5 U.S.C. § 3319 — Alternative ranking and selection proce-

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- Page 396 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3319 1 So in original. fice has delegated examining authority under section 1104(a)(2), may establish category rating systems for evaluating applicants for positions in the competitive service, under 2 or more qual- ity categories based on merit consistent with regulations prescribed by the Office of Personnel Management, rather than assigned individual numerical ratings. (b) Within each quality category established under subsection (a), preference-eligibles shall be listed ahead of individuals who are not pref- erence eligibles. For other than scientific and professional positions at GS–9 of the General Schedule (equivalent or higher), qualified pref- erence-eligibles who have a compensable serv- ice-connected disability of 10 percent or more shall be listed in the highest quality category. (c) SELECTION.— (1) IN GENERAL.—An appointing official may select any applicant in the highest quality category or, if fewer than 3 candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second highest quality categories. (2) USE BY OTHER APPOINTING OFFICIALS.— Under regulations prescribed by the Office of Personnel Management, appointing officials other than the appointing official described in paragraph (1) (in this subsection referred to as the ‘‘other appointing official’’) may select an applicant 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. (3) 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. (4) REQUIREMENTS.—The selection of an indi- vidual under paragraph (2)— (A) shall be made in accordance with this subsection; and (B) subject to paragraph (5), may be made without any additional posting under sec- tion 3327. (5) INTERNAL NOTICE.—Before selecting an in- dividual under paragraph (2), and subject to the requirements of any collective bargaining obligation of the other appointing authority (within the meaning given that term in sec- tion 3318(b)(1)), the other appointing official shall— (A) provide notice of the available position to employees of the appointing authority employing the other appointing official; (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. (6) COLLECTIVE BARGAINING OBLIGATIONS.— Nothing in this subsection limits any collec- tive bargaining obligation of an agency under chapter 71. (7) PREFERENCE ELIGIBLES.—Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section 1 3317(b) and 1 3318(c), as applicable, are satisfied. (d) Each agency that establishes a category rating system under this section shall submit in each of the 3 years following that establishment, a report to Congress on that system including information on— (1) the number of employees hired under that system; (2) the impact that system has had on the hiring of veterans and minorities, including those who are American Indian or Alaska Na- tives, Asian, Black or African American, and native Hawaiian or other Pacific Islanders; and (3) the way in which managers were trained in the administration of that system. (e) The Office of Personnel Management may prescribe such regulations as it considers nec- essary to carry out the provisions of this sec- tion. (Added Pub. L. 107–296, title XIII, § 1312(a)(2), Nov. 25, 2002, 116 Stat. 2290; amended Pub. L. 114–137, § 2(b), Mar. 18, 2016, 130 Stat. 311; Pub. L. 115–232, div. A, title XI, § 1107(b)(1), Aug. 13, 2018, 132 Stat. 2005.) AMENDMENT OF SECTION Pub. L. 115–232, div. A, title XI, § 1107(b)(1), (d), Aug. 13, 2018, 132 Stat. 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 amended— (1) by amending the section heading to read as follows: ‘‘§ 3319. Competitive service; selection using category rating’’; and (2) in subsection (c), by striking paragraph (6), redesignating paragraph (7) as paragraph (6), and amending paragraph (6) (as so redesig- nated) to read as follows: (6) Preference eligibles.— (A) Satisfaction of certain requirements.— Notwithstanding paragraphs (1) and (2), an ap- pointing official may not pass over a preference eligible in the same category from which selec- tion is made, unless the requirements of sections 3317(b) and 3318(c), as applicable, are satisfied. (B) 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 section 3318(c)(1), by the head of an agency, has been passed over in accordance with section 3318(c) 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. (C) List of eligibles issued from a standing register; discontinuation of certification.—In the case of lists of eligibles issued from a stand- ing register, when an appointing authority, for Page 397 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 3320 reasons considered sufficient by the Director or the head of an agency, has three times consid- ered and passed over a preference eligible who was certified from a register, certification of the preference eligible for appointment may be dis- continued. However, the preference eligible is entitled to advance notice of discontinuance of certification in accordance with regulations pre- scribed by the Director. See 2018 Amendment notes below. Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in subsec. (b), is set out under section 5332 of this title. PRIOR PROVISIONS A prior section 3319, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 421, related to prohibitions on employment of members of same family in the competitive service, prior to repeal by Pub. L. 95–454, title III, § 307(h)(1), title IX, § 907, Oct. 13, 1978, 92 Stat. 1149, 1227, effective 90 days after Oct. 13, 1978. AMENDMENTS 2018—Pub. L. 115–232, § 1107(b)(1)(A), substituted ‘‘Competitive service; selection using category rating’’ for ‘‘Alternative ranking and selection procedures’’ in section catchline. Subsec. (c)(6). Pub. L. 115–232, § 1107(b)(1)(B), redesig- nated par. (7) as (6) and amended it generally. Prior to amendment, text read as follows: ‘‘Notwithstanding paragraphs (1) and (2), an appointing official may not pass over a preference eligible in the same category from which selection is made, unless the requirements of section 3317(b) and 3318(c), as applicable, are satis- fied.’’ Pub. L. 115–232, § 1107(b)(1)(B), struck out par. (6). Text read as follows: ‘‘Nothing in this subsection limits any collective bargaining obligation of an agency under chapter 71.’’ Subsec. (c)(7). Pub. L. 115–232, § 1107(b)(1)(B), redesig- nated par. (7) as (6). 2016—Subsec. (c). Pub. L. 114–137 added subsec. (c) and struck out former subsec. (c) which read as follows: ‘‘(1) An appointing official may select any applicant in the highest quality category or, if fewer than 3 can- didates have been assigned to the highest quality cat- egory, in a merged category consisting of the highest and the second highest quality categories. ‘‘(2) Notwithstanding paragraph (1), the appointing official may not pass over a preference-eligible in the same category from which selection is made, unless the requirements of section 3317(b) or 3318(b), as applicable, are satisfied.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective on the date on which the Director of the Office of Personnel Man- agement issues final regulations for implementation, 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 Section effective 60 days after Nov. 25, 2002, see sec- tion 4 of Pub. L. 107–296, set out as a note under section 101 of Title 6, Domestic Security. § 3320. Excepted service; government of the Dis- trict of Columbia; selection The nominating or appointing authority shall select for appointment to each vacancy in the excepted service in the executive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the com- petitive service by sections 3308–3318 of this title. This section does not apply to an appoint- ment required by Congress to be confirmed by, or made with the advice and consent of, the Sen- ate. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 422; Pub. L. 115–232, div. A, title XI, § 1107(b)(2), Aug. 13, 2018, 132 Stat. 2005.) AMENDMENT OF SECTION Pub. L. 115–232, div. A, title XI, § 1107(b)(2), (d), Aug. 13, 2018, 132 Stat. 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 amended by striking ‘‘sections 3308–3318’’ and inserting ‘‘sections 3308 through 3319’’. See 2018 Amendment note below. HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 858. June 27, 1944, ch. 287, § 9, 58 Stat. 389. .................. 5 U.S.C. 869. June 27, 1944, ch. 287, § 20, 58 Stat. 391. Former sections 858 and 869 are combined and re- stated for clarity and to conform to section 3318(a). The word ‘‘authority’’ is substituted for ‘‘officer’’ in rec- ognition of the several appointing authorities named in section 2105(a)(1). The words ‘‘shall select for appoint- ment to each vacancy in the expected service in the ex- ecutive branch and in the government of the District of Columbia from the qualified applicants in the same manner and under the same conditions required for the competitive service by sections 3308–3318 of this title’’ are substituted for ‘‘In the unclassified Federal, and District of Columbia, civil service, and in all other po- sitions and employment hereinbefore referred to in (c) of section 851 of this title . . . shall make selection from the qualified applicants in accordance with the provi- sions of this chapter’’. The reference to the excepted service ‘‘in the executive branch’’ is substituted for the exception of the legislative and judicial branches in former section 869. Former section 869 did not prohibit the application of those provisions of the Act of June 27, 1944, which relate to the competitive service in the legislative or judicial branch by reason of the specific provisions of section 311 of the Act of June 10, 1921, as amended (31 U.S.C. 52); 28 U.S.C. 602; and Executive Order No. 67 of June 13, 1895. The reference to appoint- ments of postmasters is omitted from this section since those referred to are in the competitive service. The application of former section 869 to the remainder of the Act of June 27, 1944, is covered by the sections into which the remainder is carried (see Table I). This section merely continues, and does not in any way change, the requirements in former section 858 rel- ative to the selection of applicants for positions in the excepted service. Under this section, the Federal Bu- reau of Investigation and other agencies having posi- tions in the excepted service will continue to fill those positions in the same manner that they have been filled under former section 858. Such excepted appointments are appointments authorized to be made without regard to the statutes, rules, and regulations governing ap- pointments in the competitive service and this is not changed.