5 U.S.C. § 3302 — Competitive service; rules

Page 379 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3302 (iii) the authority granted by law, Executive Order, or regulation to a department or agency, or the head thereof, to determine eligibility for access to classified information or to occupy a sensitive position; or (iv) the authority granted by law or Executive Order to a department or agency, or the head thereof, to take adverse actions against Federal employees for their failure to comply with any law, rule, or regulation im- posing upon them an obligation to satisfy in good faith their just financial obligations, including Federal, State, or local taxes. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) The Director of OPM is authorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA. § 3302. Competitive service; rules The President may prescribe rules governing the competitive service. The rules shall provide, as nearly as conditions of good administration warrant, for— (1) necessary exceptions of positions from the competitive service; and (2) necessary exceptions from the provisions of sections 2951, 3304(b), 3321, 7202, and 7203 of this title. Each officer and individual employed in an agen- cy to which the rules apply shall aid in carrying out the rules. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 417; Pub. L. 95–228, § 2(b), Feb. 10, 1978, 92 Stat. 25; Pub. L. 95–454, title VII, § 703(c)(1), Oct. 13, 1978, 92 Stat. 1217; Pub. L. 96–54, § 2(a)(16), Aug. 14, 1979, 93 Stat. 382; Pub. L. 103–94, § 2(b)(1), Oct. 6, 1993, 107 Stat. 1004; Pub. L. 118–188, § 2(a)(2)(A)(i)(I), Dec. 23, 2024, 138 Stat. 2645.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 633(1) (less function of Civil Service Commis- sion), (2)8 (last sentence). Jan. 16, 1883, ch. 27, § 2(1) (less function of Civil Service Commission), (2) 8 (last sentence), 22 Stat. 403, 404. The reference to the competitive service is sub- stituted for the reference to the Act creating that serv- ice. The reference to reasons for the exceptions is omit- ted as covered by section 1308 of this title. The words ‘‘provide for’’ are substituted for ‘‘provide and declare’’. Paragraph (1) is supplied to preserve the President’s power to except positions from the competitive service, previously implied from the power to except from the first rule in former section 633(2). Authority to make exceptions to so much of former section 633(2) as is re- stated in this section and section 1302(a) is omitted as meaningless. Authority to make exceptions to so much of former section 633(2) as is restated in section 3318(a) is omitted as superseded by former section 857, which is carried into section 3318(a). In the last sentence, the words ‘‘Each officer and individual employed in an agency’’ are substituted for ‘‘officers of the United States in the departments and offices’’ because of the restrictive definition of ‘‘officer’’ in section 2104. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 2024—Par. (2). Pub. L. 118–188 substituted ‘‘3304(b)’’ for ‘‘3304(a)’’. 1993—Par. (2). Pub. L. 103–94 substituted ‘‘and 7203’’ for ‘‘7203, 7321, and 7322’’. 1979—Par. (2). Pub. L. 96–54 amended par. (2) in same manner as amendment by section 703(c)(1) of Pub. L. 95–454. See 1978 Amendment note below. 1978—Par. (2). Pub. L. 95–454 substituted ‘‘7202, 7203’’ for ‘‘7152, 7153’’. Pub. L. 95–228 struck out reference to section 3306(a)(1) of this title. Amendments by section 703(c)(1) and (c)(2) of Pub. L. 95–454 appear to have been inad- vertently reversed. Subsec. (c)(1) purported to amend subsec. (c)(1) of section 2105 of this title, and subsec. (c)(2) purported to amend par. (2) of this section. How- ever, the amendments specified by Pub. L. 95–454, § 703(c)(1) and (2), were impossible to execute literally. Thus, amendment by Pub. L. 95–454, § 703(c)(2) was exe- cuted to section 2105 of this title, and amendment by section 703(c)(1) was executed to this section as the probable intent of Congress. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any pen- alty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or ac- tion for enforcement of that penalty, forfeiture, or li- ability, and no provision of Pub. L. 103–94 to affect any proceedings with respect to which charges were filed on or before 120 days after Oct. 6, 1993, with orders to be issued in such proceedings and appeals taken therefrom as if Pub. L. 103–94 had not been enacted, see section 12 of Pub. L. 103–94, set out as an Effective Date; Savings Provision note under section 7321 of this title. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title. 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. Executive Documents EX. ORD. NO. 11521. VETERANS READJUSTMENT APPOINTMENT FOR VETERANS OF VIETNAM ERA Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, provided: WHEREAS this Nation has an obligation to assist veterans of the armed forces in readjusting to civilian life; WHEREAS the Federal Government, as an employer, should reflect its recognition of this obligation in its personnel policies and practices; WHEREAS veterans, by virtue of their military serv- ice, have lost opportunities to pursue education and training oriented toward civilian careers; WHEREAS the Federal Government is continuously concerned with building an effective workforce, and veterans constitute a major recruiting source; and WHEREAS the development of skills is most effec- tively achieved through a program combining employ- ment with education or training: NOW, THEREFORE, by virtue of the authority vested in me by the Constitution of the United States, by sec- tions 3301 and 3302 of title 5, United States Code, and as President of the United States, it is ordered as follows: Page 380 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3303 SECTION 1. (a) Subject to paragraph (b) of this section, the head of an agency may make an excepted appoint- ment, to be known as a ‘‘veterans readjustment ap- pointment’’, to any position in the competitive service up to and including GS–5 or the equivalent thereof, of a veteran or disabled veteran as defined in section 2108(1), (2), of title 5, United States Code, who: (1) served on active duty in the armed forces of the United States during the Vietnam era; (2) at the time of his appointment has completed not more than fourteen years of education; and (3) is found qualified to perform the duties of the po- sition. (b) Employment under paragraph (a) of this section is authorized only under a training or educational pro- gram developed by an agency in accordance with guide- lines established by the Office of Personnel Manage- ment. (c) An employee given a veterans readjustment ap- pointment under paragraph (a) of this section shall serve subject to: (1) the satisfactory performance of assigned duties; and (2) participation in the training or educational pro- gram under which he is appointed. (d) An employee who does not satisfactorily meet the conditions set forth in paragraph (c) of this section shall be removed in accordance with appropriate proce- dures. (e) An employee serving under a veterans readjust- ment appointment may be promoted, reassigned, or transferred. (f) An employee who completes the training or edu- cational program and who has satisfactorily completed two years of substantially continuous service under a veterans readjustment appointment shall be converted to career-conditional or career employment. An em- ployee converted under this paragraph shall automati- cally acquire a competitive status. (g) In selecting an applicant for appointment under this section, an agency shall not discriminate because of race, color, religion, sex, national origin, or political affiliation. SEC. 2. (a) A person eligible for appointment under section 1 of this order may be appointed only within one year after his separation from the armed forces, or one year following his release from hospitalization or treatment immediately following his separation from the armed forces, or one year after involuntary separa- tion without cause from (i) a veterans readjustment ap- pointment or (ii) a transitional appointment, or one year after the effective date of this order if he is serv- ing under a transitional appointment. (b) The Office of Personnel Management may deter- mine the circumstances under which service under a transitional appointment may be deemed service under a veterans readjustment appointment for the purpose of paragraph (f) of section 1 of this order. SEC. 3. Any law, Executive order, or regulation which would disqualify an applicant for appointment in the competitive service shall also disqualify a person oth- erwise eligible for appointment under section 1 of this order. SEC. 4. For the purpose of this order: (a) ‘‘agency’’ means a military department as defined in section 102 of title 5, United States Code, an execu- tive agency (other than the General Accounting Office [now Government Accountability Office]) as defined in section 105 of title 5, United States Code, and those por- tions of the legislative and judicial branches of the Federal Government and of the government of the Dis- trict of Columbia having positions in the competitive service; and (b) ‘‘Vietnam era’’ means the period beginning Au- gust 5, 1964, and ending on such date thereafter as may be determined by Presidential proclamation or concur- rent resolution of the Congress. SEC. 5. The Office of Personnel Management shall pre- scribe such regulations as may be necessary to carry out the provisions of this order. SEC. 6. Executive Order No. 11397 of February 9, 1968, is revoked. Such revocation shall not affect the right of an employee to be converted to career-conditional or career employment if he meets the requirements of sec- tion 1(d) of Executive Order No. 11397 after the effective date of this order. SEC. 7. This order is effective 14 days after its date. § 3303. Competitive service; recommendations of Senators or Representatives An individual concerned in examining an ap- plicant for or appointing him in the competitive service may not receive or consider a rec- ommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 103–94, § 8(a), Oct. 6, 1993, 107 Stat. 1006; Pub. L. 104–197, title III, § 315(a), Sept. 16, 1996, 110 Stat. 2416.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 642. Jan. 16, 1883, ch. 27, § 10, 22 Stat. 406. The prohibition is restated in positive form. The words ‘‘An individual concerned in examining an appli- cant for or appointing him in the competitive service’’ are substituted for ‘‘any person concerned in making any examination or appointment under this act’’. The word ‘‘applicant’’ is substituted for ‘‘person who shall apply for office or place under the provisions of this act’’. The word ‘‘Representative’’ is substituted for ‘‘Member of the House of Representatives’’. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1996—Pub. L. 104–197 substituted ‘‘Competitive serv- ice; recommendations of Senators or Representatives’’ for ‘‘Political recommendations’’ in section catchline and amended text generally, substituting provisions prohibiting receipt or consideration of recommenda- tions of applicants in competitive service made by Sen- ators or Representatives for provisions which directed that personnel actions be taken without solicitation of or regard to such recommendations from Members of Congress, congressional employees, any elected official of the government of any State (including D.C. and Puerto Rico) or subdivision thereof, or political party official, prohibited such persons from making such rec- ommendations, prohibited employees or applicants from soliciting such recommendations and required no- tification of such prohibition, but allowed for certain exceptions regarding solicitation and consideration of recommendations if subject of recommendation was limited to factors pertinent to work performance, abil- ity, aptitude, general qualifications, related to suit- ability or security standards, or furnished pursuant to law or regulation. 1993—Pub. L. 103–94 substituted ‘‘Political rec- ommendations’’ for ‘‘Competitive service; recommenda- tions of Senators or Representatives’’ as section catch- line and amended text generally. Prior to amendment, text read as follows: ‘‘An individual concerned in exam- ining an applicant for or appointing him in the com- petitive service may not receive or consider a rec- ommendation of the applicant by a Senator or Rep- resentative, except as to the character or residence of the applicant.’’