
^ ' - ' "(2) on other grounds similar to those applied b}^ Federal courts
£|j!.?l 1.SV,'
in private sector labor-management relations;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1213

the Authority may take such action and make such recommendations
concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations.
"(b) If no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the date
of such award, the award shall be final and binding. An agency shall
take the actions required by an arbitrator's final award. The award
may include the payment of backpay (as provided in section 5596 of
this title).
"§7123. Judicial review; enforcement
5 USC 7123.
"(a) Any person aggrieved by any final order of the Authority
other than an order under—
"(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under
section 7118 of this title, or
"(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the
order was issued, institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which
the person resides or transacts business or in the United States Court
of Appeals for the District of Columbia.
"(b) The Authority may petition any appropriate United States Petition,
court of appeals for the enforcement of any order of the Authority
and for appropriate temporary relief or restraining order.
'
"(c) Upon the filing of a petition under subsection (a) of this
section for judicial review or under subsection (b) of this section for
enforcement, the Authority shall file in the court the record in the
proceedings, as provided in section 2112 of title 28. Upon the filing of
the petition, the court shall cause notice thereof to be served to the
parties involved, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief (including a temporary restraining order) it considers
just and proper, and may make and enter a decree affirming and
enforcing, modifying and enforcing as so modified, or setting aside in
whole or in part the order of the Authority, The filing of a petition
under subsection (a) or (b) of this section shall not operate as a stay
of the Authority's order unless the court specifically orders the stay.
Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged 5 USC 706.
before the Authority, or its designee, shall be considered by the court,
unless the failure or neglect to urge the objection is excused because
of extraordinary circumstances. The findings of the Authority with
respect to questions of fact, if supported by substantial evidence on
the record considered as a whole, shall be conclusive. If any person
applies to the court for leave to adduce additional evidence and shows
to the satisfaction of the court that the additional evidence is material
and that there were reasonable grounds for the failure to adduce the
evidence in the hearing before the Authority, or its designee, the court
may order the additional evidence to be taken before the Authority, or
•
its designee, and to be made a part of the record. The Authority may
modify its findings as to the facts, or make new findings by reason of
,
additional evidence so taken and filed. The Authority shall file its
modified or new findings, which, with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole.

..

92 STAT. 1214

: -

5 use 7131.

'" 3-

5 use 7132.
5 use 3105.

PUBLIC LAW 95-454—OCT. 13, 1978
shall be conclusive. The Authority shall file its recommendations, if
any, for the modification or setting aside of its original order. Upon
the filing of the record with the court, the jurisdiction of the court
shall be exclusive and its judgment and decree shall be final, except
that the judgment and decree shall be subject to review by the
Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28.
"(d) The Authority may, upon issuance of a complaint as provided in section 7118 of this title charging that any person has engaged
in or is engaging in an unfair labor practice, petition any United
States district court within any district in which the unfair labor practice in question is alleged to have occurred or in which such person
resides or transacts business for appropriate temporary relief (including a restraining order). Upon the filing of the petition, the court shall
cause notice thereof to be served upon the person, and thereupon shall
have jurisdiction to grant any temporary relief (including a temporary
restraining order) it considers just and proper. A court shall not grant
any temporary relief under this section if it would interfere with the
ability of the agency to carry out its essential functions or if the
Authority fails to establish probable cause that an unfair labor
practice is being committed.
"SUBCHAPTER IV—ADMINISTRATIVE AND OTHER
PROVISIONS
Ǥ 7131. Official time
"(a) Any employee representing an exclusive representative in the
negotiation of a collective bargaining agreement under this chapter
shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise
would be in a duty status. The number of employees for whom official
time is authorized under this subsection shall not exceed the number
of individuals designated as representing the agency for such purposes.
"(b) Any activities performed by any employee relating to the
internal business of a labor organization (including the solicitation of
membership, elections of labor organization officials, and collection of
dues) shall be performed during the time the employee is in a nonduty status.
"(c) Except as provided in subsection (a) of this section, the
Authority shall determine whether any employee participating for, or
on behalf of, a labor organization in any phase of proceedings before
the Authority shall be authorized official time for such purpose during
the time the employee otherwise would be in a duty status.
"(d) Except as provided in the preceding subsections of this
section—
"(1) any employee representing an exclusive representative, or
"(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative,
shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in
the public interest.
"§7132. Subpenas
"(a) Any member of the Authority, the General Counsel, or the
Panel, any administrative law judge appointed by the Authority under
section 3105 of this title, and any employee of the Authority designated by the Authority may—

PUBLIC LAW 95-454—OCT. 13, 1978
"(1) issue subpenas requiring the attendance and testimony of
witnesses and the production of documentary or other evidence
from any place in the United States; and
"(2) administer oaths, take or order the taking of depositions,
order responses to written interrogatories, examine witnesses, and
receive evidence.
No subpena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training
within an agency or between an agency and the Office of Personnel
Management.
"(b) In the case of contumacy or failure to obey a subpena issued
under subsection (a)(1) of this section, the United States district court
for the judicial district in which the person to whom the subpena is
addressed resides or is served may issue an order requiring such person
to appear at any designated place to testify or to produce documentary
or other evidence. Any failure to obey the order of the court may be
punished by the court as a contempt thereof.
"(c) Witnesses (whether appearing voluntarily or under subpena)
shall be paid the same fee and mileage allowances which are paid
subpenaed witnesses in the courts of the United States.
"§ 7133L Compilation and publication of data
"(a) The Authority shall maintain a file of its proceedings and
copies of all available agreements and arbitration decisions, and shall
publish the texts of its decisions and the actions taken by the Panel
under section 7119 of this title.
"(b) All files maintained under subsection (a) of this section shall
be open to inspection and reproduction in accordance with the provisions of sections 552 and 552a of this title.
"§7134. Regulations
"The Authority, the General Counsel, the Federal Mediation and
Conciliation Service, the Assistant Secretary of Labor for Labor Management Relations, and the Panel shall each prescribe rules and
regulations to carry out the provisions of this chapter applicable to
each of them, respectively. Provisions of subchapter II of chapter 5 of
this title shall be applicable to the issuance, revision, or repeal of any
such rule or regulation.
"§ 7135. Continuation of existing laws, recognitions, agreements,
and procedures
" (a) Nothing contained in this chapter shall preclude—
"(1) the renewal or continuation of an exclusive recognition,
certification of an exclusive representative, or a lawful agreement
< between an agency and an exclusive representative of its employ'
ees, which is entered into before the effective date of this chapter; or
l:
"(2) the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented
by labor organizations which historically or traditionally rep^ resent management officials or supervisors in private industry and
which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter.
"(b) Policies, regulations, and procedures established under and
decisions issued under Executive Orders 11491,11616,11636,11787, and
11838, or under any other Executive order, as in effect on the effective
date of this chapter, shall remain in full force and effect until revised
or revoked by the President, or unless superseded by specific provisions

92 STAT. 1215

5 USC 7133.

, ^
5 USC 552,552a.
5 USC 7134.

5 USC 551.
5 USC 7135.

.S''U ; siis

5 USC 7301 note,
7701 note,

92 STAT. 1216

PUBLIC LAW 95-454—OCT. 13, 1978
of this chapter or by regulations or decisions issued pursuant to this
chapter.".
BACKPAY I N CASE OF U N F A I R LABOR PRACTICES AND GRIEVANCES

jinv: JBU S

Ante, p. 1191.
^rete, p. 1138.
5, J, ,. .,; J ,

.^.
.
i..', v J c
5
5 use 5551,
5552.

Ante, p. 1192.

SEC. 702. Section 5596(b) of title 5, United States Code is amended
to read as follows:
"(b) (1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate
authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted
personnel action which has resulted in the withdrawal or reduction of
all or part of the pay, allowances, or differentials of the employee—
"(A) is entitled, on correction of the personnel action, to receive
for the period for which the personnel action was in effect—
"(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee
r
normally would have earned or received during the period if
' •*•
the personnel action had not occurred, less any amounts
earned by the employee through other employment during
that period; and
u •
"(ii) reasonable attorney fees related to the personnel
' >;
action which, with respect to any decision relating to an unfair
labor practice or a grievance processed under a procedure
negotiated in accordance with chapter 71 of this title, shall
' f •;be awarded in accordance with standards established under
.,,
section7701(g) of this title; and
"(B) for all purposes, is deemed to have performed service for
the agency during that period, except that—
" (i) annual leave restored under this j)aragraph which is in
excess of the maximum leave accumulation permitted by law
shall be credited to a separate leave account for the employee
and shall be available for use by the employee within the time
;.' :
limits prescribed by regulations of the Office of Personnel
'^'"' *•
Management, and
jju
"(ii) annual leave credited under clause (i) of this subparagraph but unused and still available to the employee
,HIrtSsH';under regulations prescribed by the Office shall be included in
the lump-sum payment under section 5551 or 5552(1) of this
title but may not be retained to the credit of the employee
under section 5552 (2) of this title.
"(2) This subsection does not apply to any reclassification action
nor authorize the setting aside of an otherwise proper promotion by a
selecting official from a group of properly ranked and certified
candidates.
"(3) For the purpose of this subsection, 'grievance' and 'collective
bargaining agreement' have the meanings set forth in section 7103 of
this title, 'unfair labor practice' means an unfair labor practice
described in section 7116 of this title, and 'personnel action' includes
the omission or failure to take an action or confer a benefit.".
i . .

• ' '"'"'•^ '^'' '
5 u s e 71517154, 7201"7204.

„.-

TECHNICAL AND CONFORMING AMENDMENTS

SEC. 703. (a) Subchapter I I of chapter 71 of title 5, United States
Code, is amended—
(1) by redesignating sections 7151 (as amended by section 310
of this A c t ) , 7152, 7153, a n d 7154 as sections 7201, 7202, 7203, a n d
7204, respectively;

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1217

(2) by striking out the subchapter heading and inserting in lieu
thereof the following:

.

"CHAPTER 72—ANTIDISCRIMINATION; RIGHT TO
PETITION CONGRESS
"SUBCHAPTER 1—ANTIDISCRIMINATION IN EMPLOYMENT
"Sec.

"7201.
"7202.
"7203.
"7204.

Antidiscrimination policy; minority recruitment program.
Marital status.
Handicapping condition.
Other proliibitions.

:'
.;

' - -^^

t

,

"SUBCHAPTER II—EMPLOYEES' RIGHT TO PETITION CONGRESS
"7211. Employees' right to petition Congress.";

t;
.

and
(3) by adding at the end thereof the following new subchapter:
^

"SUBCHAPTER II—EMPLOYEES' RIGHT TO
P E T I T I O N CONGRESS

**§7211. Employees' right to petition Congress
5 USC 7211.
"The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either
House of Congress, or to a committee or Member thereof, may not be
interfered with or denied.".
(b) The analysis for part I I I of title 5, United States Code, is
amended by striking out—
, - '
"Subpart F—Employee Relations
"7L Policies
and inserting in lieu thereof—

7101";

"Subpart F—Labor-Management and Employee Relations
"71. Labor-Management Relations
"72. Antidiscrimination; Right to Petition Congress

7101
7201".

(c) (1) Section 2105 (c) (1) of title 5, United States Code, is amended
by striking out "7152, 7153" and inserting in lieu thereof "7202, 7203".
(2) Section 3302(2) of title 5, United States Code, is amended by
' " '
striking out "and 7154" and inserting in lieu thereof "and 7204".
(3) Sections 4540(c), 7212 (a), and 9540(c) of title 10, United States
..fijif ^
Code, are each amended by striking out "7154 of title 5" and inserting
in lieu thereof "7204 of title 5".
(4) Section 410(b) (1) of title 39, United States Code, is amended
by striking out "chapters 71 (employee policies)" and inserting in lieu
thereof the following: "chaptei-s 72 (antidiscrimination; right to petition Congress)".
(5) Section 1002(g) of title 39, United States Code, is amended by
'^* '
striking out "section 7102 of title 5" and inserting in lieu thereof "section 7211 of title 5".
(d) Section 5315 of title 5, United States Code, is amended by add•
ing at the end thereof the following clause:
"(124) Chairman, Federal Labor Relations Authority.".
(e) Section 5316 of such title is amended by adding at the end thereof 5 USC 5316.
the following clause:
"(145) Members, Federal Labor Relations Authority (2) and
its General Counsel.".

92 STAT. 1218

PUBLIC LAW 95-454—OCT. 13, 1978
MISCELLANEOUS PROVISIONS

5 use 5343 note.

SEC. 704. (a) Those terms and conditions of employment and other
employment benefits with respect to Government prevailing rate
5 use 5343 note, employees to whom section 9(b) of Public Law 92-392 applies which
were the subject of negotiation in accordance with prevailing rates and
practices prior to August 19,1972, shall be negotiated on and after the
date of the enactment of this Act in accordance with the provisions of
section 9(b) of Public Law 92-392 without regard to any provision
Ante, p. 1191.
of chapter 71 of title 5, United States Code (as amended by this
title), to the extent that any such provision is inconsistent with this
paragraph.
(b) The pay and pay practices relating to employ^ees referred to in
paragraph (1) of this subsection shall be negotiated m accordance with
prevailing rates and pay practices without regard to any provision of—
(A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is inconsistent with
this paragraph;
(B) subchapter IV of chapter 53 and subchapter V of chapter
5 use 5341,
55 of title 5, United States Code; or
5541.
(C) any rule, regulation, decision, or order relating to rates of
pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code.
T I T L E VIII—GRADE AND P A Y RETENTION
GRADE AND PAY RETENTION

5 use 5301
^^ •^^9-

SEC. 801. (a) (1) Chapter 53 of title 5, United States Code, relating
to pay rates and systems, is amended by inserting after subchapter V
thereof the following new subchapter:

"SUBCHAPTER VI—GRADE AND PAY RETENTION '
5 use 5361.

5 use 5342.
5 use 5102.

5 use 5343.
Ante, p. 1180.
iff

1'^ I

Ǥ536L Definitions
"For the purpose of this subchapter—
" (1) 'employee' means an employee to whom chapter 51 of this
title applies, and a prevailing rate employee, as defined by section
5342(a)(2) of this title, whose employment is other than on a
temporary or term basis;
"(2) 'agency' has the meaning given it by section 5102 of this
title;
"(3) 'retained grade' means the grade used for determining
benefits to which an employee to whom section 5362 of this title
applies is entitled;
"(4) 'rate of basic pay' means, in the case of a prevailing rate
employee, the scheduled rate of pay determined under section 5343
of this title;
"(5) 'covered pay schedule' means the General Schedule, any
prevailing rate schedule established under subchapter IV of this
chapter, or the merit pay system under chapter 54 of this title;
"(6) 'position subject to this subchapter' means any position
under a covered pay schedule; and
"C^) 'reduction-in-force procedures' means procedures applied
in carrying out any reduction in force due to a reorganization, due
to lack of funds or curtailment of work, or due to any other factor.

PUBLIC LAW 95-454—OCT. 13, 1978
**§ 5362. Grade retention following a change of positions or reclassification
"(a) Any employee—
"(1) who is placed as a result of reduction-in-force procedures
from a position subject to this subchapter to another position
which is subject to this subchapter and which is in a lower grade
than the previous position, and
"(2) who has served for 52 consecutive weeks or more in one
or more positions subject to this subchapter at a grade or grades
hig'her than that of the new position,
is entitled, to the extent provided in subsection (c) of this section,
to have the grade of the position held immediately before such placement be considered to be the retained grade of the employee in anv
position he holds for the 2-year period beginning on the date of such
placement.
"(b) (1) Any employee who is in a position subject to this subchapter and whose position has been reduced in grade is entitled, to the
extent provided in subsection (c) of this section, to have the grade of
such position before reduction be treated as the retained grade of such
employee for the 2-year period beginning on the date of the reduction
in grade.
' (2) The provisions of paragraph (1) of this subsection shall not
apply with respect to any reduction in the grade of a position which
had not been classified at the higher grade for a continuous period of
at least one year immediately before such reduction.
"(c) For the 2-year period referred to in subsections (a) and (b) of
this section, the retained grade of an employee under such subsection
(a) or (b) shall be treated as the grade of the employee's position for
all purposes (including pay and pay administration under this chapter
and chapters 54 and 55 of this title, retirement and life insurance under
chapters 83 and 87 of this title, and eligibility for training and promotion under this title) except—
"(1) for purposes of subsection (a) of this section,
"(2) for purposes of applying any reduction-in-force procedures,
"(3) for purposes of determining whether the employee is covered by the merit pay system established under section 5402 of
this title, or
"(4) for such other purposes as the Office of Personnel Management may provide by regulation.
"(d) The foregoing provisions of this section shall cease to apply to
an employee who—
"(1) has a break in service of one workday or more;
" (2) is demoted (determined without regard to this section) for
personal cause or at the employee's request;
"(3) is placed in, or declines a reasonable offer of, a position the
grade of which is equal to or higher than the retained grade; or
"(4) elects in writing to have the benefits of this section
terminate.
**§ 5363. Pay retention
"(a) Any employee—
"(1) who ceases to be entitled to the benefits of section 5362 of
this title by reason of the expiration of the 2-year period of coverage provided under such section;
"(2) who is in a position subject to this subchapter and who is
subject to a reduction or termination of a special rate of pay established under section 5303 of this title; or

92 STAT. 1219
5 USC 5362.

*'

' • "
'• •

^ •
^^,

Ante, p. 1180.
5 USC 5501.
5 USC 8301,
8701.

Ante, p. 1181.

!.- .

5 USC 5363.

5 USC 5303.

92 STAT. 1220
i;-Hc ,»dJ f";

PUBLIC LAW 95-454—OCT. 13, 1978

"^3^ ^}jQ ig [j^ Q^ position subject to this subchapter and who
(but for this section) would be subject to a reduction in pay under
circumstances prescribed by the Office of Personnel Management
by regulation to warrant the application of this section;
is entitled to basic pay at a rate equal to (A) the employee's allowable
former rate of basic pay, plus (B) 50 percent of the amount of each
increase in the maximum rate of basic pay payable for the grade of
the employee's position immediately after such reduction in pay if such
allowable former rate exceeds such maximum rate for such grade.
"(b) For the purpose of subsection (a) of this section, 'allowable
former rate of basic pay' means the lower of—
"(1) the rate of basic pay payable to the employee immediately
before the reduction in pay; or
"(2) 160 percent of the maximum rate of basic pay payable for
the grade of the employee's position immediately after such reduction in pay.
"(c) The preceding provisions of this section shall cease to apply to
an employee who—•
" (1) has a break in service of one workday or more;
"(2) is entitled by operation of this subchapter or chapter 51,
5 use 5101,
53, or 54 of this title to a rate of basic pay which is equal to or
5301.
higher than, or declines a reasonable offer of a position the rate
Ante, p. 1180.
^f basic pay for which is equal to or higher than, the rate to which
the employee is entitled under this section; or
"(3) is demoted for personal cause or at the employee's request.
5 use 5364.
"§ 5364. Remedial actions
"Under regulations prescribed by the Office of Personnel Management, the Office may require any agency—
,jj
^
"(1) to report to the Office information with respect to vacan• .V • ' / "
cies (including impending vacancies) ;
u I ''I
"(2) to take such steps as may be appropriate to assure
^^'!,
employees receiving benefits under section 5362 or 5363 of this
title have the opportunity to obtain necessary qualifications for
the selection to positions which would minimize the need for the
application of such sections;
"(3) to establish a program under which employees receiving
i.. ; , j^,^
benefits under section 5362 or 5363 of this title are given priority
in the consideration for or placement in positions whidh are equal
to their retained grade or pay; and
"(4) to place certain employees, notwithstanding the fact their
previous position was in a different agency, but only in circumstances in which the Office determines the exercise of such
authority is necessary to carry out the purpose of this section.
5 use 5365.
Ǥ 5365. Regulations
"(a) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.
" (b) Under su(^h regulations, the Office may provide for the application of all or portions of the provisions of this subchapter—
>dt:<; Jfeu .
"(1) to any individual reduced to a grade of a covered pay
schedule from a position not subject to this subchapter;
" (2) to individuals to whom such provisions do not otherwise
apply; and
"(3) to situations the application to which is justified for purposes of carrying out the mission of the agency or agencies
involved.
.
.
,
.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1221

"§ 5366. Appeals
"(a) (1) In the case of the termination of any benefits available to
an employee under this subchapter on the grounds such employee
declined a reasonable offer of a position the grade or pay of which
was equal to or greater than his retained grade or pay, such termination may be appealed to the OflSice of Personnel Management
under procedures prescribed by the Office.
"(2) Nothing in this subchapter shall be construed to affect the
right of any employee to appeal—
"(A) under section 5112(b) or 5346(c) of this title, or otherwise, any reclassification of a position; or
"(B) under procedures prescribed by the Office of Personnel
Management, any reduotion-in-force action.
"(b) For purposes of any appeal procedures (other than those
described in subsection (a) of this section) or any grievance procedure
negotiated under the provisions of chapter 71 of this title—
" (1) any action which is the basis of an individual's entitlement
to benefits under this subchapter, and
" (2) any termination of any such benefits under this subchapter,
shall not be treated as appealable under such appeals procedures or
grievable under such grievance procedure.".
(2) Sections 5334(d), 5337, and 5345 of title 5, United States Code,
are hereby repealed.
(3) (A) Chapter 53 of title 5, United States Code, is amended—
(i) by redesignating subchapter V I as subchapter VII, and
(ii) by redesignating sections 5361 throug'h 5365 as sections
5371 through 5375, respectively.
(B) (i) The analysis of chapter 53 of title 5, United States Code, is
amended by striking out the items relating to subchapter V I thereof
and inserting in lieu thereof the following:
"SUBCHAPTER VI—GRADE AND PAY RETENTION

"Sec.

Ante, p. 1192.

Repeal,
5 USC 5301
^^ ^^9-

j
t

"Sec.

"5361. Definitions.
"5362. Grade retention following a change of positions or reclassification.
"5363. Pay retention.
"5364. Remedial actions.
"5365. Regulations.
"5366. Appeals.
1> «. . - . i"SUBCHAPTER VII—MISCELLANEOUS PROVISIONS

5 USC 5366.

,.

/

"5371. Scientific and professional positions.
"5372. Administrative law judges.
"5373. Limitation on payfixedby administrative action.
,,
"5374. Miscellaneous positions in the executive branch.
"5375. Police force of National Zoological Park.".
(ii) The analysis of such chapter is further amended by striking out
the items relating to sections 5337 and 5345, respectively.
(iii) Sections 559 and 1305 of title 5, United States Code, are each
amended by striking out "5362," each place it appears and inserting
"5372," in lieu thereof.
(C) Section 3104(b) of title 5, United States Code, as redesignated Ante, p. 1178.
by this Act, is amended by striking out "section 5361" and inserting
"section 5371" in lieu thereof.
(D) Section 5102(c) (5) of title 5, United States Code, is amended
by striking out "section 5365" and inserting "section 5375" in lieu
thereof.

92 STAT. 1222

PUBLIC LAW 95-454—OCT. 13, 1978

(E) Sections 5107 and 8704(d)(1) of title 5, United States Code,
are each amended by striking out "section 5337" and inserting in lieu
5 use 5361.
thereof "subchapter VI of chapter 53".
(F) Section 5334(b) of title 5, United States Code, is amended by
striking out "section 5337 of this title" each place it appears and
inserting in lieu thereof "subchapter VI of this chapter".
(G) Section 5334 of title 5, United States Code, is amended by
redesignating subsections (e) and (f) as subsections (d) and (e),
respectively.
(H) Section 5349(a) of title 5, United States Code, is amended—
(i) by striking out "section 5345, relating to retention of pay,"
and inserting in lieu thereof "subchapter VI of this chapter,
relating to grade and pay retention,";
(ii) by striking out "section 5345 of this title" and inserting in
lieu thereof "subchapter VI of this chapter"; and
(iii) by striking out "paragraph (2) of section 5345(a)" and
Ante, p. 1218.
inserting in lieu thereof "section 5361 (1)".
(I) Sections 4540(c), 7212(a), and 9540(c) of title 10, United
States Code, are each amended by inserting after "of title 5" the following : "and subchapter VI of chapter 53 of such title 5".
(J) Section 1416(a) of the Act of August 1. 1968 (Public Law
90^48; 15 U.S.C. 1715(a)), and section 808(c) of the Act of April
11, 1968 (Public Law 90-284; 42 U.S.C. 3608(b)), are each amended
by striking out "5362," and inserting in lieu thereof "5372,".
5 use 5361 note.
(4) (A) The amendments made by this subsection shall take effect
on the first day of the first applicable pay period beginning on or after
the 90th day after the date of the enactment of this Act.
(B) An employee who was receiving pay under the provisions of
section 5334(d), 5337, or 5345 of title 5, United States Code, on the
day before the effective date prescribed in subparagraph (A) of this
paragraph shall not have such pay reduced or terminated by reason
of the amendments made by this subsection and, unless section 5362 of
Ante, p. 1218.
such title 5 (as amended by subsection (a) (1) of this section) applies,
such an employee is entitled to continue to receive pay as authorized
by tliose provisions (as in effect on such date).
5 use 5362 note.
(b)(1) Under regulations prescribed by the Office of Personnel
Management, any employee—
(A) whose grade was reduced on or after January 1,1977, and
before the effective date of the amendments made by subsection
(a) of this section under circumstances which would have entitled
the employee to coverage under the provisions of section 5362 of
title 5, United States Code (as amended by subsection (a) of this
section) if such amendments had been in effect at the time of the
reduction; and
(B) who has remained employed by the Federal Government
from the date of the reduction in grade to the effective date of the
amendments made by subsection (a) of this section without a
break in service of one workday or more;
shall be entitled—
„ .
(i) to receive the additional pay and benefits which such
* ''' ^ '^'
employee would have been entitled to receive if the amendments
made by subsection (a) of this section had been in effect during
the period beginning on the effective date of such reduction in
grade and ending on the day before the effective date of such
amendments, and
(ii) to have the amendments made by subsection (a) of this
section apply to such employee as if the reduction in grade had
occurred on the effective date of such amendments.

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1223

(2) No employee covered by this subsection whose reduction in grade
resulted in an increase in pay shall have such pay reduced by reason
of the amendments made by subsection (a) of this section.
(3) (A) For purposes of this subsection, the requirements under
paragraph (1) (B) of this subsection, relating to continuous employment following reduction in grade, shall be considered to be met in the
case of any employee—
(i) who separated from service with a right to an immediate
annuity under chapter 83 of title 5, United States Code, or under 5 USC 8301 et
another retirement system for Federal employees; or
seq.
(ii) who died.
(B) Amounts payable by reason of subparagraph (A) of this paragraph in the case of the death of an employee shall be paid in accordance with the provisions of subchapter V I I I of chapter 55 of title 5,
United States Code, relating to settlement of accounts in the case of
deceased employees.
- sa t ,
(4) The Office of Personnel Management shall have the same authority to prescribe regulations under this subsection as it has under section
5365 of title 5, United States Code, with respect to subchapter V I
of chapter 53 of such title, as added by subsection (a) of this section.
T I T L E IX—MISCELLANEOUS
STUDY ON DECENTRALIZATION OF GOVERNMENTAL

FUNCTIONS

SEC. 901. (a) As soon as practicable after the effective date of this
Act, the Director of the Office of Management and Budget shall conduct a detailed study concerning the decentralization of Federal governmental functions.
(b) The study to be conducted under subsection (a) of this section
shall include—
(1) a review of the existing geographical distribution of Federal governmental functions throughout the United States,
including the extent to which such functions are concentrated in
the District of Columbia; and
(2) a review of the possibilities of distributing some of the functions of the various Federal agencies currently concentrated in the
District of Columbia to field offices located at points throughout
the United States.
Interested parties, including heads of agencies, other Federal employees, and Federal employee organizations, shall be allowed to submit
views, arguments, and data in connection with such study.
(c) Upon completion of the study under subsection (a) of this
section, and in any event not later than one year after the effective
date of this Act, the Director of the Office of Management and Budget
shall submit to the President and to the Congress a report on the
results of such study together with his recommendations. Any recommendation which involves the amending of existing statutes shall
include draft legislation.

Study.
31 USC 18 notes,

••'" ^'^'' ^"'-"

Report to 0MB,
President and
Congress,

SAVINGS PROVISIONS

SEC. 902. (a) Except as otherwise provided in this Act, all executive 5 USC 1101 note:,
orders, rules, and regulations affecting the Federal service shall continue in effect, according to their terms, until modified, terminated,
superseded, or repealed by the President, the Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment
Opportunity Commission, or the Federal Labor Kelations Authority
with respect to matters within their respective jurisdictiona

92 STAT. 1224

PUBLIC LAW 95-454—OCT. 13, 1978
(b) No provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be
issued in such proceedings and appeals shall be taken therefrom as if
this Act had not been enacted.
(c) No suit, action, or other proceeding lawfully commenced by
or against the Director of the Office of Personnel Management or
the members of the Merit Systems Protection Board, or officers or
employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act, shall abate by reason of the enactment of this
Act. Determinations with respect to any such suit, action, or other
proceeding shall be made as if this Act had not been enacted.

* C i-B )6

AUTHORIZATION OF APPROPRIATIONS

5 use 5509 note.

SEC. 903. There are authorized to be appropriated, out of any
moneys in the Treasury not otherwise appropriated, such sums as may
be necessary to carry out the provisions of this Act.
POWERS OF PRESIDENT UNAFFECTED EXCEPT BY EXPRESS PROVISIONS

5 use 1101 note.

SEC. 904. Except as otherwise expressly provided in this Act, no
provision of this Act shall be construed to—
(1) limit, curtail, abolish, or terminate any function of, or
authority available to, the President which the President had
»feat<*
immediately before the effective date of this Act; or
-'.tsn Si :y&} it
(2) limit, curtail, or terminate the President's authority to
delegate, redelegate, or terminate any delegation of functions.
REORGANIZATION PLANS

5 use 1101 note.

SEC. 905. Any provision in either Reorganization Plan Numbered 1
or 2 of 1978 inconsistent with any provision in this Act is hereby
superseded.
, ,,.^ ,; .; u.fj •..,. .. . .
T E C H N I C A L A N D CONFORMING

Ante, p. 1218.
;
" "*"
Ante, p. 1216.
m>i* lOl r -^ll t

AMENDMENTS

SEC. 906. (a) Title 5, United States Code, is amended—
(1) in section 5347, 8713, and 8911, by striking out "Chairman
of the Civil Service Commission" and inserting in lieu thereof
"Director of the Office of Personnel Management";
(2) in sections 1301, 1302, 1304, 1308, 2105, 2951, 3110, 3304a,
3308, 3312, 3314, 3318, 3324, 3325, 3344, 3351, 3363, 3373, 3502,
3504, 4102, 4106, 4113-4118, 5102, 5103, 5105, 5107, 5110-5115,
5303, 5304, 5333, 5334, 5335(b), 5336, 5338, 5343, 5346, 5347, 5351,
5352, 5371 (as redesignated in section 801(a) (3) (A) (ii) of this
Act), 5372 (as redesignated in such section 801(a) (3) (A) (ii)),
5374 (as redesignated in such section 801(a) (3) (A) (ii)), 5504,
5533, 5545, 5548, 5723, 6101, 6304-6306, 6308, 6311, 6322, 6326,
7203 (as redesignated in section 703(a)(1) of this Act), 7204
(as redesignated in such section 703(a) (1)), 7312,8151,8331,8332,
8334, 8337, 8339-8343, 8345, 8346, 8347(a), 8348, 8501, 87018712,_ 8714, 8714a, 8716, 8901-8903, 8905, 8907-8910, and 8913, by
striking out "Civil Service Commission" and inserting in lieu
thereof "Office of Personnel Management";
(3) in sections 1302, 1304, 1308, 2951, 3304a, 3308, 3312, 3317b,
3318, 3324, 3351, 3363, 3504, 4106, 4113-4115, 4117, 4118, 5105,
5107, 5110-5112, 5114, 5333, 5343, 5346, 5545, 5548. 5723, 6304,
6405, 7312, 8331, 8332, 8337, 8339-8343, 8345, 8346, 8347(a)-(c)

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1225

and ( e ) - ( h ) , 8348, 8702, 8704-8707, 8709-8712, 8714a, 8716,89018903, 8905, 8907, 8909, 8910, and 8913 (as such sections are
amended in paragraph (2) of this subsection), by striking out
^ ^^ i •> •
"Commission" each place it appears and inserting in lieu thereof
"Office";
(4) in sections 1303, 8713 (as amended in paragraph (1) of
this subsection), and 8911 (as amended in such paragraph), by
striking out "Commission" and inserting in lieu thereof "Office";
(5) in section 3304(d), by striking out "a Civil Service Commission board of examiners" and inserting in lieu thereof "the
Office of Personnel Management";
(6) in sections 1505-1508 and 3383, by striking out "Civil
Service Commission" and "Commission" each place they appear
and inserting in lieu thereof "Merit Systems Protection Board"
and "Board", respectively;
(7) in section 1504, by striking out "Civil Service Commission.
On receipt of the report, or on receipt of other information which
seems to the Commission to warrant an investigation, the Commission shall" and inserting in lieu thereof the following: "Special Counsel. On receipt of the report or on receipt of other
information which seems to the Special Counsel to warrant an
investigation, the Special Counsel shall investigate the report
and such other information and present his findings and any
charges based on such findings to the Merit Systems Protection
Board, which shall".
(8) in section 5335(c) —
(A) by striking out "Commission" the first place it
. ^ .
appears and inserting in lieu thereof "Office of Personnel
Management";
(B) by striking out "Commission" the second place it
appears and inserting in lieu thereof "Merit Systems Protection Board"';
:
(C) by striking out "Commission" the third place it
appears and inserting in lieu thereof "Office"; and
(D) by striking out "Commission" the fourth place it
appears and inserting in lieu thereof "Board";
(9) in section 8347(d), by striking out "Commission" the first
place it appears and inserting in lieu thereof "Merit Systems Protection Board" and by striking out "Commission" the second time
it appears and inserting in lieu thereof "Board";
(10) in section 552(a) (4) ( F ) —
(A) by_ striking out "Civil Service Commission" and
"Commission" each place they appear and inserting in lieu
thereof "Special Counsel"; and
(B) by striking out "its" and inserting in lieu thereof
"his";
(11) in section 1303—
(A) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management,
Merit Systems Protection Board, and Special Counsel"; and
(B) in paragraph (1), by striking out "Commission" and
inserting in lieu thereof "Office of Personnel Management";
(12) in section 1305, by striking out "For the purpose of sections 3105, 3344, 4301(2) ( E ) , 5362, and 7521 of this title and the Ante, p. 1131,
provisions of section 5335(a) (B) of this title that relate to 1219,1137.
administrative law judges the Civil Service Commission may"
and inserting in lieu thereof "For the purpose of section 3105,
3344, 4301(2) (D), and 5372 of this title and the provisions of

92 STAT. 1226

Ante, p. 1137.

Repeal.

Ante, p. 1161.

PUBLIC LAW 95-454—OCT. 13, 1978
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";
(13) in section 1306, to read as follows: "The Director of the
Office of Personnel Management and authorized representatives
of the Director may administer oaths to witnesses in matters
pending before the Office.";
(14) in section 8344(a), by striking out "Commission" and
insertm^ in lieu thereof "Office of Personnel Management";
(15) m section 8906, by striking out "Commission" each place
it appears and inserting in lieu thereof "Office of Personnel Management" the first time it appears and "Office" the other times it
appears;
(16) in the section heading for section 2951 and in the item
relating to section 2951 in the analysis for chapter 29, by striking
out "Civil Service Commission" and inserting in lieu thereof
"Office of Personnel Management"; and
(17) in the section heading for section 5112 and in the item
relating to section 5112 in the analysis for chapter 51, by striking
out "Civil Service Commission" and inserting in lieu thereof
"Office of Personnel Management".
(b)(1) Section 5109(b) of title 5, United States Code, is hereby
repealed.
(2) Section 5109 of such title is further amended by redesignating
subsection (c) as subsection (b).
(c) (1) Subchapter V I I I of chapter 33 of title 5, United States Code
(as in effect immediately before the date of the enactment of this Act)
is amended—
(A) by striking out the subchapter heading and inserting in
lieu thereof the following:
"CHAPTER 34—PART-TIME CAREER EMPLOYMENT
OPPORTUNITIES
"Sec.
"3401.
"3402.
"3403.
"3404.
"3405.
"3406.
"3407.
"3408.

AfJi

Definitions.
Establishment of part-time career employment programs.
Limitations.
Personnel ceilings.
Nonapplicability.
Regulations.
Reports.
,
.
Employee organization representation." ;
>

,-

and
(B) by redesignating sections 3391 through 3398 as sections
3401 through 3408, respectively.
(2) (A) Section 3401 of such title 5 (as redesignated by this section)
is amended by striking out "subchapter" and inserting m lieu thereof
"chapter".
(B) Section 3402 of such title 5 (as redesignated by this section) is
amended—
(i) in subsection (a) (1) (B), by striking out "section 3393" and
inserting in lieu thereof "section 3403";
(ii) in subsection (b) (1) —
(I) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management"; and
(II) by striking out "subchapter" and inserting in lieu
thereof "chapter"; and
i'
(iii) in subsection (b)(2), by striking out "Commission" and
inserting in lieu thereof "Office".

PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1227

(C) Sections 3405 and 3406 of such title 5 (as redesignated by this
section) are amended by striking out "subchapter" each place it occurs
and inserting in lieu thereof "chapter".
(D) Section 3407(a) of such title 5 (as redesignated by this section)
is amended—
(i) by striking out "Civil Service Commission" and inserting
in lieu thereof "Office of Personnel Management";
(ii) in paragraph (1), by striking out "section 3392" and inserting in lieu thereof "section 3402"; and
(iii) in paragraph (2), bv striking out "subchapter" and inserting in lieu thereof "chapter".
(E) Section 3407(b) of such title 5 (as redesignated by this section)
is amended—
(i) by striking out "Commission" and inserting in lieu thereof
"Office"; and
(ii) by striking out "subchapter" each place it appears and
inserting in lieu thereof "chapter".
(F) Sections 8347(g), 8716(b) (3), 8913(b) (3), and 8906(b) (3) of
such title 5 are each amended by striking out "section 3391 (2)" and
inserting in lieu thereof "section 3401 (2)".
(G) Section 8716(b) (3) of such title 5 is amended by striking out
"section 3391 (2)" and mserting in lieu thereof "section 3401 (2)".
(H) Section 8913(b) (3) of such title 5 is amended by striking out
"section 3391(2)" and inserting in lieu thereof "section 3401(2)".
(3) Section 5 of the Federal Employees Part-Time Career Employ- 5 USC 3407 note,
ment Act of 1978 is amended by striking out "section 3397(a)" and Ante, p. 1059.
inserting in lieu thereof "section 3407 (a)".
(4) The analysis for chapter 33 of title 5, United States Code, is
amended by striking out the items (as in effect immediately before
the date of the enactment of this Act) following the item relating to
section 3385.
(5) The chapter analysis for part I I I of title 5, United States Code
. ,
is amended by inserting after the item relating to chapter 33 the
following new item:
"34. Part-time career employment opportunities
3401".
..

EFFECTIVE DATE

SEC. 907. Except as otherwise expressly provided in this Act, the 5 USC 1101 note,
provisions of this Act shall take effect 90 days after the date of the
enactment of this Act.
Approved October 13, 1978.
LEGISLATIVE HISTORY;
HOUSE REPORTS: No. 95-1403 accompanying H.R. 11280 (Comm. on Post Office and
Civil Service) and No. 95-1717 (Comm. of Conference).
SENATE REPORTS:, No. 95-969 (Comm. on Governmental Affairs) and No. 95-1272
(Comm. of Conference).
CONGRESSIONAL RECORD, Vol. 124 (1978):
Aug. 11, H.R. 11280 considered in House.
Aug. 24, considered and passed Senate.
Sept. 7, 11, 13, H.R. 11280 considered and passed House; proceedings vacated
and S. 2640, amended, passed in lieu.
Oct. 4, Senate agreed to conference report.
Oct. 5, 6, House agreed to conference report; receded from amendment.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 41:
Oct. 13, Presidential statement.

39-194 O—80—pt. 1

81 : QL3

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