104 STAT. 462 PUBLIC LAW 101-376 —AUG. 17, 1990 "(1) whose appointment is made by and with the advice and consent of the Senate; "(2) whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by— "(A) the President for a position that the President has excepted from the competitive service; "(B) the Office of Personnel Management for a position that the Office has excepted from the competitive service; or "(C) the President or the head of an agency for a position excepted from the competitive service by statute; "(3) whose appointment is made by the President; "(4) who is receiving an annuity from the Civil Service Retirement and Disability Fund, or the Foreign Service Retirement and Disability Fund, based on the service of such employee; "(5) who is described in section 8337(h)(1), relating to technicians in the National Guard; "(6) who is a member of the Foreign Service, as described in section 103 of the Foreign Service Act of 1980; "(7) whose position is with the Central Intelligence Agency, the General Accounting Office, or the Veterans Health Services and Research Administration; "(8) whose position is within the United States Postal Service, the Postal Rate Commission, the Panama Canal Commission, the Tennessee Valley Authority, the Federal Bureau of Investigation, the National Security Agency, the Defense Intelligence Agency, or an intelligence activity of a military department covered under section 1590 of title 10, unless subsection (a)(1)(B) of this section or section 1005(a) of title 39 is the basis for this subchapter's applicability; or "(9) who is described in section 5102(c)(ll) of this title. "(c) The Office may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office which is not otherwise covered by this subchapter.". (b) ACTIONS BASED ON UNACCEPTABLE PERFORMANCE.— Section 4303(e) of title 5, United States Code, is amended to read as follows: "(e) Any employee who is— "(1) a preference eligible; "(2) in the competitive service; or "(3) in the excepted service and covered by subchapter II of chapter 75, and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701.". 5 USC 4303 (c) APPLICABILITY.—The amendments made by this section shall »ote. apply with respect to any personnel action taking effect on or after the effective date of this Act. SEC. 3. ANNUITANT STATUS NOT A BAR TO APPEALING ONE'S REMOVAL. Section 7701 of title 5, United States Code, is amended— (1) by redesignating subsection (j) as subsection (k); and (2) by inserting after subsection (i) the following: "(j) In determining the appealability under this section of any case involving a removal from the service (other than the removal of a reemployed annuitant), neither an individual's status under any
�
