---
kind: "section"
citation: "5 C.F.R. § 359.406"
title: "5"
number: "359.406"
heading: "Restrictions."
url: "https://uscodex.org/cfr/5/359.406"
---

# §359.406. Restrictions.

- (a) Removal from the SES under [§§ 359.402 through 359.404](/cfr/5/359.402..359.404.md) may not be made effective within 120 days after—
  - (1) The appointment of a new agency head; or
  - (2) **The appointment in the agency of the career appointee's most immediate supervisor who—**
    - (i) Is a noncareer appointee; and
    - (ii) **Has the authority to remove the career appointee.**
- (b) For purposes of this section, a noncareer appointee includes an SES noncareer or limited appointee, an appointee in a position filled by Schedule C, or an appointee in an Executive Schedule or equivalent position other than a career Executive Schedule or equivalent position.
- (c) **The restrictions in paragraph (a) of this section do not apply—**
  - (1) When the career appointee has received a final rating of unsatisfactory under the performance appraisal system established by the agency under subchapter II of chapter 43 of title 5, United States Code, before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor who has the authority to remove the career appointee;
  - (2) To a disciplinary action initiated before the appointment of a new agency head or the appointment of the career appointee's most immediate noncareer supervisor who has the authority to remove the career appointee;
  - (3) To a disciplinary action when there is a reasonable cause to believe that the career appointee has committed a crime for which a sentence of imprisonment can be imposed; or
  - (4) **To a disciplinary action when the circumstances are such that retention of the career appointee—**
    - (i) May pose a threat to the appointee or others;
    - (ii) May result in loss of or damage to Government property; or
    - (iii) **May otherwise jeopardize legitimate Government interests.**
- (d) The following procedures must be observed when an agency invokes an exception to the 120-day restriction under paragraphs [(c)(3)](#c-3) or [(c)(4)](#c-4) of this section:
  - (1) The agency shall include in the notice the reasons for invoking the exception.
  - (2) The appointee shall be given a reasonable time, but no less than 7 days, to respond regarding the propriety of the use of the exception.
  - (3) The agency shall give the appointee a notice of decision on the propriety of the use of the exception at or before the time the action will be effective.
  - (4) When circumstances require immediate action, the agency may place the appointee in a nonduty status with pay for such time as necessary to effect the action.
- (e) **The imposition of the 120-day moratorium does not extend the probationary period.**

## Notes

### Amendments

[54 FR 18876, May 3, 1989, as amended at 57 FR 10125, Mar. 24, 1992]

### Authority

Authority: 5 U.S.C. 1302, 3302, and 3596, unless otherwise noted.

### Source

Source: 54 FR 18876, May 3, 1989, unless otherwise noted.

### Amendments

[54 FR 18876, May 3, 1989, as amended at 57 FR 10125, Mar. 24, 1992]