---
kind: "section"
citation: "5 C.F.R. § 9701.610"
title: "5"
number: "9701.610"
heading: "Opportunity to reply."
url: "https://uscodex.org/cfr/5/9701.610"
---

# §9701.610. Opportunity to reply.

- (a) The Department must give employees at least 10 days, which must run concurrently with the notice period, to reply orally and/or in writing to a notice of proposed adverse action. However, if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department must give the employee at least 5 days, which must run concurrently with the notice period, to reply orally and/or in writing.
- (b) The opportunity to reply orally does not include the right to a formal hearing with examination of witnesses.
- (c) During the opportunity to reply, the Department must give the employee a reasonable amount of official time to review the Department's supporting evidence, and to furnish affidavits and other documentary evidence, if the employee is otherwise in an active duty status.
- (d) The Department must designate an official to receive the employee's written and/or oral response. The official must have authority to make or recommend a final decision on the proposed adverse action.
- (e) The employee may be represented by an attorney or other representative of the employee's choice and at the employee's expense, subject to [paragraph (f)](#f) of this section. The employee must provide the Department with a written designation of his or her representative.
- (f) The Department may disallow as an employee's representative—
  - (1) An individual whose activities as representative would cause a conflict between the interest or position of the representative and that of the Department,
  - (2) An employee of the Department whose release from his or her official position would give rise to unreasonable costs or whose work assignments preclude his or her release; or
  - (3) **An individual whose activities as representative could compromise security.**
- (g)
  - (1) An employee who wishes the Department to consider any medical condition that may be relevant to the proposed adverse action must provide medical documentation, as that term is defined at [5 CFR 339.104](/cfr/5/339.104.md), during the opportunity to reply, whenever possible.
  - (2) When considering an employee's medical documentation, the Department may require or offer a medical examination pursuant to [5 CFR part 339](/cfr/5/part339.md), subpart C.
  - (3) When considering an employee's medical condition, the Department is not required to withdraw or delay a proposed adverse action. However, the Department must—
    - (i) Allow the employee to provide medical documentation during the opportunity to reply;
    - (ii) Comply with [29 CFR 1614.203](/cfr/29/1614.203.md) and relevant Equal Employment Opportunity Commission rules; and
    - (iii) Comply with [5 CFR 831.1205](/cfr/5/831.1205.md) when issuing a decision to remove.

## Notes

### Authority

Authority: 5 U.S.C. 9701.

### Source

Source: 70 FR 5318, Feb. 1, 2005, unless otherwise noted.