A career SES’er at a Cabinet department in D.C. who has spent twenty years building a portfolio of agency leadership roles can find that career suspended in a meeting that lasts twenty minutes. The notice of proposed removal, the proposed reassignment to a position three pay-grades below, the request for an unscheduled performance review-these aren’t ordinary federal personnel actions, and they don’t follow ordinary federal personnel rules. The Senior Executive Service operates under its own statutory framework, with shorter deadlines, narrower MSPB jurisdiction, and procedural protections that look familiar but work differently in practice. A Washington DC federal employee attorney who handles SES matters can map out the framework before procedural windows close on options the executive may not realize exist.
What Makes the SES Different
The Senior Executive Service was created by the Civil Service Reform Act of 1978 to develop a corps of government leaders who could move across agencies and serve as the bridge between political appointees and career civil servants. The SES has roughly 8,000 members, and the largest concentration sits in Washington, D.C., across every Cabinet department and most independent agencies.
SES members fall into two categories. Career SES, hired through a merit-based selection process, holds the bulk of SES positions and receives the procedural protections discussed below. Non-career SES (sometimes called limited-term or limited-emergency appointments) operates under different rules with substantially less procedural protection.
The substantive framework for career SES discipline lives in two main places. 5 U.S.C. § 3592 and § 3593 govern reassignments, transfers, and performance-based removals from the SES (with the option of returning to a Tier 1 position at GS-15 or below). 5 U.S.C. § 7543 governs adverse actions for misconduct, including suspensions of more than 14 days and removal from federal service.
Each statute imposes a different procedural framework, and the consequence for the executive depends in part on which one the agency invokes.
Performance-Based Removal Under § 3592
When an agency moves to remove an SES member for performance reasons, the action proceeds under § 3592. The process has several distinctive features:
The agency provides the executive with written notice of the proposed action, the specific reasons, and an opportunity to respond. The notice typically allows 30 days for reply.
The executive has the right to an informal hearing before an MSPB administrative judge. This is not a full evidentiary hearing in the Chapter 75 sense; it’s an informal proceeding where the executive may present arguments and evidence.
If the agency proceeds with removal from the SES, the executive cannot appeal that removal to the MSPB on the merits. The MSPB’s role under § 3592 is essentially confined to the informal hearing.
Career SES members removed under § 3592 for less-than-fully-successful performance are entitled to placement in a Tier 1 (GS-15 or equivalent) position under § 3594, which preserves federal employment but at a substantially reduced grade and pay.
The asymmetry matters. A performance-based action under § 3592 produces an immediate consequence (removal from the SES), but with limited external review. The case has to be made before the action takes effect, in the response to the notice and the informal hearing, because there is no robust appellate forum waiting on the back end.
Misconduct Removal Under § 7543
When an agency proceeds against an SES member for misconduct rather than performance, the action moves under 5 U.S.C. § 7543, which incorporates much of the standard Chapter 75 framework with SES-specific overlays.
Notice of proposed action provides at least 30 days. The executive has the right to a written and oral reply, the right to be represented by counsel, and the right to receive the agency’s evidence file. A deciding official considers the response and issues a final decision.
Unlike § 3592, the § 7543 framework provides for full MSPB appeal rights. An SES member removed for misconduct can appeal to the MSPB within 30 calendar days of the effective date under 5 C.F.R. § 1201.22, with the same procedural protections (discovery, hearing, initial decision, petition for review) that apply to ordinary Chapter 75 cases.
The choice of statute is itself a strategic question for the agency, and it sometimes signals where the agency is confident in its evidence. Performance theories under § 3592 produce faster outcomes with limited review. Misconduct theories under § 7543 carry more procedural exposure for the agency but produce more durable removals if sustained.
Reassignments and Transfers
Reassignments within the SES present another distinctive issue. Under § 3593, an agency can reassign a career SES member to any SES position in the same agency, subject to a 60-day limit on involuntary geographic reassignments and certain consultation requirements. Reassignment between agencies generally requires the executive’s consent.
Reassignments are not adverse actions in the Chapter 75 sense and don’t carry MSPB appeal rights. They can, however, support discrimination or whistleblower retaliation claims when the reassignment patterns suggest a protected-characteristic or protected-activity motivation.
A reassignment to a less prestigious or less substantive position, particularly when paired with new performance expectations, sometimes functions as a quiet exit pathway. Recognizing that pattern early matters because the executive’s options narrow as the new performance period accumulates.
Performance Review Boards and the SES Appraisal Process
Each agency’s Performance Review Board (PRB) plays a central role in SES performance management. Under 5 C.F.R. § 430.310, PRBs make recommendations on performance ratings, pay adjustments, performance awards, and certain personnel actions.
PRB recommendations are not binding on the agency head, but they carry significant weight. An executive who receives a less-than-fully-successful rating from the PRB is on a track that, if not addressed, can lead to performance-based removal under § 3592.
Challenges to PRB processes include questions about composition (the PRB should be composed of SES members), procedural fairness, and the accuracy of the underlying performance assessment. These challenges are typically pursued through agency grievance procedures and through eventual EEO or MSPB filings if the rating supports a discrimination or retaliation theory.
The VA Accountability Act and Senior Executive Discipline
The VA Accountability and Whistleblower Protection Act of 2017 created an expedited disciplinary process for VA senior executives, with shortened response periods, modified MSPB review under 38 U.S.C. § 713, and a different appeal posture. Senior executives at the VA in Washington and the broader VA leadership cohort face a procedural framework that differs from the standard SES framework discussed above. Counsel familiar with both is necessary for VA SES cases.
What an SES Member Should Do When a Notice Arrives
Save every document related to the proposed action and any underlying investigation, performance assessment, or PRB record. Request the agency’s evidence file in writing.
Identify the statute being invoked. Determine whether the agency is proceeding under § 3592 (performance), § 7543 (misconduct), or § 713 (VA-specific), and whether the proposed action involves removal from the SES, removal from federal service, suspension, or reassignment.
Track every deadline. The reply period, the informal hearing window under § 3592, the MSPB appeal deadline under § 7543, and any associated EEO contact deadline (45 days from any related discriminatory act) all run independently.
Don’t sign any settlement, separation agreement, or last chance agreement without counsel review. The waivers in SES separation packages are routinely broader than the consideration offered, and the interaction with retirement, severance, and SES retention authority is technical.
Consider parallel claims. Discrimination, whistleblower retaliation, prohibited personnel practices under 5 U.S.C. § 2302, and Hatch Act issues sometimes overlap with the SES action and create parallel forum options worth coordinating.
Senior executives across the Cabinet departments in D.C. (DOJ, Treasury, State, DOD, HHS, DHS, Education, Energy, HUD, Interior, Labor, Transportation, USDA, VA, Commerce), the independent agencies (SEC, FTC, FDIC, FCC, FERC, NLRB, EEOC, MSPB itself), and the Executive Office of the President all operate under variations of this framework with agency-specific overlays.
For background, opm.gov publishes SES policy guidance, mspb.gov publishes § 3592 and § 7543 decisions, and 5 U.S.C. §§ 3591-3595 and § 7543 along with 5 C.F.R. Parts 317, 359, and 430 are the substantive references.
Talk to a Washington DC Federal Employee Attorney Before the Reply Period Closes
SES discipline cases reward early counsel involvement more than almost any other federal employment matter. The procedural windows are short, the statutory framework is technical, and the case is largely made or lost in the response to the notice rather than on appeal. A Washington DC federal employee attorney who has handled § 3592 informal hearings, § 7543 MSPB appeals, VA Accountability Act cases, and SES separation negotiations can help an executive preserve every option the framework allows. If you’ve received a notice of proposed removal, reassignment, or performance-based action as a member of the SES, contact counsel before the reply period runs.
