5 C.F.R. § 302.401

Selection and appointment

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(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.

(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.

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

(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);

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

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

(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.

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

(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

(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.

(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).

[55 FR 9407, Mar. 14, 1990, as amended at 85 FR 63191, Oct. 7, 2020; 90 FR 43145, Sept. 8, 2025]

Notes of Decisions

Cited in 12 cases (2 in the last 5 years), 1998–2024 · leading case: Gingery v. Dep't of Def., 550 F.3d 1347 (Fed. Cir. 2008).

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Gingery v. Dep't of Def., 550 F.3d 1347 (Fed. Cir. 2008). · cites it 18× “5 C.F.R. § 302.401 (a). When using a category rating system, "an agency must make its selection from the highest available preference category, as long as at least three candidates remain in that category.”

Dean v. Dep't of Labor, 808 F.3d 497 (Fed. Cir. 2015). · cites it 2× “Gingery, the agency followed 5 C.F.R. § 302.401 (b), which applied to the excepted service and only required the agency to record its reasons for passing over a preference-eligible veteran and furnish a copy to the veteran if requested.”

John W. BLUE, Plaintiff-Appellant, v. Sheila WIDNALL, Officially as Sec'y of the Air Force, Defendant-Appellee, 162 F.3d 541 (9th Cir. 1998). “Blue argues that the Air Force’s failure to record and inform him of the reasons it selected a non-veteran’s preference eligible candidate over him, as required by 5 C.F.R. § 302.401 (b), is evidence of pretext.”

Gingery v. Dep't of Def., 392 F. App'x 855 (Fed. Cir. 2010). · cites it 2× “§ 3318 (b), instead followed the procedures set forth in 5 C.F.R. § 302.401 (b). We held that 5 C.”

Spigner v. Dep't of Air Force, 25 F. App'x 863 (Fed. Cir. 2001). · cites it 2× “201 , erroneously considered the position subject to excepted service rules, including 5 C.F.R. § 302.401 . 2 The MSPB, in its initial decision by the AJ, continued the error of applying § 302.”

Jarrard v. Dep't of Just., 669 F.3d 1320 (Fed. Cir. 2012). “The agency applied OPM regulation 5 C.F.R. § 302.401 (b), which required an agency passing over a preference-eligible candidate only to “record its reasons” and “furnish a copy” to the candidate if requested.”

Spigner v. Dep't of the Air Force, 143 F. App'x 336 (Fed. Cir. 2005). · cites it 2× “The Board reopened the case to modify the opinion, but affirmed the AJ’s initial decision.”

Joe Cox v. Dep't of Homeland Sec. (MSPB 2014). · cites it 4× “304 (b), which specifies the order in which an agency shall consider candidates for excepted service positions; and (2) 5 C.F.R. § 302.401 , which governs the selection and appointment of candidates for excepted service positions.”

Blue v. Widnall, 152 F.3d 1149 (9th Cir. 1998). “Blue argues that the Air Force’s failure to record and inform him of the reasons it selected a non-veteran’s preference eligible candidate over him, as required by 5 C.F.R. § 302.401 (b), is evidence of pretext.”

DeMontbreun v. Dep't of the Navy, 296 F. App'x 933 (Fed. Cir. 2008). · cites it 2× “Because there were fewer than three candidates in Category 1 for each city, Navy also considered candidates from lower categories according to 5 C.F.R. § 302.401 . Navy ultimately selected can *934 didates in each city from these lower categories.”

Joseph Early v. Off. of Pers. Mgmt. (MSPB 2023). “Because VEOA and USERRA provide a procedure for the petitioner to contest 7 both his nonselection and the validity of the challenged regu lations, we conclude that equivalent remedies are available.”

Eric Williams v. Dep't of Def. (MSPB 2024). “3d 1347, 1349-50, 1353-54 (2008) (invalidating 5 C.F.R. § 302.401 (b) (2008)). However, it later agreed with OPM that attorney hiring was excepted from the passover provision because Congress has prohibited the rating of attorney candidates.”

— 5 C.F.R. § 302.401(b) — 1 case

Gingery v. Dep't of Def., 550 F.3d 1347 (Fed. Cir. 2008). “5 C.F.R. § 302.401 (a). When using a category rating system, "an agency must make its selection from the highest available preference category, as long as at least three candidates remain in that category.”

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