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120 Day Rule, Your Rights and Obligations

Although the Trump Administration has been in office for five months, the presidential transition remains an ongoing process. Nominees are starting to move through the Senate confirmation process and appointees are settling into other agency positions. With political leaders now starting to pass 120 days in office, and the administration in the midst of implementing M-17-22 on government reorganization and workforce reduction, SEA has prepared a primer on the law that governs the rights of career SESers in connection with reassignments within and outside of your commuting area.

Reassignment Inside the Commuting Area, 5 U.S.C. § 3395(a)

A career appointee may be reassigned to any SES position in the same agency (or to another agency with the approval of the receiving agency) for which the appointee is qualified if the appointee receives notice of the reassignment at least fifteen (15) days before the effective date.

Reassignment Outside the Commuting Area, 5 U.S.C. § 3395(a)(2)(B)

A career appointee may NOT be reassigned to a SES position outside the appointee’s commuting area:

  • UNLESS: the agency consults with the appointee on the reasons for the reassignment and the appointee’s preferences with respect to the proposed reassignment prior to providing written notice of the reassignment, including a statement of reasons for it, at least sixty (60) days before the effective date of reassignment.
  • Consultation need not be an actual dialogue; the notice need not explain why your preferences were rejected; and failure to consult and obtain preferences is usually easily cured by the agency by rescinding the initial notice, consulting, and reissuing a new notice.
  • Notice of reassignment may be waived with written consent of the appointee

Involuntary Reassignment, 5 U.S.C. § 3395(e) -  Additional prohibition on all involuntary reassignments

A career appointee in an agency may not be involuntarily reassigned:

  • Within 120 days after an appointment of the head of the agency; or
  • Within 120 days after the appointment in the agency of the career appointee’s most immediate supervisor who is a noncareer appointee and has the authority to make an initial appraisal of the career appointee’s performance.
    • UNLESS: any senior executive receiving an unsatisfactory rating in a performance appraisal shall be reassigned or transferred within the SES, or removed from the SES
    • UNLESS: disciplinary action is initiated before the appointment of the head of the agency, or the appointment of the appointee’s most immediate supervisor referenced above.
  • Any days (up to 60) spent serving pursuant to a detail or other temporary assignment apart from a regular position shall not be counted in determining the number of days that have elapsed since the appointment.

Involuntary Removal Limitations, 5 U.S.C. § 3592(b)

Career appointees may not be involuntarily removed from the SES:

  • Within 120 days after an appointment of the head of an agency
  • Within 120 days after the appointment in the agency of the career appointee’s most immediate supervisor who is a noncareer appointee and has the authority to remove the career appointee
    • UNLESS: a senior executive received an unsatisfactory rating before an appointment, referenced to above
    • UNLESS: the disciplinary action was initiated before an appointment referred to above

5 C.F.R. § 359.406(c) adds two additional exceptions: 

  • (1) For a disciplinary action when there is reasonable cause to believe that the career appointee has committed a crime for which a sentence of imprisonment can be imposed; or
  • (2) For a disciplinary action when the circumstances are such that retention of the career appointee
    1. May pose a threat to the appointee or others;
    2. May result in loss of or damage to Government property;
    3. May otherwise jeopardize legitimate Government interests.

Rights Upon Use of Exception, 5 C.F.R. § 359.406(d)

When an agency invokes an exception to the 120-day restriction:

  1. The agency must include in the notice the reasons for invoking the exception.
  2. The appointee must be granted a reasonable time, but no less than seven days, to respond regarding the propriety of the use of the exception.
  3. The agency shall give the appointee a notice of decision on the propriety of the use of the exception at or before the time the action will be effective.
  4. When circumstances require immediate action, the agency may place the appointee in a nonduty status with pay for such time as necessary to effect the action.

In sum, by accepting a career appointment into the Senior Executive Service (SES), you agreed to be subject to involuntary reassignments. Thus, SES reassignments are not subject to agency grievance procedures, and refusal to accept the reassignment is a legal basis for removal from federal service.

If you believe a reassignment was because of a Title VII protected category, such as race, color, gender, national origin, age, or disability, you may have a claim that your reassignment was based on unlawful EEO discrimination. However, filing an EEO claim will not likely stay the reassignment effective date.

If you believe a reassignment constitutes a prohibited personnel practice (PPP) you may consider filing a complaint with the Office of Special Counsel (OSC). Usually, however, the filing of a PPP complaint will not stay the reassignment effective date.

Looking for more detailed information about the rules, rights and obligations governing personnel actions during a transition?