5 U.S.C. § 3318 — Competitive service; selection from cer-

Page 393 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3318 names certified under paragraph (1) shall be not less than three. (b) DISCONTINUANCE OF CERTIFICATION.—When an appointing authority, for reasons considered sufficient by the Director or head of an agency, has three times considered and passed over a preference eligible who was certified from a reg- ister, the Director or head of any agency may discontinue certifying the preference eligible for appointment. The Director or the head of an agency shall provide to such preference eligible notice of the intent to discontinue certifying such preference eligible prior to the discontinu- ance of certification. (c) REGULATIONS.—The Director shall prescribe regulations for the administration of this sec- tion. Such regulations shall include the estab- lishment of mechanisms for identifying the eli- gibles who will be considered for each vacancy. Such mechanisms may include cut-off scores. (d) DEFINITION.—In this section, the term ‘‘Di- rector’’ means the Director of the Office of Per- sonnel Management. HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 857 (1st sen- tence and 2d pro- viso). June 27, 1944, ch. 287, § 8 (1st sentence and 2d proviso), 58 Stat. 389. In subsection (a), the word ‘‘authority’’ is substituted for ‘‘officer’’ in recognition of the several appointing authorities named in section 2105(a)(1). The words ‘‘in the competitive service’’ have been added for clarity. Application of the section to the excepted service in the executive branch and to the government of the Dis- trict of Columbia, as provided in former section 858, is carried into section 3320. In subsection (b), the word ‘‘thereafter’’ is omitted as unnecessary. 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 1979—Subsec. (a). Pub. L. 96–54, § 2(a)(14), substituted ‘‘Office of Personnel Management’’ for ‘‘Civil Service Commission’’. Subsec. (b). Pub. L. 96–54, § 2(a)(15), amended subsec. (b) in same manner as amendment by Pub. L. 95–454. See 1978 Amendment note set out below. 1978—Subsec. (b). Pub. L. 95–454 which purported to amend section 3317b of this title by substituting ‘‘Of- fice’’ for ‘‘Commission’’ was executed to subsec. (b) of this section as the probable intent of Congress. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Pub. L. 115–232, div. A, title XI, § 1107(d), Aug. 13, 2018, 132 Stat. 2005, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [enacting this section and section 3318 of this title, amending sections 3319 and 3320 of this title, and re- pealing this section and section 3318 of this title] shall take effect on the date on which the Director of the Of- fice of Personnel Management issues final regulations to implement sections 3317, 3318, and 3319 of title 5, United States Code, as amended or added by this sec- tion. ‘‘(2) REGULATIONS REQUIRED.—The Director shall issue regulations under paragraph (1) not later than one year after the date of enactment of this section [Aug. 13, 2018].’’ 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. § 3318. Competitive service; selection from cer- tificates (a) The nominating or appointing authority shall select for appointment to each vacancy from the highest three eligibles available for ap- pointment on the certificate furnished under section 3317(a) of this title, unless objection to one or more of the individuals certified is made to, and sustained by, the Office of Personnel Management for proper and adequate reason under regulations prescribed by the Office. (b) OTHER APPOINTING AUTHORITIES.— (1) IN GENERAL.—During the 240-day period beginning on the date of issuance of a certifi- cate of eligibles under section 3317(a), an ap- pointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the ‘‘other appoint- ing authority’’) may select an individual from that certificate in accordance with this sub- section for an appointment to a position that is— (A) in the same occupational series as the position for which the certification of eligi- bles was issued (in this subsection referred to as the ‘‘original position’’); and (B) at a similar grade level as the original position. (2) APPLICABILITY.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing au- thority only if the announcement of the origi- nal position provided notice that the resulting list of eligible candidates may be used by an- other appointing authority. (3) REQUIREMENTS.—The selection of an indi- vidual under paragraph (1)— (A) shall be made in accordance with sub- section (a); and (B) subject to paragraph (4), may be made without any additional posting under sec- tion 3327. (4) INTERNAL NOTICE.—Before selecting an in- dividual under paragraph (1), and subject to the requirements of any collective bargaining obligation of the other appointing authority, the other appointing authority shall— (A) provide notice of the available position to employees of the other appointing author- ity; (B) provide up to 10 business days for em- ployees of the other appointing authority to apply for the position; and (C) review the qualifications of employees submitting an application. (5) COLLECTIVE BARGAINING OBLIGATIONS.— Nothing in this subsection limits any collec- Page 394 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3318 tive bargaining obligation of an agency under chapter 71. (c)(1) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not a pref- erence eligible, such authority shall file written reasons with the Office for passing over the pref- erence eligible. The Office shall make the rea- sons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed infor- mation from the appointing authority in sup- port of the passing over of the preference eligi- ble. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the ap- pointing authority and to the preference eligi- ble. The appointing authority shall comply with the findings of the Office. (2) In the case of a preference eligible de- scribed in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this subsection, notify the pref- erence eligible of the proposed passover, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, be- fore completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notifica- tion was timely sent to the preference eligible’s last known address. (3) A preference eligible not described in para- graph (2) of this subsection, or his representa- tive, shall be entitled, on request, to a copy of— (A) the reasons submitted by the appointing authority in support of the proposed passover, and (B) the findings of the Office. (4) In the case of a preference eligible de- scribed in paragraph (2) of this subsection, the functions of the Office under this subsection may not be delegated. (d) When three or more names of preference eligibles are on a reemployment list appropriate for the position to be filled, a nominating or ap- pointing authority may appoint from a register of eligibles established after examination only an individual who qualifies as a preference eligi- ble under section 2108(3)(C)–(G) of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 90–83, § 1(8), Sept. 11, 1967, 81 Stat. 197; Pub. L. 95–454, title III, § 307(d), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224; Pub. L. 114–137, § 2(a), Mar. 18, 2016, 130 Stat. 310.) REPEAL AND REENACTMENT OF SECTION Pub. L. 115–232, div. A, title XI, § 1107(a), (d), Aug. 13, 2018, 132 Stat. 2003, 2005, provided that, effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementation, with such regu- lations due not later than one year after Aug. 13, 2018, this section is repealed and a new sec- tion 3318 is enacted to read as follows: § 3318. Competitive service; selections using nu- merical ratings (a) IN GENERAL.—An appointing authority shall select for appointment from the eligibles certified for appointment on a certificate fur- nished under section 3317(a), unless objection to one or more of the individuals certified is made to, and sustained by, the Director of the Office of Personnel Management or the head of an agency to which the Director has delegated ex- amining authority under section 1104(a)(2), for proper and adequate reason under regulations prescribed by the Director. (b) OTHER APPOINTING AUTHORITIES.— (1) IN GENERAL.—During the 240-day period beginning on the date of issuance of a certifi- cate of eligibles under section 3317(a), an ap- pointing authority other than the appointing authority requesting the certificate (in this subsection referred to as the ‘‘other appoint- ing authority’’) may select an individual from that certificate in accordance with this sub- section for an appointment to a position that is— (A) in the same occupational series as the position for which the certification of eligi- bles was issued (in this subsection referred to as the ‘‘original position’’); and (B) at a similar grade level as the original position. (2) APPLICABILITY.—An appointing authority requesting a certificate of eligibles may share the certificate with another appointing au- thority only if the announcement of the origi- nal position provided notice that the resulting list of eligible candidates may be used by an- other appointing authority. (3) REQUIREMENTS.—The selection of an indi- vidual under paragraph (1)— (A) shall be made in accordance with sub- section (a); and (B) subject to paragraph (4), may be made without any additional posting under sec- tion 3327. (4) INTERNAL NOTICE.—Before selecting an in- dividual under paragraph (1), the other ap- pointing authority shall— (A) provide notice of the available position to employees of the other appointing author- ity; (B) provide up to 10 business days for em- ployees of the other appointing authority to apply for the position; and (C) review the qualifications of employees submitting an application. (c) PASS OVER.— (1) IN GENERAL.—Subject to subparagraph (2), if an appointing authority proposes to pass over a preference eligible certified for appoint- ment under subsection (a) and select an indi- vidual who is not a preference eligible, the ap- pointing authority shall file written reasons with the Director or the head of the agency for passing over the preference eligible. The Di- rector or the head of the agency shall make the reasons presented by the appointing au- thority part of the record of the preference eli- gible and may require the submission of more detailed information from the appointing au- Page 395 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3319 thority in support of the passing over of the preference eligible. The Director or the head of the agency shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2). When the Director or the head of the agency has completed review of the proposed pass-over of the preference eligi- ble, the Director or the head of the agency shall send its findings to the appointing au- thority and to the preference eligible. The ap- pointing authority shall comply with the find- ings. (2) PREFERENCE ELIGIBLE INDIVIDUALS WHO HAVE A COMPENSABLE SERVICE-CONNECTED DIS- ABILITY.—In the case of a preference eligible described in section 2108(3)(C) who has a com- pensable service-connected disability of 30 per- cent or more, the appointing authority shall notify the Director under paragraph (1) and, at the same time, notify the preference eligible of the proposed pass-over, of the reasons for the proposed pass-over, and of the individual’s right to respond to those reasons to the Direc- tor within 15 days of the date of the notifica- tion. The Director shall, before completing the review under paragraph (1), require a dem- onstration by the appointing authority that the notification was timely sent to the pref- erence eligible’s last known address. (3) FURTHER CONSIDERATION NOT REQUIRED.— When a preference eligible, for reasons consid- ered sufficient by the Director, or in the case of a preference eligible described in paragraph (1), by the head of an agency, has been passed over in accordance with this subsection for the same position, the appointing authority is not required to give further consideration to that preference eligible while selecting from the same list for a subsequent appointment to such position. (4) DELEGATION PROHIBITION.—In the case of a preference eligible described in paragraph (2), the functions of the Director under this sub- section may not be delegated to an individual who is not an officer or employee of the Office of Personnel Management. (d) SPECIAL RULE REGARDING REEMPLOYMENT LISTS.—When the names of preference eligibles are on a reemployment list appropriate for the position to be filled, an appointing authority may appoint from a register of eligibles estab- lished after examination only an individual who qualifies as a preference eligible under subpara- graph (C), (D), (E), (F), or (G) of section 2108(3). (e) CONSIDERATION NOT REQUIRED.—In accord- ance with regulations prescribed by the Direc- tor, an appointing officer is not required to con- sider an eligible who has been considered by the appointing officer for three separate appoint- ments from the same or different certificates for the same position. (f) REGULATIONS.—The Director shall prescribe regulations for the administration of this sec- tion. (d)[sic] DEFINITION.—In this section, the term ‘‘Director’’ means the Director of the Office of Personnel Management. HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large (a), (b) ....... 5 U.S.C. 633(2)2. Jan. 16, 1883, ch. 27, § 2(2)2, 22 Stat. 404. 5 U.S.C. 857 (less 1st sentence, 2d pro- viso, and last sen- tence). June 27, 1944, ch. 287, § 8 (less 1st sentence, 2d pro- viso, and last sentence), 58 Stat. 389. Aug. 14, 1953, ch. 485, § 2, 67 Stat. 582. (c) ............. 5 U.S.C. 864 (less 1st sentence). June 27, 1944, ch. 287, § 15 (less 1st sentence), 58 Stat. 391. The word ‘‘authority’’ is substituted for ‘‘officer’’ in recognition of the several appointing authorities named in section 2105(a)(1). In subsection (a), the provisions of former section 633(2)2 are merged in the requirement of former section 857, since the certificate must be of the three highest on the register and the nominating or appointing em- ployee may select one of the three. In subsection (c), the prohibition in former section 864 is restated in positive form. The words ‘‘an indi- vidual who qualifies as a preference eligible under sec- tion 2108(3)(B)–(F)’’ are substituted for ‘‘ten-point pref- erence eligibles’’. 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 2016—Subsecs. (b) to (d). Pub. L. 114–137 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively. 1978—Subsec. (a). Pub. L. 95–454, § 906(a)(2), (3), sub- stituted ‘‘Office of Personnel Management’’ and ‘‘Of- fice’’ for ‘‘Civil Service Commission’’ and ‘‘Commis- sion’’, respectively. Subsec. (b). Pub. L. 95–454, § 307(d), designated exist- ing provisions as par. (1), substituted provisions re- specting authority of the Office with respect to the se- lection procedures applicable, for provisions respecting authority of the Commission with respect to the selec- tion procedures applicable, and added pars. (2) to (4). 1967—Subsec. (c). Pub. L. 90–83 substituted ‘‘section 2108(3)(C)–(G)’’ for ‘‘section 2108(3)(B)–(F).’’ See Histor- ical and Revision Notes under section 3305 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Repeal and reenactment of section effective on the date on which the Director of the Office of Personnel Management issues final regulations for implementa- tion, with such regulations due not later than one year after Aug. 13, 2018, see section 1107(d) of Pub. L. 115–232, set out as a note under section 3317 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. REGULATIONS Pub. L. 114–137, § 2(d), Mar. 18, 2016, 130 Stat. 312, pro- vided that: ‘‘Not later than 1 year after the date of en- actment of this Act [Mar. 18, 2016], the Director of the Office of Personnel Management shall issue an interim final rule with comment to carry out the amendments made by this section [amending this section and sec- tions 3319 and 9510 of this title].’’ § 3319. Alternative ranking and selection proce- dures (a) The Office, in exercising its authority under section 3304, or an agency to which the Of-