§ 713.218. When the complaint has not been resolved within this limit, the complainant may appeal to the Commission for a review of the reasons for the delay. Upon review of this appeal, the Commission may require the agency to take special measures to insure prompt processing of the complaint or may accept the appeal for consideration under § 713.234. (b) The head of the agency or his designee may cancel a complaint if the complainant fails to prosecute the complaint without undue delay. However, instead of canceling for failure to prosecute, the complaint may be adjudicated if sufficient information for that purpose is available. (E.O. 11491, 3 CFR, 1969 Comp.) [34 F.R. 5370, Mar. 19, 1969, as amended at 35 F.R. 14917, Sept. 25, 1970] § 713.221 Decision by head of agency or designee. (a) The head of the agency, or his designee, shall make the decision of the agency on a complaint based on information in the complaint file. A person designated to make the decision for the head of the agency shall be one who is fair, impartial, and objective. (b) (1) The decision of the agency shall be in writing and shall be transmitted by letter to the complainant and his representative. (2) When there has been a hearing on the complaint, the decision letter shall transmit a copy of the findings, analysis, and recommended decision of the appeals examiner under § 713.218(g) and a copy of the hearing record. The decision of the agency shall adopt, reject, or modify the decision recommended by the appeals examiner. If the decision is to reject or modify the recommended decision, the decision letter shall set forth the reasons for rejection or modification. (3) When there has been no hearing and no decision under § 713.217 (c), the decision letter shall set forth the findings, analysis, and decision of the head of the agency or his designee. (c) The decision of the agency shall require any remedial action authorized by law determined to be necessary or desirable to resolve the issues of discrimination and to promote the policy of equal opportunity. (d) The decision letter shall inform the complainant of his right to appeal the decision of the agency to the Com The agency shall establish a complaint file containing all documents pertinent to the complaint. The complaint file shall include copies of (a) the written report of the Equal Employment Opportunity Counselor under § 713.213 to the Equal Employment Opportunity Officer on whatever precomplaint counseling efforts were made with regard to the complainant's case, (b) the complaint, (c) the investigative file, (d) if the complaint is withdrawn by the complainant, a written statement of the complainant or his representative to that effect, (e) if adjustment of the complaint is arrived at under § 713.217, the written record of the terms of the adjustment, (f) if no adjustment of the complaint is arrived at under § 713.217, a copy of the letter notifying the complainant of the proposed disposition of the complaint and of his right to a hearing, (g) if decision is made under § 713.217(c), a copy of the letter to the complainant transmitting that decision, (h) if a hearing was held, the record of the hearing, together with the appeals examiner's findings, analysis, and recommended decision on the merits of the complaint, (i) if the Director of Equal Employment Opportunity is not the designee, the recommendations, if any, made by him to the head of the agency or his designee, and (j) if decision is made under § 713.221, a copy of the letter transmitting the decision of the head of the agency or his designee. The complaint file shall not contain any document that has not been made available to the complainant or to his designated physician under § 294.401 of this chapter. (E.O. 11491; 3 CFR, 1969 Comp., p. 191) F.R. 14917, Sept. 25, 1970] APPEAL TO THE COMMISSION § 713.231 [35 (a) Except as provided by paragraph (b) of this section, a complainant may appeal to the Commission the decision of the head of the agency, or his designee: (1) To reject his complaint because (i) it was not timely filed, or (ii) it was not within the purview of the agency's regulations; or (2) To cancel his complaint (i) because of the complainant's failure to prosecute his complaint, or (ii) because of the complainant's separation which is not related to his complaint; or (3) On the merits of the complaint, under § 713.217(c) or § 713.221, but the decision does not resolve the complaint to the complainant's satisfaction. (b) A complainant may not appeal to the Commission under paragraph (a) of this section when the issue of discrimination giving rise to the complaint is being considered, or has been considered, in connection with any other appeal by the complainant to the Commission. [34 F.R. 5371, Mar. 19, 1969] The complainant shall file his appeal in writing, either personally or by mail, with the Board of Appeals and Review, U.S. Civil Service Commission, Washington, D.C. 20415. 134 F.R. 5371, Mar. 19, 1969] § 713.233 Time limit. (a) Except as provided in paragraph (b) of this section, a complainant may file an appeal at any time after receipt of his agency's notice of final decision on his complaint but not later than 15 calendar days after receipt of that notice. (b) The time limit in paragraph (a) of this section may be extended in the discretion of the Board of Appeals and Review, upon a showing by the complainant that he was not notified of the prescribed time limit and was not otherwise aware of it or that circumstances beyond his control prevented him from filing an appeal within the prescribed time limit. [34 F.R. 5371, Mar. 19, 1969] § 713.234 Appellate procedures. The Board of Appeals and Review shall review the complaint file and all relevant written representations made to the board. The board may remand a complaint to the agency for further investigation or a rehearing if it considers that action necessary or have additional investigation conducted by Commission personnel. This subpart applies to any further investigation or rehearing resulting from a remand from the board. There is no right to a hearing before the board. The board shall issue a written decision setting forth its reasons for the decision and shall send copies thereof to the com plainant, his designated representative, and the agency. When corrective action is ordered, the agency shall report promptly to the board that the corrective action has been taken. The decision of the board is final, and there is no further right to appeal. [34 F.K. 5371, Mar. 19, 1969] § 713.235 Review by the Commissioners. The Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: (a) New and material evidence is available that was not readily available when the previous decision was issued; (b) The previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy; or (c) The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand, or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. [34 F.R. 11537, July 12, 1969] § 713.236 Relationship to other appeals. When the basis of the complaint of discrimination because of race, color, religion, sex or national origin involves an action which is otherwise appealable to the Commission, the case, including the issue of discrimination, will be processed under the regulations appropriate to that appeal when the complainant makes a timely appeal to the Commission in accordance with those regulations. [34 F.R. 5371, Mar. 19, 1969] REPORTS TO THE COMMISSION 102 of title 5, United States Code, and executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, United States Code, and to the employees thereof, including employees paid from nonappropriated funds, and (2) to those portions of the legislative and judicial branches of the Federal Government and the government of the District of Columbia having positions in the competitive service and to the employees in those positions. (b) This subpart does not apply to aliens employed outside the limits of the United States. [34 F.R. 5371, Mar. 19, 1969, as amended at 34 F.R. 14024, Sept. 4, 1969] § 713.302 Agency systems. (a) Each agency shall establish a system which provides statistical employment information by race or national origin. (b) Data shall be collected only by visual identification and shall be disclosed only in the form of gross statistics. An agency shall not collect or maintain any information of the race or national origin of individual employees except when an automated data processing system is used in accordance with standards and requirements prescribed by the Commission to insure individual privacy and the separation of that information from personnel records. (c) Each system is subject to the following controls: (1) Only those categories of race and national origin prescribed by the Commission may be used; (2) Only the specific procedures for the collection and maintenance of data that are prescribed or approved by the Commission may be used; (3) The Commission shall review the operation of the agency system to insure adherence to Commission procedures and requirements. An agency may make an exception to the prescribed procedures and requirements only with the advance written approval of the Commission. (d) The agency may use the data only in studies and analyses which contribute affirmatively to achieving the objectives of the equal employment opportunity program. An agency shall not establish a quota for the employment of persons on the basis of race, color, religion, sex, or national origin. (e) An agency shall report to the Commission on employment by race and na tional origin in the form and at such times as the Commission may require. [34 F.R. 5371, Mar. 19, 1969, as amended at 34 F.R. 14024, Sept. 4, 1969] Subpart D-Equal Opportunity Without Regard to Politics, Marital Status, or Physical Handicap § 713.401 Equal opportunity without regard to politics, marital status, or physical handicap. (a) In appointments and position changes. In determining the merit and fitness of a person for competitive appointment or appointment by noncompetitive action to a position in the competitive service, an appointing officer shall not discriminate on the basis of the person's political affiliations, except when required by statute, or marital status, nor shall he discriminate on the basis of a physical handicap with respect to any position the duties of which may be efficiently performed by a person with the physical handicap. (b) In adverse actions and termination of probationers. An agency may not take an adverse action against an employee covered by Part 752 of this chapter, nor effect the termination of a probationer under Part 315 of this chapter, (1) for political reasons, except when required by statute, (2) that is based on discrimination because of marital status, or (3) for physical handicap with respect to any position the duties of which may be efficiently performed by a person with the physical handicap. [34 F.R. 5372, Mar. 19, 1969] § 715.201 Applicability. This subpart applies to separation actions requested by employees in the executive departments and independent establishments of the Federal Government, including Government-owned or controlled corporations, and in those portions of the legislative and judicial branches of the Federal Government and the government of the District of Columbia having positions in the competitive service. § 715.202 Resignation. (a) General. An employee is free to resign at any time, to set the effective date of his resignation, and to have his reasons for resigning entered in his official records. (b) Withdrawal of resignation. A resignation is binding on an employee once he has submitted it, except that the agency, in its discretion, may permit the employee to withdraw his resignation at any time before it has become effective. an appointee for any of the following reasons: (a) Dismissal from employment for delinquency or misconduct; (b) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct; (c) Intentional false statement or deception or fraud in examination or appointment; (d) Refusal to furnish testimony as required by § 5.3 of this chapter; (e) Habitual use of intoxicating beverages to excess; (f) Reasonable doubt as to the loyalty of the person involved to the Government of the United States; or (g) Any legal or other disqualification which makes the individual unfit for the service. Subpart C-Suitability Rating Actions § 731.301 Jurisdiction. (a) Appointments subject to investigation. (1) In order to establish an appointee's qualifications and suitability for employment in the competitive service, every appointment to a position in the competitive service is subject to investigation by the Commission, except: (i) Promotion; (ii) Demotion; (iii) Reassignment; (iv) Conversion from career-conditional to career tenure; (v) Appointment, or conversion to an appointment, made by an agency of an employee of that agency who has been serving continuously with that agency for at least one year in one or more positions in the competitive service under an appointment subject to investigation; (vi) Reinstatement effected within one year from the date of separation from Federal civilian employment or from honorable separation from military service, provided the one-year, subject-toinvestigation period applied to the previous appointment has expired; and (vii) Transfer, provided the one-year, subject-to-investigation period applied to the previous appointment has expired. (2) Appointments are subject to investigation to continue the Commission's jurisdiction to investigate the qualifications and suitability of an applicant after appointment and to authorize the Commission to require removal when it finds the appointee is disqualified for Federal employment. The subject-toinvestigation condition may not be construed as requiring an employee to serve a new probationary or trial period or as extending the probationary or trial period of an employee. (b) Duration of condition. The subject-to-investigation condition expires automatically at the end of 1 year after the effective date of appointment, except in a case involving intentional false statement or deception or fraud in examination or appointment. § 731.302 Actions against employees by the Commission. (a) For a period of 1 year after the effective date of an appointment subject to investigation under § 731.301, the Commission may instruct an agency to remove an appointee when it finds that he is not qualified or is unsuitable for any of the reasons cited in § 731.201. Part 754 of this chapter does not apply to this action. (b) Thereafter, the Commission may require the removal of an employee on the basis of intentional false statement or deception or fraud in examination or appointment. Part 754 of this chapter applies to this action. (c) An action to remove an appointee or employee taken pursuant to an instruction by the Commission is not subject to Part 752 of this chapter. Part 752 of this chapter applies when removal or other disciplinary action covered by that part is initiated by an agency. § 731.303 Debarment. When a person is disqualified for any reason named in § 731.201, the Commission, in its discretion, may deny that person examination for and appointment to a competitive position for a period of not more than 3 years from the date of determination of disqualification. On expiration of the period of debarment, the person who has been debarred may not be appointed to any position in the competitive service until his fitness for appointment has been redetermined by the Commission. Subpart D-Appeals and Reem- § 731.401 Reemployment eligibility of certain former Federal employees. (a) Request for suitability determination. When an employee has been removed by an agency on charges (other than security or loyalty) or has resigned on learning the agency planned to prefer charges, or while charges were pending, the former employee may request the Commission to determine his eligibility for further employment in the competitive service, insofar as his suitability and fitness are concerned. The Commission shall consider the request only if the former employee: (1) Has completed any required pro(2) Has basic eligibility for reinstatebationary period; ment; and, (3) Includes a sworn statement with the request which sets forth fully and in detail the facts surrounding his removal or resignation. (b) Action by Commission. (1) After appropriate consideration, including such investigation as the Commission considers necessary, the Commission shall inform the former employee whether it has found him suitable for further employment in the competitive service. (2) If the former employee is found unsuitable and has had an opportunity to comment on the reasons for this finding, or has furnished them to the Commission, it may cancel his reinstatement eligibility if that eligibility resulted from his last Federal employment and was obtained through fraud. In addition, the Commission may prescribe a period of debarment from the competitive service not to exceed 3 years. (c) Time limits for submitting requests. The Commission may consider a case under this section only if it is submitted to the Commission within 6 months after the date of separation, or 60 calendar days after the date of the last adverse decision as a result of an appeal, whichever is later. The Commission may extend this time limit on a showing by the former employee that circumstances beyond his control prevented him from filing his request within the prescribed period. PART 732-PERSONNEL SECURITY AND RELATED PROGRAMS Subpart A-[Reserved] Subpart B-[Reserved] Subpart C-[Reserved] Subpart D-Security and Related Determinations § 732.401 Reemployment eligibility of certain former Federal employees. (a) Request. A former employee who was terminated, or who resigned while suspended or while charges were pend |