(a) Notice of proposed adverse action. (1) Except as provided in paragraph (c) of this section, an employee against whom adverse action is sought is entitled to at least 30 full days' advance written notice stating any and all reasons, specifically and in detail, for the proposed action.

(2) Subject to the provisions of subparagraph (3) of this paragraph, the material on which the notice is based and which is relied on to support the reasons in that notice, including statements of witnesses, documents, and investigative reports or extracts therefrom, shall be assembled and made available to the employee for his review. The notice shall inform the employee where he may review that material.

(3) Material which cannot be disclosed to the employee, or to his designated physician under § 294.401 of this chapter, may not be used by an agency to support the reasons in the notice.

(b) Employee's answer. Except as provided in paragraph (c) of this section, an employee is entitled to a reasonable time for answering a notice of proposed adverse action and for furnishing affidavits in support of his answer. The time to be allowed depends on the facts and circumstances of the case, and shall be sufficient to afford the employee ample opportunity to review the material relied on by the agency to support the reasons in the notice and to prepare an answer and secure affidavits. The agency shall provide the employee a reasonable amount of official time for these purposes if he is otherwise in an active duty status. If the employee answers, the agency shall consider his answer in reaching its decision. The employee is entitled to answer personally, or in writing, or both personally and in writing. The right to answer personally includes the right to answer orally in person by being

given a reasonable opportunity to make any representations which the employee believes might sway the final decision ɔn his case, but does not include the right to a trial or formal hearing with examination of witnesses. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear his answer. The representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend what final decision should be made.

(c) Exceptions to notice period and opportunity to prepare answer. (1) Advance written notice and opportunity to answer are not necessary in cases of furlough without pay due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or emergencies requiring immediate curtailment of activities.

(2) When there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed, the agency is not required to give the employee the full 30 days' advance written notice, but shall give him such less number of days advance notice and opportunity to answer as under the circumstances is reasonable and can be justified.

(d) Duty status during notice period. Except as provided in paragraph (e) of this section, an employee against whom adverse action is proposed is entitled to be retained in an active duty status during the notice period. When circumstances are such that the retention of the employee in an active duty status in his position may result in damage to Government property or may be detrimental to the interests of the Government or injurious to the employee, his fellow workers, or the general public, the agency may temporarily assign him to duties in which these conditions will not exist or place him on leave with his consent.

(e) Suspensions during notice period. In an emergency case when, because of the circumstances described in paragraph (d) of this section, an employee cannot be kept in an active duty status during the notice period, the agency may suspend him. This suspension is a separate adverse action. An employee whose suspension under this paragraph

is proposed is entitled, in connection with the suspension, to the following:

(1) If the suspension is for more than 30 days, to the procedures required by this subpart;

(2) If the suspension is for 30 days or less and the employee is covered under § 752.301, to the procedures required by Subpart C of this part; or

(3) If the suspension is for 30 days or less and the employee is in the excepted service and not covered by § 752.301, to a written notice at least 24 hours in advance of the effective date of the suspension. The agency shall include in the notice of suspension the reasons for not retaining the employee in an active duty status during the notice period. If the employee appeals from the final adverse decision, the Commission reviews the reasons for not retaining him in an active duty status to determine their consonance with the circumstances described in paragraph (d) of this section. The agency may place the employee in a nonduty status with pay for such time, not to exceed 5 days, as is necessary to effect the suspension.

(f) Notice of adverse decision. The employee is entitled to notice of the agency's decision at the earliest practicable date. The agency shall deliver the notice of decision to the employee at or before the time the action will be made effective. The notice shall be in writing, be dated, and inform the employee:

(1) Which of the reasons in the notice of proposed adverse action have been found sustained and which have been found not sustained;

(2) Of his right of appeal to the appropriate office of the Commission;

(3) Of any right of appeal to the agency under Subpart B of Part 771 of this chapter, including the person with whom, or the office with which, such an appeal shall be filed;

(4) Of the time limit for appealing as provided in § 752.204;

(5) Of the restrictions on the use of appeal rights as provided in § 752.205; and

(6) Where he may obtain information on how to pursue an appeal.

[33 F.R. 12491, Sept. 4, 1968, as amended at 35 F.R. 14918, Sept. 25, 1970]

§ 752.203 Right of appeal to the Commission.

An employee is entitled to appeal to the Commission from an adverse action covered by this subpart. The appeal shall

be in writing and shall set forth the employee's reasons for contesting the adverse action, with such offer of proof and pertinent documents as he is able to submit.

[35 F.R. 14918, Sept. 25, 1970]

§ 752.204 Time limit for initial appeal.

(a) Except as provided in paragraphs (b) and (c) of this section and § 752.205, an employee may submit an appeal at any time after receipt of the notice of adverse decision but not later than 15 days after the adverse action has been effected.

(b) When a postmaster appointed by the President and confirmed by the U.S. Senate is notified of an adverse decision to remove him and is continued in office until a successor can be installed, the time limit on an appeal is 15 days after the adverse action has been effected.

(c) The Commission or the agency, as appropriate, may extend the time limit on an appeal to it when the appellant shows that he was not notified of the time limit and was not otherwise aware of it, or that he was prevented by circumstances beyond his control from appealing within the time limit.

(a) An appeal to the agency and an appeal to the Commission from the same original decision may not be processed concurrently.

(b) An employee who appeals first to the Commission within the prescribed time limit forfeits his right of appeal to the agency.

(c) An employee who appeals first to the agency within the prescribed time limit may appeal to the Commission only after receipt of an agency appellate decision, except that if no agency appellate decision has been made within 60 days from the date of filing the appeal to the agency, the employee may elect to terminate that appeal by appealing to the Commission.

[35 F.R. 14918, Sept. 25, 1970] Subpart C-Suspensions of 30 Days or Less Coverage.

§ 752.301

(a) Employees covered. This subpart applies to:

(1) (1) Any career, career-conditional, overseas limited, indefinite, or term em

ployees, or any employee serving under a career executive assignment, in a competative position who is not serving a probationary or trial period, and (ii) any employee serving in a competitive position who has completed 1 year of current continuous employment except one serving under a temporary appointment with a definite time limitation or a limited executive assignment; and

(2) Any employee having a competitive status who occupies a position in Schedule B of Part 213 of this chapter under a nontemporary appointment.

(b) Adverse actions covered. This subpart applies to suspensions of 30 days or less.

(c) Exclusions. This subpart does not apply to an employee or adverse action excluded by § 752.103.

[33 F.R. 12491, Sept. 4, 1968, as amended at 35 F.R. 3217, Feb. 20, 1970]

§ 752.302 Procedures.

(a) Notice of proposed suspension. An employee whose suspension is sought is entitled to an advance written notice stating the reasons, specifically and in detail, for the proposed action.

(b) Employee's answer. An employee is entitled to a reasonable time for filing a written answer to the notice of proposed suspension and for furnishing affidavits in support of his answer. If the employee answers, the agency shall consider the answer in reaching its decision.

(c) Notice of suspension. The employee is entitled to notice of the agency's decision at the earliest practicable date. The agency shall deliver the notice of decision to the employee at or before the time the action will be made effective. The notice shall be in writing, inform the employee of the reasons for the suspension, inform the employee of his right of appeal to the appropriate office of the Commission, and inform him of the time limit within which an appeal may be submitted as provided in § 752.304 (c). § 752.303 Emergency procedures.

In an emergency case, when circumstances are such that the retention of an employee in an active duty status in his position may result in damage to Government property or may be detrimental to the interests of the Government or injurious to the employee. his fellow workers, or the general public, the agency may require the employee to

answer the charges and submit affidavits within such time as under the circumstances would be reasonable, but not less than 24 hours. When these circumstances require immediate action, the agency may place the employee in a nonduty status with pay for such time, not to exceed 5 days, as is necessary to effect the suspension.

§ 752.304 Appeal rights to the Commission.

(a) Right of appeal. An employee is entitled to appeal to the Commission from the agency's decision to suspend him. The appeal shall be in writing.

(b) Scope of review. (1) On appeal, the Commission reviews the procedures used in a suspension under this subpart and only those matters referred to in subparagraphs (2), (3), and (4) of this paragraph.

(2) When an employee alleges that a suspension was taken as the result of discrimination on grounds of race, color, religion, sex, or national origin, the Commission refers the allegation of discrimination to the agency for investigation of that issue and a report thereon to the Commission.

(3) When an employee alleges that the suspension was taken against him for political reasons not required by statute, or resulted from discrimination because of marital status, or from improper discrimination because of physical handicap, the Commission determines the validity of the allegation and takes appropriate action when indicated

(4) When a suspension was imposed during the advance notice period of some adverse action covered by Subpart B of this part, the Commission reviews the reasons for not retaining the employee in an active duty status if the employee appeals from the final adverse action.

(c) Time limit. An employee may submit an appeal at any time after receipt of the notice of adverse decision but not later than 15 calendar days after the suspension has been effected. The Commission may extend the time limit in this paragraph when the appellant shows that he was not notified of the time limit and was not otherwise aware of it, or that he was prevented by circumstances beyond his control from appealing within the time limit.

[33 F.R. 12491, Sept. 4, 1968, as amended at 34 F.R. 5372, Mar. 19, 1969]

Subpart D-Reversals of Adverse

§ 752.401

Actions

Agency action when Commission recommends restoration or other corrective action.

(a) It is mandatory that the agency take all corrective action recommended in the Commission's initial decision on an appeal unless it makes a timely appeal to the Board of Appeals and Review.

(b) The decision of the Board is final and compliance with its recommendation for corrective action is mandatory.

§ 752.402 Agency reversal of certain adverse decisions.

When an employee who has been reduced in grade or pay is restored to his former grade or rate of pay or to an intermediate grade or rate of pay as the result of an agency decision that its action under Subpart B of this part was unjustified or unwarranted, the agency shall make the restoration retroactively effective to the date of the improper action.

(a) Coverage. This part sets forth the procedures to be followed when the Director of the Commission's Bureau of Personnel Investigations or his designee (referred to in this part as the Director), acting under authority of § 5.4 or § 731.302(b) of this chapter, instructs an agency to remove or take other disciplinary action against an employee in the competitive service who was appointed subject to investigation under § 731.301 of this chapter and who has currently served more than 1 year under other than a temporary appointment with a

definite time limitation or a limited executive assignment.

(b) Definition. In this part, "days" means calendar days and not workdays. [33 F.R. 12494, Sept. 4, 1968, as amended at 35 F.R. 3217, Feb. 20, 1970]

§ 754.102 Notice of proposed action.

The Director shall notify the employee in writing of the proposed action and of the charges against him. The notice shall state any and all reasons, specifically and in detail, for the proposed action. The Director shall send a copy of this notice to the employing agency. The employee is entitled to at least 30 full days' advance notice of the proposed action, and to be retained in an active duty status during the notice period. § 754.103

Answer.

(a) Employee's answer. An employee may answer the charges either orally in person, or in writing, or both, and furnish affidavits in support of his answer. The time limit for filing an answer is 15 days from the date the employee receives the notice. The Director shall consider any answer that the employee makes in reaching his decision.

(b) Agency's answer. In actions proposed under § 5.4 of this chapter, the agency may also answer the notice of proposed adverse action. The time limit for filing an answer is 15 days from the date the agency receives a copy of the notice. The Director shall consider any answer that the agency makes in reaching his decision.

(a) An employee may appeal an adverse decision of the Director to the Appeals Examining Office. The appeal shall be in writing and shall set forth the employee's reasons for contesting the adverse decision, with such offer of proof and pertinent documents as he is able to submit.

(b) The time limit for filing an appeal is 15 days from the date the employee receives the notice of adverse decision.

COMMISSION ACTION

771.312 Employee requests for review. 771.313 Review of grievance systems.

AUTHORITY: The provisions of this Part 771 issued under 5 U.S.C. 1302, 3301, 3302, E.O. 10577; 3 CFR, 1954-1958 Comp., p. 218, E.O.. 10987; 3 CFR, 1959-1963 Comp., p. 519.

SOURCE: The provisions of this Part 771 appear at 35 F.R. 14918, Sept. 25, 1970; 35 F.R. 15803, Oct. 8, 1970, unless otherwise noted.

Subpart A-General Provisions § 771.101

Purpose.

(a) "Appeal" means a request by an employee for reconsideration of a decision to take adverse action against him.

(b) "Appellate decision" means a decision made by an appellate level which completes action on an appeal at that level by sustaining the original decision, reversing the original decision, or modifying the original decision by substituting a less severe action.

(c) "Appellate level" means an agency administrative level with authority to act on an appeal which specifically includes the authority to sustain the orig-