---
kind: "range"
citation: "5 C.F.R. §§ 359.402–359.404"
title: "5"
from: "359.402"
to: "359.404"
count: 3
url: "https://uscodex.org/cfr/5/359.402..359.404"
---

# §359.402. Removal: Unacceptable performance.

- (a) **Coverage.** This section covers the removal of a career appointee from the SES during the probationary period for unacceptable performance.
- (b) **Basis for action.** A removal under this section need not be based upon a final rating under the agency's SES performance appraisal system established under [subpart C of part 430](/cfr/5/part430-subpartC.md) of this chapter. Even if a removal is based on such a rating, the removal action is taken under this section.
- (c) **Procedures.** The agency shall notify the appointee in writing before the effective date of the action. The notice shall, as a minimum—
  - (1) State the agency's conclusions as to the inadequacies of the appointee's performance;
  - (2) State whether the appointee has placement rights under [§ 359.701](/cfr/5/359.701.md) and, if so, identify the position to which the appointee will be assigned; and
  - (3) **Show the effective date of the action.**

# §359.403. Removal: Conduct.

- (a) **Coverage.**
  - (1) This section covers the removal of a career appointee from the SES during the probationary period for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
  - (2) This section does not apply, however, when the appointee was covered under [5 U.S.C. 7511](/usc/5/7511.md) immediately before appointment to the SES. In that case, the removal is subject to the provisions of [part 752](/cfr/5/part752.md), [subpart F](/cfr/5/subpartF.md), of this chapter.
- (b) **Procedures.** The agency shall notify the appointee in writing before the effective date of the action. The notice shall, as a minimum—
  - (1) State the basis for the removal action (including the act(s) of misconduct, neglect of duty, or malfeasance if those factors are involved); and
  - (2) **Show the effective date of the action.**

# §359.404. Removal: Conditions arising before appointment.

- (a) **Coverage.**
  - (1) This section covers the removal of a career appointee from the SES during the probationary period when the action is based in whole or in part on conditions arising before the appointment.
  - (2) This section does not apply, however, when the career appointee was covered under [5 U.S.C. 7511](/usc/5/7511.md) immediately before appointment to the SES. In that case, the removal is subject to the provisions of [part 752](/cfr/5/part752.md), [subpart F](/cfr/5/subpartF.md), of this chapter.
- (b) **Procedures.**
  - (1) The agency shall give the appointee an advance written notice stating the specific reasons for the proposed removal.
  - (2) The appointee shall be given a reasonable time to reply.
  - (3) The agency shall give the appointee a written decision showing the reasons for the action and the effective date. The decision shall be given to the appointee at or before the time the action will be made effective.