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Title 5 — Government Organization and EmployeesRelease 119-73

§3392 General appointment provisions

Title 5 › Part PART III— - EMPLOYEES › Subpart Subpart B— - Employment and Retention › Chapter CHAPTER 33— - EXAMINATION, SELECTION, AND PLACEMENT › Subchapter SUBCHAPTER VIII— - APPOINTMENT, RE­ASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE SENIOR EXECUTIVE SERVICE › § 3392

Last updated Apr 6, 2026|Official source

Summary

Agency leaders must create qualification rules for every Senior Executive Service (SES) job. Rules for career-reserved SES jobs must follow the Office of Personnel Management (OPM). Rules for other SES jobs must be made after talking with OPM. No more than 30 percent of the lawfully allowed SES jobs can be filled by people who did not have five years of continuous civil service right before their first SES appointment, unless the President tells Congress the limit would hurt government efficiency. Gaps in service of three days or less do not count as breaks. A career SES employee who is appointed by the President with Senate approval to a civilian executive job outside the SES that pays as much as or more than level V of the Executive Schedule can choose to keep SES rules for basic pay, performance awards, rank awards, severance pay, leave, and retirement while serving in that Presidential job. OPM will set how and when to make that choice. The same choice is allowed when the new job is covered by the Executive Schedule or has pay fixed by law at an Executive Schedule level. Appointing or removing someone in an SES job at an independent regulatory commission cannot be reviewed or approved by anyone in the Executive Office of the President.

Full Legal Text

Title 5, §3392

Government Organization and Employees — Source: USLM XML via OLRC

(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)(1)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—
(A)to the extent provided under regulations prescribed by the Office, and
(B)so long as the appointee continues to serve under such Presidential appointment.
(2)An election under paragraph (1) may also be made by any career appointee who is appointed to a civilian position in the executive branch—
(A)which is not in the Senior Executive Service; and
(B)which is covered by the Executive Schedule, or the rate of basic pay for which is fixed by statute at a rate equal to 1 of the levels of the Executive Schedule.
(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.

Legislative History

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Executive Schedule, referred to in subsec. (c), is set out as section 5311 et seq. of this title.

Prior Provisions

A prior section 3392, added Pub. L. 95–437, § 3(a), Oct. 10, 1978, 92 Stat. 1056, which related to the establishment of part-time career employment programs, was renumbered as section 3402 of this title by Pub. L. 95–454, title IX, § 906(c)(1)(B), Oct. 13, 1978, 92 Stat. 1226.

Amendments

1990—Subsec. (c). Pub. L. 101–335 designated existing provisions as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date

of 1990 Amendment Pub. L. 101–335, § 7(b)(1), July 17, 1990, 104 Stat. 325, provided that: “The

Amendments

made by this section [amending this section] shall take effect on the date of enactment of this Act [July 17, 1990].”

Effective Date

Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through 412 of Pub. L. 95–454, see section 415(a)(1), (b) of Pub. L. 95–454, set out as an

Effective Date

note under section 3131 of this title. Election by Persons Previously Appointed; Retroactive Performance Awards Pub. L. 101–335, § 7(b)(2), (3), July 17, 1990, 104 Stat. 325, as amended by Pub. L. 102–378, § 7(a), Oct. 2, 1992, 106 Stat. 1359, provided that: “(2) Election by persons previously appointed.—The Office of Personnel Management shall prescribe

Regulations

(including procedures and deadlines) under which an election under section 3392(c)(2) of title 5, United States Code (as amended by this section) may be made by any individual who—“(A) on the date of enactment of this Act [
July 17, 1990], is serving in a civilian position in the executive branch which—“(i) is not in the Senior Executive Service; and “(ii) satisfies section 3392(c)(2)(B) of such title 5 (as so amended); “(B) was appointed to that position on or after
November 1, 1986, and has served continuously in such position since then; “(C) was a career appointee (within the meaning of section 3132(a)(4) of such title 5) immediately before having been so appointed; and “(D) was not, based on such individual’s appointment to the position described in subparagraph (A), eligible to make an election under section 3392(c) of such title 5 (as then in effect). An election under this paragraph shall be effective as of the date of appointment to the position described in subparagraph (A). “(3) Retroactive performance awards.—If an individual elects under paragraph (2) to continue to be subject to performance awards, the head of the agency in which such individual is serving shall determine whether to grant retroactive performance awards for any fiscal years prior to fiscal year 1991 to such individual, and the amount of any such awards, without regard to the provisions of subsection (b) of section 5383 of title 5, United States Code, and subsections (b) and (c) of section 5384 of such title. Before granting an award, the head of the agency shall make a written determination that the individual’s performance during the fiscal year for which the award is given was at least fully successful, and shall consider the recommendation of the agency’s performance review board with respect to the award. No such award for performance during any fiscal year may be less than 5 percent nor more than 15 percent of the individual’s rate of basic pay as of the end of such fiscal year.” [Pub. L. 102–378, § 7(b), Oct. 2, 1992, 106 Stat. 1359, provided that: “The amendment made by subsection (a) [enacting section 7(b)(3) of Pub. L. 101–335, set out above] shall be effective as if enacted as a part of section 7 of the Thrift Savings Plan Technical

Amendments

Act of 1990 [Pub. L. 101–335].” ]

Reference

Citations & Metadata

Citation

5 U.S.C. § 3392

Title 5 — Government Organization and Employees

Last Updated

Apr 6, 2026

Release point: 119-73