initially and for which he is qualified before consideration is given to other candidates. If the individual is not selected, the agency shall record the reasons for nonselection. If no vacancy exists, the agency shall give him this priority consideration for the next vacancy for which he is qualified. This priority shall take precedence over priorities provided under other regulations in this chapter.

(3) This paragraph shall be cited as the authority under which the abovedescribed appointments or awards of backpay shall be made.

(4) A period of retroactivity or a period for which backpay is awarded under this paragraph may not extend from a date earlier than 2 years prior to the date on which the complaint was initially filed by the applicant. If a finding of discrimination was not based on a complaint, the period of retroactivity or period for which backpay is awarded this paragraph may not extend earlier than 2 years prior to the date the finding of discrimination was recorded.

(b) Remedial action involving an employee. When an agency, or the Commission, finds that an employee of the agency was discriminated against and as a result of that discrimination was denied an employment benefit, or an administrative decision adverse to him was made, the agency shall take remedial actions which shall include one or more of the following, but need not be limited to these actions:

(1) Retroactive promotion, with backpay computed in the same manner prescribed by § 550.804 of this chapter, when the record clearly shows that but for the discrimination the employee would have been promoted or would have been employed at a higher grade, except that the backpay liability may not accrue from a date earlier than 2 years prior to the date the discrimination complaint was filed, but, in any event, not to exceed the date he would have been promoted. If a finding of discrimination was not based on a complaint, the backpay liability may not accrue from a date earlier than 2 years prior to the date the finding of discrimination was recorded, but, in any event, not to exceed the date he would have been promoted.

(2) Consideration for promotion to a position for which he is qualified before consideration is given to other candidates when the record shows that discrimination existed at the time selection

for promotion was made but it is not clear that except for the discrimination the employee would have been promoted. If the individual is not selected, the agency shall record the reasons for nonselection. This priority consideration shall take precedence over priorities under other regulations in this chapter.

(3) Cancellation of an unwarranted personnel action and restoration of the employee.

(4) Expunction from the agency's records of any reference to or any record of an unwarranted disciplinary action that is not a personnel action.

(5) Full opportunity to participate in the employee benefit denied him (e.g., training, preferential work assignments, overtime scheduling).

RIGHT TO FILE A CIVIL ACTION

An employee or applicant is authorized by section 717 (c) of the Civil Rights Act, as amended, 84 Stat. 112, to file a civil action in an appropriate U.S. district · court:

(a) Within thirty (30) calendar days of his receipt of notice of final action taken by his agency on a complaint.

(b) After one hundred-eighty (180) calendar days from the date of filing a complaint with his agency if there has been no decision.

(c) Within thirty (30) calendar days of his receipt of notice of final action taken by the Commission on his complaint, or,

(d) After one hundred-eighty (180) calendar days from the date of filing an appeal with the Commission if there has been no Commission decision. [37 F.R. 25699, Dec. 2, 1972]

§ 713.282 Notice of right.

An agency shall notify an employee or applicant of his right to file a civil action, and of the 30-day time limit for filing, in any final action on a complaint under §§ 713,215, 713.217, 713.220, or § 713.221. The Commission shall notify an employee or applicant of his right to file a civil action, and of the 30-day time limit for filing, in any decision under § 713.234. [37 F.R. 22717, Oct. 21, 1972, as amended at 37 F.R. 25699, Dec. 2, 1972]

(a) This subpart applies (1) to military departments as defined in section 102 of title 5, United States Code, Executive agencies (other than the General Accounting Office) as defined in section 105 of title 5, United States Code, the U.S. Postal Service, and the Postal Rate Commission, 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 employee 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; 36 F.R. 11999, June 24, 1971]

§ 713.302 Agency systems.

(a) Each agency shall establish 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

(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 national 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]

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.

[33 F.R. 12482, Sept. 4, 1968]

§ 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. Except as provided in this paragraph, a resignation is binding on an employee once he has submitted it. An agency, in its discretion, may permit the employee to withdraw his resignation at any time before it has become effective. An agency may decline a request to withdraw a resignation before it has become effective only when it has a valid reason and explains that reason to the employee. A valid reason includes, but is not limited to, administrative disruption or the hiring or commitment to hire a replacement. Avoidance of adverse action proceedings is not a valid reason.

[33 F.R. 12482, Sept. 4, 1968, as amended at 36 F.R. 9765, May 28, 1971]

AUTHORITY: The provisions of this Part 731 issued under 5 U.S.C. 3301, 3302, 7301, E.O. 10577; 3 CFR, 1954-1958 Comp., p. 218, E.O. 11222; 3 CFR, 1964-1965 Comp., p. 306, unless otherwise noted.

SOURCE: The provisions of this Part 731 appear at 33 F.R. 12483, Sept. 4, 1968, unless otherwise noted.

Subpart A-[Reserved]
Subpart B-Suitability
Disqualifications

§ 731.201

Reasons for disqualification.

Subject to Subpart C of this part, theCommission may deny an applicant examination, deny an eligible appointment, and instruct an agency to remove 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 peri

od 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 Reemployment Eligibility

§ 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,

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 pending, from a department or agency of the Government under a statute or executive order authorizing termination in the interest of national security, in the interest of the United States, or on grounds relating to loyalty, and authorizing the Commission to determine his eligibility for employment in another department or agency of the Government, may request the Commission in writing to determine whether he is eligible for employment in another department or agency of the Government.

(b) Action by the Commission. (1) The Commission shall determine, and will notify the former employee, after appropriate consideration of his case, including such investigation as it considers necessary, whether he may be employed in another department or agency of the Government.

(2) If a former Federal employee found unsuitable under this section has had an opportunity to comment on the reasons for the action, or has furnished them to the Commission or to his former employing agency, the Commission may also cancel his reinstatement eligibility if the eligibility resulted from his last Federal employment and was obtained through fraud, or the Commission may prescribe a period of debarment from the competitive service, not to exceed 3 years, or both.

(5 U.S.C. 3301, 3302, 7312, 50 U.S.C. 403, E.O. 10450; 3 CFR, 1949-1953 Comp., p. 936, E.O. 10577; 3 CFR, 1954-1958 Comp., p. 218) F.R. 12484, Sept. 4, 1968]

[33

733.121

PROHIBITED ACTIVITIES

Use of official authority; prohibi