HUMAN RESOURCES MANUAL

Instruction 302-1: Employment in the Excepted Service

Issuance Date: 01/30/2009

[Material Transmitted:]{.underline}

HHS Instruction 302-1, Filling Excepted Positions dated January 30, 2009

[Material Superseded:]{.underline}

HHS Instruction 302-1, Filling Excepted Positions, dated April 2, 1996.

[Background:]{.underline}

This Instruction has been revised to reflect changes in the Office of
Personnel Management (OPM) requirements in the Excepted Service and
recent changes in the organization of HHS.

This issuance is effective immediately. Implementation of this issuance
must be carried out in accordance with applicable laws, regulations,
bargaining agreements, and Departmental policy.

Antonia T. Harris

Deputy Assistant Secretary

for Human Resources

INSTRUCTION 302-1

**SUBJECT: EMPLOYMENT IN THE EXCEPTED SERVICE**

302-1-00 Purpose

302-1-10 References

302-1-20 Coverage and Exclusions

302-1-30 Definitions

302-1-40 Responsibilities

302-1-50 Order of Referral for Consideration

302-1-60 Priority Consideration Eligibles

302-1-70 Reappointment, Promotion, and Appeals

302-1-80 Documentation and Accountability

**302-1-00 PURPOSE**

This Instruction sets forth provisions relating to the examination,
rating, and selection for employment in the excepted service of two
categories of applicants: 1) veteran preference eligibles, and 2)
priority consideration eligibles due to work-related compensable
injuries. This policy also clarifies the rating procedures for priority
consideration eligibles who are also entitled to veteran preference

10. **REFERENCES**

```{=html}
<!-- -->
```
A.  5 CFR 213 (Excepted Service)

B.  5 CFR 302 (Employment in the Excepted Service)

C.  5 USC § 2103 (law -- the excepted service)

D.  5 USC § 2108 (law -- veteran; disabled veteran; preference eligible)

E.  5 USC § 3320 (law -- excepted service)

F.  5 CFR 752 (law -- Adverse Actions)

G.  5 USC § 8101 *et seq*. (law -- Compensation for Work Injuries)

    20. **COVERAGE AND EXCLUSIONS**

```{=html}
<!-- -->
```
A.  Coverage

With respect to priority consideration of restoration rights due to
compensable injuries and appeals, all positions covered by 5 USC § 8101
that are in the excepted service. With respect to veteran preference,
each position in the Executive Branch under Title 5, United States Code
that is in the excepted service and is not addressed under Exclusions.

B.  Exclusions

```{=html}
<!-- -->
```
1.  Positions or appointments that are required by the Congress to be
    confirmed by, or made with the advice and consent of the Senate.

```{=html}
<!-- -->
```
2.  Discretionary Exclusions. OPDIVs have the option to apply veteran
    preference procedures to the positions listed below. They are
    advised to follow the principle of veteran preference as far as
    administratively feasible, i.e., document reasons for nonselection
    of a qualified and available preference eligible applicant, furnish
    him/her with such reasons upon his/her request, and advise regarding
    appeal rights to the Merit Systems Protection Board.

```{=html}
<!-- -->
```
a.  Positions filled by persons appointed without pay or at pay of
    \$1.00 a year;

b.  Positions outside the continental United States and outside the
    State of Hawaii and the Commonwealth of Puerto Rico when filled by
    persons resident in the locality, and positions in the State of
    Hawaii and the Commonwealth of Puerto Rico when paid in accordance
    with prevailing wage rates;

c.  Positions which the exigencies of the national defense program
    demands be filled immediately before lists of qualified applicants
    can be established or used, but appointments to these positions
    shall be temporary appointments not to exceed 1 year which may be
    renewed for 1 additional year at the discretion of the agency;

d.  Positions filled by appointees serving on an irregular or occasional
    basis whose hours or days of work are not based on a prearranged
    schedule and who are paid only for the time when actually employed
    or for services actually performed;

e.  Positions paid on a fee basis;

f.  Positions included in Schedule A and similar types of positions when
    OPM agrees with the Department that the positions should be included
    hereunder;

g.  Positions included in Schedule C and positions excepted by statute
    which are of a confidential, policy-making, or policy-advocating
    nature;

h.  Student Trainee positions when filled under Schedule B;

i.  Attorney positions;

j.  Positions filled by reemployment of an individual in the same OPDIV
    and commuting area, at the same or lower grade, and under the same
    appointing authority as the position last held, *provided that*
    there are no candidates eligible for the position on the
    reemployment priority list; and

k.  Positions for which a critical hiring need exists.

C. Bargaining Unit Employees

The provisions of this Instruction pertaining to conditions of
employment of bargaining unit employees- e.g., the filling of an
excepted position within the scope of the bargaining unit -- are fully
negotiable in accordance with 5 USC Chapter 71. Therefore, when the
provisions of this Instruction differ from the requirements contained in
applicable collective bargaining agreement(s), the agreement takes
precedence for bargaining unit employees.

**302-1-30** **DEFINITIONS**

A.  [Excepted position]{.underline}. A position in the excepted service.

B.  [Excepted Service]{.underline}. Consists of those civil service
    positions which are not in the competitive service or the Senior
    Executive Service; includes all positions in the Executive Branch of
    the Federal Government which are specifically excepted from the
    competitive service by statute, by the President or by the Office of
    Personnel Management.

C.  [Five-point preference (TP]{.underline}). Given to those honorably
    separated veterans (this means an honorable or general discharge)
    who served on active duty (not active duty for training) in the
    Armed Forces, as provided in 5 USC § 2108.

D.  [Priority consideration]{.underline}. Preferential treatment granted
    employees furloughed or separated without misconduct, from a
    position without time limit, because of a compensable injury and
    whose recovery takes more than one year from the date compensation
    began. To be eligible, the person must apply for reappointment to
    his or her former agency within 30 days of the date of cessation of
    compensation.

E.  [Priority Reemployment List]{.underline}. A list to give
    consideration to former employees who are non-veteran preference
    eligibles and have been furloughed or involuntarily separated from a
    continuing appointment without delinquency or misconduct.

F.  [Reemployment List]{.underline}. A list to give consideration to
    current and former employees who are to be considered for future
    employment and who are not eligible for inclusion on the priority
    reemployment list.

G.  [Reemployment Priority List]{.underline}. The mechanism used to give
    first priority reemployment consideration to former employees
    separated by reduction in force or fully recovered from a
    compensable injury after more than 1 year.

H.  [Ten-point preference (CP]{.underline}) or (CPS). Given to those
    honorably separated veterans who qualify as disabled veterans
    because they have served on active duty in the Armed Forces
    (including training service in the Reserves or National Guard) at
    any time and have a present service-connected disability of more
    than 10%, but less than 30% or are receiving compensation,
    disability retirement benefits, or pension from the military or the
    Department of Veterans Affairs; or are Purple Heart recipients. A
    CPS eligible has a present service-connected disability of 30% or
    more.

I.  [Ten-point preference (XP]{.underline}). Given to the spouse of a
    veteran unable to work because of a service-connected disability if
    he/she has been unable to qualify for any appointment in the civil
    service or in the government of the District of Columbia, the
    unmarried widow or widower of certain deceased veterans, as defined
    in 5 USC § 2108(1)(A), or the mother of a veteran who died in
    service or who is permanently and totally disabled is eligible for
    this preference only under certain conditions having to do with her
    marital status and the disability status of her husband, as set
    forth in 5 USC § 2108(3)(F) and (G).

**302-1-40** **RESPONSIBILITIES**

A. OPDIVs are responsible for:

1.  Ensuring the compliance of the requirements of this policy within
    their respective organizations;

2.  Documenting reasons for non-selection of a veteran preference
    eligible or priority consideration eligible;

3.  At the request of a qualified and available preference or priority
    consideration eligible, providing written reasons for non-selection
    and appeal rights to the Merit Systems Protection Board.

4.  Informing a non-temporary competitive service candidate, in writing,
    of the loss of competitive service status and rights if appointed to
    an excepted service position;

```{=html}
<!-- -->
```
B.  Operating Human Resources Organizations (OHROs) are responsible for:

```{=html}
<!-- -->
```
1.  Advising OPDIV managers and supervisors on procedures for complying
    with veteran preference and priority consideration for employees
    with compensable injuries when filling excepted service vacancies;

2.  Including a reasonable accommodation statement in announcements for
    vacancies in the excepted service;

3.  Establishing definite rules regarding the acceptance, rating, and
    ranking of applications;

4.  Documenting reasons to use ranked or unranked evaluation procedures
    and making such information available to an applicant upon his or
    her request;

5\. Ensuring reasons are documented for non-selection of a veteran
preference or priority

consideration eligible;

6\. Obtaining a statement from the competitive service candidate in
writing, acknowledging s(he)

is voluntarily leaving the competitive service to accept the position in
the excepted service.

50. **ORDER OF REFERRAL FOR CONSIDERATION**

A. Ranking

OHROs shall enter the names of all applicants rated qualified for the
position in order of numerical score, if used, and preference
eligibility, in the following descending order:

1.  Preference eligibles designated as (CP or CPS) (having a
    compensable, service-connected disability of 10 percent or more),
    for 10 point veteran preference, unless the vacancy is for a
    professional position at the GS-9 level or above, or equivalent;

2.  All other candidates eligible for 10-point (XP) veteran preference;

3.  All candidates eligible for 5-point (TP) veteran preference; and

4.  Qualified candidates not eligible for veteran preference.

5.  Military retirees at or above the rank of major or equivalent are
    not entitled to preference unless they qualify as disabled veterans.

B. Evaluation of Veteran Qualifications

1.  The evaluation of qualifications may be a determination of
    eligibility or ineligibility based upon the requirements in the
    vacancy announcement, or may include qualitative rating of
    candidates. OHROs will document the rationale to use ranked or
    unranked procedures and make such information available to an
    applicant at his or her request.

2.  OHROs must adopt procedures to ensure the consideration of
    preference eligibles in the order in which they would have been
    considered if all applicants had been assigned numerical ratings.
    Applicants must be furnished notices of the rating assigned upon
    their request.

3.  The qualification requirements must include: 1) a waiver of
    requirements as to age, height, and weight for each preference
    eligible when the requirements are not essential to the performance
    of the duties of the position; and 2) a provision for waiver of
    physical requirements for each preference eligible when the OHRO,
    after giving consideration to the recommendation of an accredited
    physician, finds that the applicant is physically able to discharge
    the duties of the position.

**302-1-60 PRIORITY CONSIDERATION ELIGIBLES**

A. Priority Reemployment Lists

1.  OHROs must establish a reemployment priority list that contains the
    names of any of the following applicants who are rated qualified and
    eligible to receive priority consideration for a vacant position in
    the excepted service:

```{=html}
<!-- -->
```
a.  The name of each former employee of the department who has been
    furloughed or separated from a continuing appointment without
    delinquency or misconduct, is a veteran preference eligible, and
    applies for reemployment. Candidates in this category are considered
    for positions in the commuting area where they were separated unless
    the OPDIV elects to provide broader consideration.

b.  The name of each former employee of the Department who is found by
    the Merit Systems Protection Board to have been unjustifiably
    dismissed from an OPDIV, and is a veteran preference eligible, but
    who is not entitled to immediate restoration under the Board\'s
    decision. Candidates in this category are considered in the
    commuting area from which separated unless the Board\'s decision
    specifies a broader or different area or the Department elects to
    afford broader geographic consideration.

c.  The name of each former employee of the Department who has been
    furloughed or separated due to compensable injury sustained under
    the provisions of 5 USC § 8101 *et seq*. who is not entitled to
    immediate restoration, and who is eligible for priority
    consideration under 5 C.F.R. Part 302. Candidates in this category
    are considered in the commuting area where they last served and, if
    the OPDIV determines that an appropriate vacancy is unlikely to
    occur in that area during the candidates\' period of reemployment
    priority, in other locations for which they are available.

d.  At the Department's discretion, the name of each former HHS employee
    who is not a preference eligible, has been furloughed or
    involuntarily separated from a continuing appointment without
    delinquency or misconduct, and applies for reemployment. Candidates
    in this category are considered in the geographic area specified by
    the Department.

```{=html}
<!-- -->
```
2.  The Department will maintain a Reemployment Priority List for a
    minimum of two years.

```{=html}
<!-- -->
```
B.  Reemployment List and Regular Employment List

```{=html}
<!-- -->
```
1.  The Department may establish a [reemployment list]{.underline} to
    give additional consideration to former employees who are
    non-veteran preference eligibles and have been furloughed or
    involuntarily separated from a continuing appointment without
    delinquency or misconduct. OPDIVs may provide reemployment
    consideration after the Reemployment Priority List is exhausted to
    such employees who are not eligible for inclusion on the priority
    reemployment

> list. After consideration of applicants on the reemployment list,
> OPDIVs can consider applicants on the regular employment list.

2.  OPDIVs must consider all qualified candidates on the HHS
    reemployment priority list before considering candidates from their
    reemployment list, if any, or regular employment list. OHRO's will
    establish [Reemployment]{.underline} and/or [regular employment
    lists]{.underline} and ensure OPDIVs consider such applicants who
    have been assigned eligible and qualified ratings, in Order A, Order
    B, or Order C, as described below, with the exception of applicants
    for professional and scientific positions at the GS-9 and above.

```{=html}
<!-- -->
```
a.  Order A*. First,* the name of each qualified preference eligible who
    has a compensable, service-connected disability and is entitled to
    10-point preference (CP or CPS) in the order of his/her numerical
    ranking; and *second*, the name of each other qualified applicant in
    the order of his/her numerical ranking, if applicable. Order A must
    be used when there is not an established [Reemployment
    List]{.underline}.

b.  Order B*. First,* the name of each qualified preference eligible who
    has a compensable, service-connected disability and is entitled to
    10-point preference (CP) and whose name appears on the agency\'s
    R[eemployment list]{.underline} in the order of his/her numerical
    ranking; *second*, the name of each qualified preference eligible
    who is entitled to 10-point preference (CP) and whose name appears
    on the agency\'s [regular employment list]{.underline}, in the order
    of his/her numerical ranking; *third,* the name of each other
    qualified applicant on the agency\'s [Reemployment
    list]{.underline}, in the order of his/her numerical ranking; and
    *fourth*, the name of each other qualified applicant on the
    agency\'s [regular employment list]{.underline}, in the order of
    his/her numerical ranking.

c.  Order C. *First,* the name of each qualified preference eligible who
    is entitled to 10-point preference (CP) and whose name appears on
    the agency\'s [Reemployment list]{.underline}, in the order of
    his/her numerical ranking; *second*, the name of each other
    qualified applicant on the agency\'s [Reemployment
    list]{.underline}, in the order of his/her numerical ranking;
    *third,* the name of each qualified preference eligible who is
    entitled to 10-point preference (CP, and whose name appears on the
    [agency\'s regular employment list]{.underline}, in the order of
    his/her numerical ranking; and *fourth*, the name of each other
    qualified applicant on the agency\'s regular employment list, in the
    order of his/her numerical ranking.

3\. Consideration of Professional and Scientific positions. OPDIVs will
consider applicants who have been assigned eligible numerical score
ratings for professional and scientific positions at the GS--9 level and
above, or equivalent, in the following order:

a.  Applicants on the Department's [Reemployment list]{.underline}, if
    any*.* If numerical scores have been assigned, the applicants will
    be considered in the order of their augmented scores. If numerical
    scores have not been assigned, all preference eligibles will be
    considered together regardless of the type of preference, followed
    by all other [priority reemployment]{.underline} candidates; and/or

b.  Applicants on the Department's [regular employment
    list]{.underline}*.* If numerical scores have been assigned, the
    applicants will be considered in the order of their augmented
    scores. If numerical scores have not been assigned, all preference
    eligibles will be considered together regardless of the type of
    preference, followed by all other candidates.

C. Selection

1.  When making an appointment from a priority reemployment,
    reemployment, or regular list on which candidates have not received
    numerical scores, the OPDIV must make a selection from the highest
    available preference category, as long as at least three candidates
    remain in that group. When fewer than three candidates remain in the
    highest category, consideration may be expanded to include the next
    category.

2.  When making an appointment from a list on which candidates have
    received numerical scores, the OPDIV must make its selection for
    each vacancy from not more than the highest three names available
    for appointment in the order provided in section
    302-1-60(B)(2)(a)-(c), unless category rating was used.

3.  Under either of the above selection methods, an OPDIV is not
    required to accord an applicant on its priority reemployment or
    reemployment list the preference consideration required if

> the list on which the applicant\'s name appears does not contain the
> names of at least three preference eligibles.

D. Nonselection

When an OPDIV passes over the name of a preference eligible who is
entitled to priority

consideration and selects a nonpreference eligible, it must record its
reasons for so doing and shall furnish a copy of those reasons to the
preference eligible or his/her representative on

request, along with notification of his or her right to appeal to the
Merit Systems Protection Board. An OPDIV may discontinue consideration
of the name of a preference eligible for a position if, on three
occasions, the OPDIV considered him/her for the position and passed over
his/her name and recorded its reasons for so doing.

**302-1-70 REAPPOINTMENT, PROMOTIONS, AND APPEALS**

A.  OPDIVs may reappoint a current or former permanent employee of the
    executive branch of the Federal Government who is a preference
    eligible to a vacant position without regard to the names of
    qualified applicants on the HHS priority reemployment, reemployment,
    or regular employment list.

B.  HHS will waive requirements such as age, height, and weight in
    determining qualifications for a promotion for a preference eligible
    unless the qualification(s) is/are essential to the performance of
    the duties of the position; and

C.  HHS will waive physical requirements if an accredited physician
    recommends that the preference eligible is physically able to
    perform efficiently the duties of the position of the promotion.

D.  Individuals entitled to priority consideration may appeal a
    violation of his/her restoration rights to the Merit System
    Protection Board.

**302-1-80 DOCUMENTATION AND ACCOUNTABILITY**

A.  OPDIVs will document and maintain records of nonselection of veteran
    preference eligibles and priority consideration eligibles for three
    years following the appointment date of the selection. OHROs will
    also maintain copies of the nonselections.

B.  OHROs will document and maintain records of the reasons for the
    decision to use ranked or unranked selection referral procedures
    and, for ranked actions, the quality ranking factors used for three
    years following the appointment date of the selection.

C.  Office of Human Resources/Assistant Secretary for Administration and
    Management will conduct periodic accountability reviews to analyze
    compliance with the administration of veteran preference and
    priority consideration requirements governing excepted appointments
    and conduct case reviews to ensure that all appointments adhere to
    regulations.