Reaching the Senior Executive Service is a career milestone, and many executives assume their protections grow along with their responsibility. In several important ways, they shrink. An SES member at a Washington headquarters agency can be reassigned on short notice, removed from the SES for performance without a full MSPB appeal, and placed in a position several steps below the one they held. As a Washington DC federal employee attorney, we often hear from executives who learned these rules only after receiving a notice. Here is how SES removal rights work and where they differ from the General Schedule.
What makes SES employment different from the General Schedule?
The Senior Executive Service is a separate personnel system created by the Civil Service Reform Act of 1978 for executives who lead programs and organizations below the political appointee level. It has its own rules for appointment, pay, performance, reassignment, and removal, most of them in Title 5, Chapter 33, Subchapter VIII and Chapter 75, Subchapter V.
Your type of appointment matters most. Career SES appointees, who reach the SES through a merit staffing process and Qualifications Review Board certification, have the protections described here. Noncareer, limited term, and limited emergency appointees serve with few protections and can generally be removed without the procedures that apply to career members. New career appointees also serve a one-year probationary period under 5 U.S.C. § 3393(d).
Can an SES member appeal a misconduct removal to the MSPB?
Yes. A career SES appointee who has finished probation can appeal a removal from the civil service, or a suspension of more than 14 days, to the Merit Systems Protection Board under 5 U.S.C. § 7543.
The grounds for these actions are narrower than for GS employees. Section 7543 allows them only for misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to follow a function that is transferred. The agency must give at least 30 days’ advance written notice, a reasonable time to answer, the right to a representative, and a written decision. At the MSPB, the agency has to prove its charges, and the executive can challenge both the facts and the penalty.
What happens if I am removed from the SES for poor performance?
You do not get a full MSPB appeal. Under 5 U.S.C. § 3592, a career appointee removed from the SES for less than fully successful performance is entitled only to an informal hearing before an official designated by the MSPB, and only if you request it at least 15 days before the removal takes effect.
That hearing gives you a chance to be heard on the record, but the official cannot order the agency to reverse the removal. An unsatisfactory summary rating requires the agency to reassign or transfer you within the SES or remove you from it. Two less than fully successful ratings within three years require removal.
A removal from the SES for performance is not the same as losing your federal job. Career appointees who were not serving a probationary period generally have placement rights under 5 U.S.C. § 3594 to a GS-15 or equivalent position. That fallback is valuable, but the drop in pay and responsibility can be significant.
What is the SES 120-day rule?
When a new agency head is appointed, or you get a new noncareer supervisor who has authority to reassign you, the agency generally cannot involuntarily reassign you within the next 120 days. It also cannot remove you from the SES for performance during that period. These protections come from 5 U.S.C. §§ 3395(e) and 3592(b).
The moratorium gives new political leadership time to evaluate career executives before acting. In a year with heavy leadership turnover, executives should know exactly when the 120 days started for them and when it ends, because actions sometimes arrive on day 121.
Can my agency reassign me to a different position or city?
Yes, and with far less process than a GS employee would get. A career SES member can be reassigned to any SES position in the agency for which they are qualified, with at least 15 days’ written notice. If the new position is outside your commuting area, the agency must give 60 days’ notice and consult with you first.
Directed reassignments outside Washington have sometimes been used to push executives toward retirement. Refusing a reassignment can itself be a basis for removal under Section 7543, so the decision should be made with the consequences in mind. A reassignment that follows a protected disclosure or an EEO complaint can also support a retaliation claim.
Do EEO and whistleblower protections apply to SES members?
Yes. Career and noncareer executives alike are covered by Title VII, the Age Discrimination in Employment Act, and the Rehabilitation Act, and must contact an EEO counselor within 45 days of a discriminatory action. Career SES members are also covered by the Whistleblower Protection Act, which lets them file reprisal complaints with the Office of Special Counsel and, after that, an Individual Right of Action appeal with the MSPB. For an executive facing a performance-based removal with only an informal hearing available, these claims may be the main route to an outside decision-maker.
When should an SES member call a Washington DC federal employee attorney?
As soon as you receive a reassignment notice, a less than fully successful rating, or a proposed action, and preferably before you reply. The deadlines are short: 15 days to request an informal hearing, 30 days to file an MSPB appeal, and 45 days to contact an EEO counselor.
An attorney can confirm which type of appointment you hold, check whether the 120-day moratorium applies, review the rating record behind a performance removal, and negotiate options such as a lateral move, retirement timing, or a negotiated exit that protects your annuity and reputation.
Protecting an executive career
Career SES members keep MSPB appeal rights for misconduct removals and long suspensions, but a removal from the SES for performance comes with only an informal hearing and a fallback to a GS-15 position. Reassignments can arrive with as little as 15 days’ notice, and the 120-day moratorium is often the main buffer against fast action by new leadership. The Mundaca Law Firm represents senior federal executives from our office at 1300 I Street NW. If you are facing a reassignment, a rating dispute, or a proposed removal, speak with a Washington DC federal employee attorney and schedule a confidential consultation before your response is due.