5 USC 3304 - Competitive service; examinations

U.S Code last checked for updates: Nov 22, 2024

§ 3304.

Competitive service; examinations

(a)

The President may prescribe rules which shall provide, as nearly as conditions of good administration warrant, for—

(1)

open, competitive examinations for testing applicants for appointment in the competitive service which are practical in character and as far as possible relate to matters that fairly test the relative capacity and fitness of the applicants for the appointment sought;

(2)

noncompetitive examinations when competent applicants do not compete after notice has been given of the existence of the vacancy; and

(3)

authority for agencies to appoint, without regard to the provision of sections 3309 through 3318, candidates directly to positions for which—

(A)

public notice has been given; and

(B)

the Office of Personnel Management has determined that there exists a severe shortage of candidates (or, with respect to the Department of Veterans Affairs, that there exists a severe shortage of highly qualified candidates) or that there is a critical hiring need.

The Office shall prescribe, by regulation, criteria for identifying such positions and may delegate authority to make determinations under such criteria.

(b)

An individual may be appointed in the competitive service only if he has passed an examination or is specifically excepted from examination under section 3302 of this title. This subsection does not take from the President any authority conferred by section 3301 of this title that is consistent with the provisions of this title governing the competitive service.

(c)

(1)

For the purpose of this subsection, the term “technician” has the meaning given such term by section 8337(h)(1) of this title.

(2)

Notwithstanding a contrary provision of this title or of the rules and regulations prescribed under this title for the administration of the competitive service, an individual who served for at least 3 years as a technician acquires a competitive status for transfer to the competitive service if such individual—

(A)

is involuntarily separated from service as a technician other than by removal for cause on charges of misconduct or delinquency;

(B)

passes a suitable noncompetitive examination; and

(C)

transfers to the competitive service within 1 year after separating from service as a technician.

(d)

The Office of Personnel Management shall promulgate regulations on the manner and extent that experience of an individual in a position other than the competitive service, such as the excepted service (as defined under section 2103) in the legislative or judicial branch, or in any private or nonprofit enterprise, may be considered in making appointments to a position in the competitive service (as defined under section 2102). In promulgating such regulations OPM shall not grant any preference based on the fact of service in the legislative or judicial branch. The regulations shall be consistent with the principles of equitable competition and merit based appointments.

(e)

Employees at any place outside the District of Columbia where the President or the Office of Personnel Management directs that examinations be held shall allow the reasonable use of public buildings for, and in all proper ways facilitate, holding the examinations.

(f)

(1)

Preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.

(2)

If selected, a preference eligible or veteran described in paragraph (1) shall receive a career or career-conditional appointment, as appropriate.

(3)

This subsection shall not be construed to confer an entitlement to veterans’ preference that is not otherwise required by law.

(4)

The area of consideration for all merit promotion announcements which include consideration of individuals of the Federal workforce shall indicate that preference eligibles and veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service are eligible to apply. The announcements shall be publicized in accordance with section 3327.

(5)

The Office of Personnel Management shall prescribe regulations necessary for the administration of this subsection. The regulations shall ensure that an individual who has completed an initial tour of active duty is not excluded from the application of this subsection because of having been released from such tour of duty shortly before completing 3 years of active service, having been honorably released from such duty.

(g)

Eligibility of Department of Defense Employees in Time-limited Appointments to Compete for Permanent Appointments.—

(1)

Definitions.—

In this subsection—

(A)

the term “Department” means the Department of Defense; and

(B)

the term “time-limited appointment” means a temporary or term appointment in the competitive service.

(2)

Eligibility.—

Notwithstanding any other provision of this chapter or any other provision of law relating to the examination, certification, and appointment of individuals in the competitive service, an employee of the Department serving under a time-limited appointment is eligible to compete for a permanent appointment in the competitive service when the Department is accepting applications from individuals within its own workforce, or from individuals outside its own workforce, under merit promotion procedures, if—

(A)

the employee was appointed initially under open, competitive examination under subchapter I of this chapter to the time-limited appointment;

(B)

the employee has served under 1 or more time-limited appointments within the Department for a period or periods totaling more than 2 years without a break of 2 or more years; and

(C)

the employee’s performance has been at an acceptable level of performance throughout the period or periods referred to in subparagraph (B).

(3)

Career-conditional status; competitive status.—

An individual appointed to a permanent position under this section—

(A)

becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and

(B)

acquires competitive status upon appointment.

(4)

Former employees.—

If the Department is accepting applications as described in paragraph (2), a former employee of the Department who served under a time-limited appointment and who otherwise meets the requirements of this section shall be eligible to compete for a permanent position in the competitive service under this section if—

(A)

the employee applies for a position covered by this section not later than 2 years after the most recent date of separation; and

(B)

the employee’s most recent separation was for reasons other than misconduct or performance.

(5)

Regulations.—

The Office of Personnel Management shall prescribe regulations necessary for the administration of this subsection.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 418; Pub. L. 95–454, title IX, § 906(a)(5), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 99–586, Oct. 29, 1986, 100 Stat. 3325; Pub. L. 104–65, §§ 16(a), (b), 17(a), Dec. 19, 1995, 109 Stat. 703; Pub. L. 104–186, title II, § 215(2), Aug. 20, 1996, 110 Stat. 1745; Pub. L. 105–339, § 2, Oct. 31, 1998, 112 Stat. 3182; Pub. L. 106–117, title V, § 511(c), Nov. 30, 1999, 113 Stat. 1575; Pub. L. 107–296, title XIII, § 1312(a)(1), Nov. 25, 2002, 116 Stat. 2290; Pub. L. 108–375, div. A, title XI, § 1105(g), Oct. 28, 2004, 118 Stat. 2075; Pub. L. 109–163, div. A, title XI, § 1104(e)(2), Jan. 6, 2006, 119 Stat. 3450; Pub. L. 111–84, div. A, title XI, § 1102(d)(2), Oct. 28, 2009, 123 Stat. 2485; Pub. L. 115–46, title II, § 213, Aug. 12, 2017, 131 Stat. 967; Pub. L. 117–263, div. A, title XI, § 1108, Dec. 23, 2022, 136 Stat. 2818.)

cite as: 5 USC 3304