5 C.F.R. § 359.404

Removal: Conditions arising before appointment

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(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 immediately before appointment to the SES. In that case, the removal is subject to the provisions of part 752, subpart F, 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.

Notes of Decisions

Cited in 1 case, 2008–2008 · leading case: Colodney v. Dep't of Health & Human Servs., 314 F. App'x 312 (Fed. Cir. 2008).

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Colodney v. Dep't of Health & Human Servs., 314 F. App'x 312 (Fed. Cir. 2008). · cites it 5× “In contrast, he asserted that this appeal concerned a violation of 5 C.F.R. § 359.404 because the notice of removal stated that he did not meet the Executive Core Qualifications (ECQs) required for an SES appointment, which he argued made it a removal for conditions arising…”

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