5 C.F.R. § 332.404
Order of selection from certificates
An appointing officer, with sole regard to merit and fitness, shall select any eligible candidate certified for appointment on a certificate of eligibles, except the hiring manager may not pass over a preference eligible to select a lower standing non-preference eligible on the certificate unless the agency complies with pass over procedures in accordance with § 332.406.
Notes of Decisions
Cited in 13
cases, 1983–2019 · leading case: Nyunt v. Tomlinson, 543 F. Supp. 2d 25 (D.D.C. 2008).
Nyunt v. Tomlinson, 543 F. Supp. 2d 25 (D.D.C. 2008). ““Pursuant to 5 C.F.R. § 332.404 , commonly referred to as the ‘Rule of Three,’ a selection [of the individual to fill the position] must be made from among the three highest-ranked applicants on the certificate of eligibles.”
Etokie v. Duncan, 202 F. Supp. 3d 139 (D.D.C. 2016). “, 65:14-67-18; see also 5 C.F.R. § 332.404 (“An appointing officer, with sole regard to merit and fitness, shall select an eligible .”
Hannon v. Chater, 887 F. Supp. 1303 (N.D. Cal. 1995). “5 C.F.R. § 332.404 . "This is the so-called 'rule of three'.”
Hondros v. United States Civil Serv. Comm'n, 720 F.2d 278 (3rd Cir. 1983). “5 C.F.R. § 332.404 (1983). With a few exceptions not here relevant, eligibles appointed from a register become “career-conditional” employees.”
Nat'l Treasury Employees Union v. Horner, 854 F.2d 490 (D.C. Cir. 1988). “5 C.F.R. § 332.404 (1988). When warranted by “conditions of good administration,” the President is authorized by statute to specify “necessary exceptions of positions from the competitive service.”
Kligman v. Internal Revenue Serv., 272 F. App'x 166 (3rd Cir. 2008). “” See 5 C.F.R. §§ 332.404 , 332.405. 1 Kligman argued, however, that instead of being the subject of a determination under the “rule of three” he was, in fact, found unsuitable for the position by the IRS because of a previous felony conviction for conspiracy and mail fraud in…”
Hannon v. Chater, 900 F. Supp. 1276 (N.D. Cal. 1995). “§ 3318 (a); see also 5 C.F.R. § 332.404 (accord). Hannon emphasizes the language “shall select” as imposing a requirement that a position be filled, whereas the Government focuses on the phraseology "highest three eligibles” as necessitating three available candidates for any…”
Morales v. Dep't of Homeland Sec., 475 F. App'x 749 (Fed. Cir. 2012). “” 5 C.F.R. § 332.404 . 3 As a result, Mr. Morales avers that the Board failed to take into account facts, applied the wrong law, and failed to consider important grounds for relief.”
Cotty P. O'Leary v. Off. of Pers. Mgmt. (MSPB 2016). “Peters only performed ministerial functions and that she did not consider his merit and fitness in accordance with 5 C.F.R. § 332.404 . RPFR File, Tab 1 at 3; see 5 C.”
O'Leary v. Off. of Pers. Mgmt., 708 F. App'x 669 (Fed. Cir. 2017). “According to O’Leary, because 5 C.F.R. § 332.404 provides that “[a]n appointing officer, with sole regard to merit and fitness, shall select an eligible for .”
Menoken v. Weichert (D.D.C. 2019). “5 C.F.R. § 332.404 . As a result, the agency cannot simply select any candidate who appears on a certificate, but it must generally proceed in score order.”
Barkalow v. Soc. Sec. Admin. (Fed. Cir. 2006). “” 1 5 C.F.R. § 332.404 , in its entirety, provides: An appointing officer, with sole regard to merit and fitness, shall select an eligible for: (a) The first vacancy from the highest three eligibles on the certificate who are available for appointment; and (b) The second and…”
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