DOJ 1351.3

REDUCTION IN FORCE IN THE SENIOR EXECUTIVE SERVICE

Approval Date:		February 16, 1983
Approved By:		EDWARD C. SCHMULTS Deputy Attorney General
Distribution:		BUR/H-1; SPL-2; OBD/H-1
Initiated By:		Justice Management Division Office of Personnel and Administration

FOREWORD

1. PURPOSE. To establish policy and procedures for conducting a reduction in force (RIF) among career members of the Senior Executive Service (SES) in the Department of Justice (DOJ).

2. SCOPE. This order explains RIF of career appointees in the SES as provided under the Omnibus Budget Reconciliation Act of 1981, Public Law 97-35 (5 U.S.C. 3595). The chapters define DOJ procedures in implementing the provisions of the Act as amended by P.L. 97-296 and describe their use.

3. EFFECTIVE DATE. The provisions of this order are effective immediately.

  / s / EDWARD C. SCHMULTS

Deputy Attorney General

TABLE OF CONTENTS

CHAPTER 1. REDUCTION IN FORCE IN THE SENIOR EXECUTIVE SERVICE.
1.Policy.
2.Coverage.
3.Use of Regulation.

CHAPTER 2. RETENTION FACTORS.
4.Coverage.
5.Competitive Area.
6.Competitive Levels.
7.Effective Date of Performance Appraisal.
8.Retention Registers
9.Maintenance of Registers.

CHAPTER 3. RELEASE FROM COMPETITIVE LEVEL.
10.Coverage.
11.Order of Release.

CHAPTER 4. PLACEMENT RIGHTS.
12.Coverage.
13.General.
14.Procedures.

CHAPTER 5. REMOVAL.
15.Coverage.
16.Probationary Appointees.
17.Non-Probationary Appointees.

CHAPTER 6. REINSTATEMENT RIGHTS.
18.General.
19.Probationary Employee.

CHAPTER 7. RIF NOTICE.
20.Coverage.
21.General Notice.
22.Specific Notice.

CHAPTER 8. RIF APPEALS.
23.Coverage.
24.General.  

CHAPTER 1. REDUCTION IN FORCE IN THE SENIOR EXECUTIVE SERVICE.

1. POLICY. It is the policy of the Department to make the most effective use of all Senior Executive Service (SES) members of the Department and to aggressively pursue continuing employment in the Department for any career executive who may be adversely affected by Reduction in Force (RIF) as defined in this chapter.

2. COVERAGE. The provisions of this chapter apply to career appointees in the SES within the Department. The provisions of this chapter do not apply to noncareer or limited SES employees.

3. USE OF REGULATION.

   1. Definition of RIF. RIF is defined under 5 United States Code (U.S.C.) 3595(d) as including the elimination or modification of a position due to a reorganization, due to a lack of funds or curtailment of work, or due to any other factor. "Any other factor" would include:

      (1)	A determination that a position no longer meets the definition for an SES position in 5 U.S.C. 3132(a) because of a change in duties or responsibilities, or because of a finding that the position was incorrectly designated at the SES level;
      (2)	A withdrawal of SES spaces by the Office of Personnel Management (OPM); or
      (3)	A total organization shutdown.

   2. Use of RIF Procedures. The competitive procedures established by this chapter are required only when it is necessary to determine who must be released from the competitive level. An organization must utilize the Preliminary Placement Process described in (c) below before invoking the competitive RIF procedures established in this order.

   3. Preliminary Placement Process. Once it is determined that an SES member's position will be abolished or modified in such a way that it could result in the application of the competitive RIF procedures, there will be a 30-day period during which the SES members whose actual position is affected will be given Departmentwide priority placement consideration for available positions for which qualified. It is the policy of the Department to offer affected employees vacant SES positions for which they are qualified.

      (1)	To invoke this Preliminary Placement Process, the organization effecting the change which would result in impact on the SES member's position must provide the Executive Secretary, Senior Executive Resources Board (SERB), with a written discussion of the organizational changes covering the RIF situation as well as an explanation for non-placement in an SES position within the employing organization.
      (2)	If it is determined that the Preliminary Placement Process should be invoked based on written discussion provided by the employing organization, then the Executive Personnel Unit, Office of the Deputy Assistant Attorney General for Personnel and Administration, Justice Management Division, will review current vacancies and, on behalf of the SERB, refer the affected SES member for positions throughout the Department for which he/she is qualified.
      (3)	Non-selection of these priority referrals must be explained in writing to the SERB.
      (4)	If a non-selection is approved by the SERB, the competitive RIF procedures established in Chapter 3 will be initiated.

    

   CHAPTER 2. RETENTION FACTORS.

4. COVERAGE. This chapter covers the factors used to determine the retention standing of competing employees under the RIF procedures.

5. COMPETITIVE AREA. The competitive areas for RIF are described in Order DOJ 1351.1B, Competitive Areas for Reduction in Force.

6. COMPETITIVE LEVELS.

   1. Factors Considered in Establishing Competitive Levels. A competitive level consists of all the positions in a competitive area that are in the same occupation, or are so alike in technical qualification requirements that an employee in one position may be readily reassigned to another position without unduly interrupting the work of the program.

   2. Factors Considered in Establishing Retention Standing. Employees in the same competitive level are to be listed in the following basic groups in the descending order shown, based on the most recent official performance appraisal:

      (1)	Exceptional performance rating recipients.
      (2)	Excellent performance rating recipients.
      (3)	Fully Successful performance rating recipients.
      (4)	Probationary employees without an SES performance rating (Fully Successful presumption).
      (5)	Marginal performance rating recipients.
      (6)	Inadequate performance rating recipients.

      Within each group, employees who are current bonus recipients will be listed first, followed by those who did not receive bonuses. Ties will be broken by using previous year's SES performance ratings (not to exceed three previous years) beginning with the most recent. If after utilizing the previous three years' performance appraisals (combined with bonus consideration) a tie still exists, it will be broken in favor of the executive with the most continuous SES service and supergrade service.

   3. Approval for Establishing Competitive Levels. The SERB is responsible for approving competitive levels recommended by the Executive Secretary in consultation with the affected office, board, division, or bureau.

7. EFFECTIVE DATE OF PERFORMANCE APPRAISAL. An employee's current official performance appraisal on the date of issuance of a specific RIF notice is the appraisal that determines the employee's retention standing in the competitive level. Performance appraisals not officially approved and put on record until after the date of issuance of notice do not affect determination of the employee's retention standing.

8. RETENTION REGISTERS. The Executive Secretary, SERB, in consultation with the affected office, board, division, or bureau, establishes a retention register from current and past performance records of employees in each competitive level. Employees are listed on retention registers in the order prescribed in paragraph 6. All competing employees officially assigned to positions in a competitive level are listed on the retention register for that level. Employees who have received RIF notices are entitled to review the retention register and any related records for his/her own competitive level.

9. MAINTENANCE OF REGISTERS. The personnel office for each bureau and the personnel office for the offices, boards, and divisions will maintain the current, official records needed to determine the retention standing of competing employees. All records are to be kept for at least two years from the date the employee is issued a specific RIF notice.  

   CHAPTER 3. RELEASE FROM COMPETITIVE LEVEL.

10. COVERAGE. This chapter covers the release of an employee from his or her competitive level under the Department's RIF regulations.

11. ORDER OF RELEASE.

    1. General Order of Release. Competing employees are selected for release from their competitive level in the inverse order of their retention standing beginning with the employee having the lowest standing.

    2. Exceptions to Order of Release. A competing employee may be released from a retention register while an employee with lower retention standing is retained under the following exceptions:

       (1)	When all positions will be abolished within a competitive area within three months, employees may be released regardless of their retention standing. A RIF notice must note this fact and also give the date of abolishment of all positions.
       (2)	An exception may be made for an employee on a sabbatical or on an Intergovernmental Personnel Act assignment, to avoid the interruption or untimely termination of an assignment.

    3. Any request for an exception provided in this section must be made in writing to the Executive Secretary, SERB, for the SERB's approval.

    4. Each higher standing employee reached for release from the same retention register must be notified in writing of the reasons for use of the exception.
     

    CHAPTER 4. PLACEMENT RIGHTS.

12. COVERAGE. This chapter covers the rights of eligible SES appointees to placement when they are released from their competitive levels under the Department's RIF procedures.

13. GENERAL. All placement rights described in this chapter apply, as a matter of law, only to any career appointee who has successfully completed the SES probationary period, or who did not have to complete a probationary period because the appointee was a convertee to the SES. It is the policy of the Department, however, to afford the intra-Department placement procedures to all affected SES appointees.

14. PROCEDURES.

    1. Originating Organization. It is the primary responsibility of the organization causing the displacement of an SES appointee to place the SES member in a vacant SES position for which qualified. If this is feasible, normal approval procedures governing SES reassignment actions must be followed.

    2. Intra-Department. A covered career appointee who cannot be placed in his or her organization is to be placed in a vacant SES position within the Department for which he or she meets the technical qualifications. The SERB will make qualifications determinations on employees who are to be placed in vacant SES positions throughout the Department. In addition, the SERB will decide which vacant SES position is to be used to place an employee. When a covered career appointee must be placed outside his or her organization due to RIF procedures, the SES ceiling space allocation automatically reverts to the Departmental reserve. If needed, the organization placing the affected SES appointee will be given priority consideration for the space allocation.

    3. OPM. If there is no vacant SES position in the Department for which the career appointee is qualified, the Attorney General must personally certify this finding in writing to OPM. OPM then takes all reasonable steps to place the appointee in a vacant SES position in another agency for which the appointee qualifies. OPM may require an agency to take any action which it considers necessary to carry out a placement. The appointee is entitled to placement unless the head of an agency determines that he or she is not qualified for the position.

    4. Administration Fallback. It is the policy of the Department to grant career executives identified for separation from the SES through RIF fallback to a vacant GM- or GS-15 position, if one is available within the releasing organization for which the executive qualifies and for which he or she is eligible, utilizing normal reinstatement procedures.
     

    CHAPTER 5. REMOVAL.

15. COVERAGE. This chapter covers procedures for removal of career SES appointees who are identified for release from their competitive level by the Department's RIF procedures and are not placed by the required placement procedures, or who decline placement in an appropriate SES position.

16. PROBATIONARY APPOINTEES. A probationary SES appointee who is not placed through the intra-Department placement procedures of this order will be removed from the SES under 5 U.S.C. 3592(a) (1). Note, however, that 5 U.S.C. 3594(a) and (c) provide that a career appointee who was appointed from a position held under a career or career-conditional appointment (or an appointment of equivalent tenure) is, if otherwise eligible, entitled to be placed in a continuing GS-15 position.

17. NON-PROBATIONARY APPOINTEES.

    1. An appointee identified for RIF by the competitive procedures of the order who declines a directed reassignment approved by the Attorney General or other appropriate authority to an SES position for which qualified, shall be removed from the SES under 5 U.S.C. 7543(a).

    2. An appointee identified for RIF by the competitive procedures of this order who declines a reasonable offer of placement in an SES position in another department/agency through OPM placement efforts, shall be removed from the SES under 5 U.S.C. 3595(b)(4)(A).

    3. An appointee identified for RIF by the competitive procedures of this order who cannot be placed by OPM within 120 days of agency certification, shall be removed from the SES under 5 U.S.C. 3595(b)(4)(B). In the case of an appointee who held a career SES appointment as of May 31, 1981, removal may not take place until 30 days after OPM has notified Congress that placement was impossible.

    CHAPTER 6. REINSTATEMENT RIGHTS.

18. GENERAL. A former career SES appointee of the Department shall be reinstated without competition to any vacant SES position in the Department for which qualified if:

    1. The individual was a career SES appointee on May 31, 1981;

    2. The appointee was removed under the competitive RIF procedures of this order;

    3. The appointee had completed the SES probationary period or did not have to complete a probationary period because the appointee was a convertee to the SES; and

    4. The appointee applies for the specific vacant position within one year after OPM received certification from the agency that it could not place him or her in a RIF situation.

19. PROBATIONARY EMPLOYEE. A former probationary SES appointee removed by RIF must apply and compete under the general merit staffing procedures. There is no reinstatement eligibility until a career appointee completes the probationary period.  

    CHAPTER 7. RIF NOTICE.

20. COVERAGE. This chapter specifies the content of the notices given to a career SES appointee in a RIF.

21. GENERAL NOTICE.

    1. General. Each competing employee whose position has been identified for abolishment under this order must receive a written general notice which specifies that the effective date of release from his or her competitive level will be no sooner than 30 days from the date of the written notice.

    2. Contents. Each general notice must contain, as a minimum:

       (1 The action to be taken.

       (2) The effective date of the action.

       (3) Why the action is being taken.

       (4) Placement efforts to be taken.

       (5) When applicable, employee's eligibility for immediate retirement.

22. SPECIFIC NOTICE.

    1. General. Each competing employee identified for release from the competitive level under this order who could not be placed under the required procedures must receive a specific written notice explaining the necessity for the removal from the SES. This notice must be given to the employee at least five days before the effective date.

    2. Contents. Each specific notice must contain, as a minimum:

       (1)	The action to be taken.
       (2)	Effective date of the proposed separation or other action.
       (3)	Why the action is being taken.
       (4)	Competitive area.
       (5)	Competitive level.
       (6)	How placement of the appointee within the SES in the Department was attempted.
       (7)	The results of OPM's placement efforts for the 120 days required by law.
       (8)	If the employee was a career SES appointee on May 31, 1981, the requirement that OPM has to provide a 30-day notice to Congress prior to the employee's separation, and the employee's reinstatement rights in the Department under 5 U.S.C. 3593(c)(1) if the employee has completed the SES probationary period.
       (9)	When applicable, the employee's eligibility for immediate retirement.
       (10)	The place where the appointee may inspect the regulations and records pertinent to the action.
       (11)	The employee's appeal rights, including the time limit for the appeal and the location of the Merit Systems Protection Board office to which the appeal should be sent.
       (12)	When applicable, the employee's eligibility for severance pay.

     

    CHAPTER 8. RIF APPEALS.

23. COVERAGE. This chapter covers RIF appeals to the Merit Systems Protection Board initiated as a result of implementation of the Department's SES RIF procedures.

24. GENERAL.

    1. Any appointee may appeal under 5 U.S.C. 3595 (c)(1) whether the RIF complied with competitive procedures.

    2. An appointee who had completed an SES probationary period and was removed from the SES because he or she declined a reasonable OPM offer of a position in another agency may appeal the removal under 5. U.S.C. 3595(c) (2).

    3. An appointee who had completed an SES probationary period and was removed because he or she could not be placed by OPM may appeal under 5 U.S.C. 3595(c) (3) whether OPM took all reasonable steps to achieve placement.

    4. An appointee with reinstatement rights under Chapter 6 who had completed an SES probationary period and had been serving under a career SES appointment on May 31, 1981, may appeal under 5 U.S.C. 3593(c)(2) any determination by the Department that he or she is not qualified for a position following a reinstatement request.