U.S. Code » Title 5 » Part PART III— EMPLOYEES › Subpart Subpart B— Employment and Retention › Chapter CHAPTER 33— EXAMINATION, SELECTION, AND PLACEMENT › Subchapter SUBCHAPTER I— EXAMINATION, CERTIFICATION, AND APPOINTMENT

5 U.S.C. § 3321

Competitive service; probationary period

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(a) The President may take such action, including the issuance of rules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation—(1) before an appointment in the competitive service becomes final; and(2) before initial appointment as a supervisor or manager becomes final.(b) An individual—(1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and(2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section,shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance.(c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 95–454, title III, § 303(a), Oct. 13, 1978, 92 Stat. 1146; Pub. L. 100–325, § 2(d), May 30, 1988, 102 Stat. 581; Pub. L. 114–92, div. A, title XI, § 1105(c)(1), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(A), Dec. 27, 2021, 135 Stat. 1950.)

Historical and Revision Notes

Derivation

U.S. Code

Revised Statutes and

Statutes at Large

 

5 U.S.C. 633(2)4.

Jan. 16, 1883, ch. 27. § 2(2)4, 22 Stat. 404.

The authority of the President to prescribe rules is added on authority of former section 633(1), which is carried into section 3302. Wording is changed because in practice an appointment is not made after probation. The words “or employment” are omitted as included within “appointment”.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial NotesAmendments

2021—Subsec. (c). Pub. L. 117–81 struck out “, or any individual covered by section 1599e of title 10” before period at end.

2015—Subsec. (c). Pub. L. 114–92 inserted “, or any individual covered by section 1599e of title 10” before period at end.

1988—Subsec. (c). Pub. L. 100–325 inserted reference to Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.

1978—Pub. L. 95–454 substituted “probationary period” for “probation; period of” in section catchline, designated existing provisions as subsec. (a), substituted provisions authorizing the President to take necessary action, for provisions authorizing the President to prescribe rules, and added subsecs. (b) and (c).

Statutory Notes and Related SubsidiariesEffective Date of 2021 Amendment

Amendment by Pub. L. 117–81 applied as if effective Dec. 31, 2022, to correspond to the effective date of the repeal of section 1599e of Title 10, Armed Forces, to reflect the probable intent of Congress. See Effective Date of Repeal note under section 1599e of Title 10.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Notes of Decisions
Cited in 26 cases (8 in the last 5 years), 1971–2025 · leading case: Sampson v. Murray, 415 U.S. 61 (1974).
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Sampson v. Murray, 415 U.S. 61 (1974). · cites it 2× “Title 5 U. S. C. § 3321 , derived from the original Pendleton Act, [43] requires the creation of this classification: "The President may prescribe rules, which shall provide, as nearly as conditions of good administration warrant, that there shall be a period of probation before…”
Mouton-Miller v. MSPB, 985 F.3d 864 (Fed. Cir. 2021). · cites it 2× “Mouton-Miller’s supervisory service as an Audit Manager with the Postal Service could be “tacked” to her supervisory service with Homeland Se- curity under 5 U.S.C. § 3321 , which would result in Ms.”
Barbara Franklin McKenna v. Caspar W. Weinberger, Sec'y of Def., 729 F.2d 783 (D.C. Cir. 1984). “1979); 5 U.S.C. § 3321 (1982). 5 . Tr. Oct. 8 at 177.”
Nat'l Treasury Employees Union v. Fed. Labor Relations Auth., 737 F.3d 273 (4th Cir. 2013). · cites it 3× “5 U.S.C. § 3321 permits the President to set up a “period of probation” for new employees “before an appointment in the competitive service becomes final.”
Frank K. Kotarski v. V.L. Cooper, A.E. Navarro, W.J. Tinston, J.H. Kirkpatrick, Naval Air Rework Facility, Capt. P.A. Monroe, in His Off. Capacity, 799 F.2d 1342 (9th Cir. 1986). “5 U.S.C. § 3321 ; 5 C.F.R. § 315.802 (a) et seq.”
Leonard L. Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558 (Fed. Cir. 1985). “See 5 U.S.C. § 3321 (b). See also 5 U.S.C. § 4303 (f)(1); 5 C.”
Connolly v. United States, 554 F. Supp. 1250 (Ct. Cl. 1982). “The CSRA merely provides that before receiving a permanent appointment, employees will serve a probationary period, subject to the President’s broad power to regulate the terms and conditions of probationary employment.”
Nat'l Labor Relations Bd. v. Permanent Label Corp., 657 F.2d 512 (3rd Cir. 1981). “This committee submits a recommendation to the director of OPM who makes final eligibility determinations among qualified candidates.”
Currie v. Merit Sys. Prot. Bd., 679 F. App'x 995 (Fed. Cir. 2017). · cites it 4× “908 (a) bars Currie from appealing his demotion to the Board because he was demoted pursuant to 5 U.S.C. § 3321 and 5 C.F.R. § 315.907 (a), and he did not allege that § 315.”
Nat'l Treasury Employees Union v. Fed. Labor Relations Auth., 848 F.2d 1273 (D.C. Cir. 1988). “2 We found that the proposal conflicted with statutes and government-wide regulations stating the rights of dismissed probationary employees, namely 5 U.S.C. § 3321 (Supp. V 1981) and 5 C.F.”
Christian v. New York State Dep't of Labor, Div. of Emp., 347 F. Supp. 1158 (S.D.N.Y. 1972). · cites it 2× “[6] 5 U.S.C. § 3321 . [7] See footnote 4, supra.”
Gladys Anna Holden v. Robert H. Finch, Sec'y, U. S. Dep't of Health, Educ. & Welfare, 446 F.2d 1311 (D.C. Cir. 1971). “” 5 U.S.C. § 3321 . Under this authority, a period of one year has, by Commission regulation, been prescribed to this end.”
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