---
kind: "range"
citation: "5 U.S.C. §§ 3501–3504"
title: "5"
from: "3501"
to: "3504"
count: 4
release: "119-102"
url: "https://uscodex.org/usc/5/3501..3504"
---

# §3501. Definitions; application

- (a) For the purpose of this subchapter, except [section 3504](/usc/5/3504.md)—
  - (1) “active service” has the meaning given it by [section 101 of title 37](/usc/37/101.md);
  - (2) “a retired member of a uniformed service” means a [member](/usc/5/5531.md?p=1) or former [member](/usc/5/5531.md?p=1) of a uniformed [service](/usc/5/8331.md?p=12) who is entitled, under statute, to retired, retirement, or retainer pay on [account](/usc/5/8401.md?p=1) of his [service](/usc/5/8331.md?p=12) as such a [member](/usc/5/5531.md?p=1); and
  - (3) a preference eligible [employee](/usc/5/5361.md?p=1) who is [a retired member of a uniformed service](#a-2) is considered a preference eligible only if—
    - (A) his retirement was based on disability—
      - (i) resulting from injury or disease received in line of duty as a direct result of armed conflict; or
      - (ii) caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by sections [101](/usc/38/101.md) and [1101](/usc/38/1101.md) of title 38;
    - (B) his [service](/usc/5/8331.md?p=12) does not include twenty or more years of full-time [active service](#a-1), regardless of when performed but not including periods of active duty for training; or
    - (C) on November 30, 1964, he was employed in a [position](/usc/5/5531.md?p=2) to which this subchapter applies and thereafter he continued to be so employed without a break in [service](/usc/5/8331.md?p=12) of more than 30 days.
- (b) Except as otherwise provided by this subsection and [section 3504 of this title](/usc/5/3504.md), this subchapter applies to each [employee](/usc/5/5361.md?p=1) in or under an [Executive agency](/usc/5/3330d.md?p=a-2-A). This subchapter does not apply to an [employee](/usc/5/5361.md?p=1) whose appointment is required by Congress to be confirmed by, or made with the advice and consent of, the Senate or to a [member](/usc/5/5531.md?p=1) of the Senior Executive [Service](/usc/5/8331.md?p=12) or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive [Service](/usc/5/8331.md?p=12).

# §3502. Order of retention

- (a) The Office of Personnel Management shall prescribe regulations for the release of competing [employees](/usc/5/5361.md?p=1) in a reduction in force which give due effect to—
  - (1) tenure of employment;
  - (2) military preference, subject to [section 3501(a)(3) of this title](/usc/5/3501.md?p=a-3);
  - (3) length of [service](/usc/5/8331.md?p=12); and
  - (4) efficiency or performance ratings.

  In computing length of [service](/usc/5/8331.md?p=12), a competing [employee](/usc/5/5361.md?p=1)—

  - (A) who is not [a retired member of a uniformed service](/usc/5/3501.md?p=a-2) is entitled to credit for the total length of time in [active service](/usc/5/3501.md?p=a-1) in the [armed forces](/usc/5/2101.md?p=2);
  - (B) who is [a retired member of a uniformed service](/usc/5/3501.md?p=a-2) is entitled to credit for—
    - (i) the length of time in [active service](/usc/5/3501.md?p=a-1) in the [armed forces](/usc/5/2101.md?p=2) during a war, or in a campaign or expedition for which a campaign badge has been authorized; or
    - (ii) the total length of time in [active service](/usc/5/3501.md?p=a-1) in the [armed forces](/usc/5/2101.md?p=2) if he is included under section [3501(a)(3)(A)](/usc/5/3501.md?p=a-3-A), [(B)](/usc/5/3501.md?p=a-3-B), or [(C)](/usc/5/3501.md?p=a-3-C) of this title; and
  - (C) is entitled to credit for—
    - (i) [service](/usc/5/8331.md?p=12) rendered as an [employee](/usc/5/5361.md?p=1) of a county committee established pursuant to section 8(b) of the Soil Conservation and Allotment Act or of a committee or association of producers described in section 10(b) of the Agricultural Adjustment Act; and
    - (ii) [service](/usc/5/8331.md?p=12) rendered as an [employee](/usc/5/5361.md?p=1) described in [section 2105(c)](/usc/5/2105.md?p=c) if such [employee](/usc/5/5361.md?p=1) moves or has moved, on or after January 1, 1966, without a break in [service](/usc/5/8331.md?p=12) of more than 3 days, from a [position](/usc/5/5531.md?p=2) in a [nonappropriated fund instrumentality](/usc/5/5595.md?p=h-6-C) of the Department of Defense or the Coast Guard to a [position](/usc/5/5531.md?p=2) in the Department of Defense or the Coast Guard, respectively, that is not described in [section 2105(c)](/usc/5/2105.md?p=c).
- (b) A preference eligible described in [section 2108(3)(C) of this title](/usc/5/2108.md?p=3-C) who has a compensable [service](/usc/5/8331.md?p=12)-connected disability of 30 percent or more and whose performance has not been rated unacceptable under a performance appraisal system implemented under [chapter 43](/usc/5/chptIII-sptC-ch43.md) of this title is entitled to be retained in preference to other preference eligibles.
- (c) An [employee](/usc/5/5361.md?p=1) who is entitled to retention preference and whose performance has not been rated unacceptable under a performance appraisal system implemented under [chapter 43](/usc/5/chptIII-sptC-ch43.md) of this title is entitled to be retained in preference to other competing [employees](/usc/5/5361.md?p=1).
- (d)
  - (1) Except as provided under [subsection (e)](#e), an [employee](/usc/5/5361.md?p=1) may not be released, due to a reduction in force, unless—
    - (A) such [employee](/usc/5/5361.md?p=1) and such [employee](/usc/5/5361.md?p=1)’s exclusive representative for collective-bargaining purposes (if any) are given written notice, in conformance with the requirements of [paragraph (2)](#d-2), at least 60 days before such [employee](/usc/5/5361.md?p=1) is so released; and
    - (B) if the reduction in force would involve the separation of a significant number of [employees](/usc/5/5361.md?p=1), the requirements of [paragraph (3)](#d-3) are met at least 60 days before any [employee](/usc/5/5361.md?p=1) is so released.
  - (2) Any notice under [paragraph (1)(A)](#d-1-A) shall include—
    - (A) the personnel action to be taken with respect to the [employee](/usc/5/5361.md?p=1) involved;
    - (B) the effective date of the action;
    - (C) a description of the procedures applicable in identifying [employees](/usc/5/5361.md?p=1) for release;
    - (D) the [employee](/usc/5/5361.md?p=1)’s ranking relative to other competing [employees](/usc/5/5361.md?p=1), and how that ranking was determined; and
    - (E) a description of any appeal or other rights which may be available.
  - (3) Notice under [paragraph (1)(B)](#d-1-B)—
    - (A) shall be given to—
      - (i) the State or entity designated by the State to carry out rapid response activities under section 134(a)(2)(A) of the Workforce Investment Act of 1998;[^1] and
      - (ii) the chief elected official of such unit or each of such units of local government as may be appropriate; and
    - (B) shall consist of written notification as to—
      - (i) the number of [employees](/usc/5/5361.md?p=1) to be separated from [service](/usc/5/8331.md?p=12) due to the reduction in force (broken down by geographic area or on such other basis as may be required under [paragraph (4)](#d-4));
      - (ii) when those separations will occur; and
      - (iii) any other matter which might facilitate the delivery of rapid response assistance or other [services](/usc/5/8331.md?p=12) under title I of the Workforce Investment Act of 1998.[^1]
  - (4) The Office shall prescribe such regulations as may be necessary to carry out this subsection. The Office shall consult with the Secretary of Labor on matters relating to title I of the Workforce Investment Act of 1998.[^1]
- (e)
  - (1) Subject to [paragraph (3)](#e-3), upon request submitted under [paragraph (2)](#e-2), the President may, in writing, shorten the period of advance notice required under subsection [(d)(1)(A)](#d-1-A) and [(B)](#d-1-B), with respect to a particular reduction in force, if necessary because of circumstances not reasonably foreseeable.
  - (2) A request to shorten notice periods shall be submitted to the President by the head of the [agency](/usc/5/500.md?p=a-1) involved, and shall indicate the reduction in force to which the request pertains, the number of days by which the [agency](/usc/5/500.md?p=a-1) head requests that the periods be shortened, and the reasons why the request is necessary.
  - (3) No notice period may be shortened to less than 30 days under this subsection.
- (f)
  - (1) The Secretary of Defense or the Secretary of a military department may—
    - (A) separate from [service](/usc/5/8331.md?p=12) any [employee](/usc/5/5361.md?p=1) who volunteers to be separated under this subparagraph even though the [employee](/usc/5/5361.md?p=1) is not otherwise subject to separation due to a reduction in force; and
    - (B) for each [employee](/usc/5/5361.md?p=1) voluntarily separated under [subparagraph (A)](#f-1-A), retain an [employee](/usc/5/5361.md?p=1) in a similar [position](/usc/5/5531.md?p=2) who would otherwise be separated due to a reduction in force.
  - (2) The separation of an [employee](/usc/5/5361.md?p=1) under [paragraph (1)(A)](#f-1-A) shall be treated as an involuntary separation due to a reduction in force.
  - (3) An [employee](/usc/5/5361.md?p=1) with critical knowledge and skills (as defined by the Secretary concerned) may not participate in a voluntary separation under [paragraph (1)(A)](#f-1-A) if the Secretary concerned determines that such participation would impair the performance of the mission of the Department of Defense or the military department concerned.
  - (4) The regulations prescribed under this section shall incorporate the [authority](/usc/5/7103.md?p=a-6) provided in this subsection.
  - (5) No [authority](/usc/5/7103.md?p=a-6) under [paragraph (1)](#f-1) may be exercised after September 30, 2018.

# §3503. Transfer of functions

- (a) When a function is transferred from one [agency](/usc/5/500.md?p=a-1) to another, each competing [employee](/usc/5/5361.md?p=1) in the function shall be transferred to the receiving [agency](/usc/5/500.md?p=a-1) for employment in a [position](/usc/5/5531.md?p=2) for which he is qualified before the receiving [agency](/usc/5/500.md?p=a-1) may make an appointment from another source to that [position](/usc/5/5531.md?p=2).
- (b) When one [agency](/usc/5/500.md?p=a-1) is replaced by another, each competing [employee](/usc/5/5361.md?p=1) in the [agency](/usc/5/500.md?p=a-1) to be replaced shall be transferred to the replacing [agency](/usc/5/500.md?p=a-1) for employment in a [position](/usc/5/5531.md?p=2) for which he is qualified before the replacing [agency](/usc/5/500.md?p=a-1) may make an appointment from another source to that [position](/usc/5/5531.md?p=2).

# §3504. Preference eligibles; retention; physical qualifications; waiver

- (a) In determining qualifications of a preference eligible for retention in a [position](/usc/5/5531.md?p=2) in the competitive [service](/usc/5/8331.md?p=12), an [Executive agency](/usc/5/3330d.md?p=a-2-A), or the government of the District of Columbia, the Office of Personnel Management or other examining [agency](/usc/5/500.md?p=a-1) shall waive—
  - (1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the [position](/usc/5/5531.md?p=2); and
  - (2) physical requirements if, in the opinion of the Office or other examining [agency](/usc/5/500.md?p=a-1), after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the [position](/usc/5/5531.md?p=2).
- (b) If an examining [agency](/usc/5/500.md?p=a-1) determines that, on the basis of evidence before it, a preference eligible described in [section 2108(3)(C) of this title](/usc/5/2108.md?p=3-C) who has a compensable [service](/usc/5/8331.md?p=12)-connected disability of 30 percent or more is not able to fulfill the physical requirements of the [position](/usc/5/5531.md?p=2), the examining [agency](/usc/5/500.md?p=a-1) shall notify the Office of the determination and, at the same time, the examining [agency](/usc/5/500.md?p=a-1) shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing [authority](/usc/5/7103.md?p=a-6) that the notification was timely sent to the preference eligible’s last known address and shall, before the selection of any other person for the [position](/usc/5/5531.md?p=2), make a final determination on the physical ability of the preference eligible to perform the duties of the [position](/usc/5/5531.md?p=2), taking into [account](/usc/5/8401.md?p=1) any additional information provided in the response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing [authority](/usc/5/7103.md?p=a-6) and the preference eligible. The appointing [authority](/usc/5/7103.md?p=a-6) shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.