§ 302.401 Selection and appointment

5 CFR 302.401(a)(a) Selection—(1) Unranked lists. When making an appointment from a priority reemployment, reemployment, or regular list on which candidates have not received numerical scores, an agency must make its selection from among the qualified preference eligibles, as long as at least three candidates remain in that group. When fewer than three preference eligibles remain, consideration may be expanded to include the non-preference eligibles in accordance with paragraph (b) of this section, passing over a preference applicant.

5 CFR 302.401(a)(2)(2) Numerical lists. When making an appointment from a list on which candidates have received numerical scores, an agency must use one of the methodologies identified below to determine the number of applicants referred for selection. A selecting official may select any eligible candidate referred for selection. However, a selecting official may not pass over a preference eligible to select a lower standing non-preference eligible unless the agency has complied with the pass-over procedures in paragraph (b) of this section. The selection mechanism must be determined before soliciting for applications and be made available to applicants upon their request. The mechanism used must be clearly documented in the recruitment file and available for reconstruction or third-party review. The agency may determine, based on the position to be filled, which of the following mechanisms will best meet the hiring needs of the agency and result in at least three names for consideration for appointment in the order provided in § 302.304. In selecting an appropriate mechanism, agencies should consider the assessment(s) used, historical applicant data, current labor market conditions, and other factors appropriate for the hiring action.

5 CFR 302.401(a)(2)(i)(i) The agency may establish a cut-off score based on the assessment(s) used, supported by job analysis data;

5 CFR 302.401(a)(2)(ii)(ii) The agency may use a cut-off score based on business necessity (e.g., a cut-off score based on the agency's need to keep processing of the expected number of applicants manageable because of its use of a costly or labor-intensive assessment tool such as a structured interview);

5 CFR 302.401(a)(2)(iii)(iii) The agency may use a set number of the highest ranked eligible applicants; or

5 CFR 302.401(a)(2)(iv)(iv) The agency may use a set percentage of the highest ranked eligible applicants.

5 CFR 302.401(a)(3)(3) Category rating. When making appointments from a list on which candidates have been placed in quality categories, in accordance with 5 CFR part 337, subpart C, an agency may select any eligible candidate(s) in the highest quality category; except the selecting official may not select a non-preference eligible over a preference eligible unless the agency has complied with the pass-over procedures in paragraph (b) of this section. If there are fewer than three candidates in the highest quality category, the agency may combine (merge) the top two quality categories and make selections from the newly merged category. The newly merged category is the new highest quality category. Preference eligibles must be listed ahead of non-preference eligibles in the newly merged category.

5 CFR 302.401(a)(4)(4) Conditions. Under any of the above selection methods, an agency is not required to—

5 CFR 302.401(a)(4)(i)(i) Accord an applicant on its priority reemployment or reemployment list the preference consideration required by § 302.304 if the list on which the applicant's name appears does not contain the names of at least three preference eligibles; or

5 CFR 302.401(a)(4)(ii)(ii) Consider an applicant who has previously been considered three times in accordance with § 332.405 or a preference eligible if consideration of his/her name for the position has been discontinued as provided in paragraph (b) of this section.

5 CFR 302.401(b)(b) Passing over a preference applicant. When an agency, in making an appointment as provided in paragraph (a) of this section, passes over the name of a preference eligible, it shall follow the procedures in 5 U.S.C. 3318(c) and 3319(c) as described in the Delegated Examining Operations Handbook. An agency may discontinue consideration of the name of a preference eligible for a position as described in 5 U.S.C. 3318(c).