5 C.F.R. § 351.403

Competitive level

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(a)(1) Each agency shall establish competitive levels consisting of all positions in a competitive area which are in the same grade (or occupational level) and classification series, and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption.

(2)(i) Except as provided in paragraph (a)(2)(ii) of this section for pay band positions, competitive level determinations are based on each employee's official position of record (including the official position description), not the employee's personal qualifications.

(ii) To establish a competitive level comprised of pay band positions, an agency may supplement an employee's official position of record with other applicable records that document the employee's actual duties and responsibilities.

(3) Sex may not be the basis for a competitive level determination, except for a position OPM designates that certification of eligibles by sex is justified.

(4) A probationary period required by subpart I of part 315 of this chapter for initial appointment to a supervisory or managerial position is not a basis for establishing a separate competitive level.

(5) If a competitive area includes positions in one or more pay bands, each set of interchangeable positions in the pay band under paragraphs (a)(1) through (4) of this section is a separate competitive level (e.g., with interchangeable positions under paragraphs (a)(1) through (4) of this section, each pay band is one competitive level; if the positions are not interchangeable under paragraphs (a)(1) through (4) of this section, the pay band may include multiple competitive levels).

(b) Each agency shall establish separate competitive levels according to the following categories:

(1) By service. Separate levels shall be established for positions in the competitive service and in the excepted service.

(2) By appointment authority. Separate levels shall be established for excepted service positions filled under different appointment authorities.

(3) By pay schedule. Separate levels shall be established for positions under different pay schedules.

(4) By work schedule. Separate levels shall be established for positions filled on a full-time, part-time, intermittent, seasonal, or on-call basis. No distinction may be made among employees in the competitive level on the basis of the number of hours or weeks scheduled to be worked.

(5) By trainee status. Separate levels shall be established for positions filled by an employee in a formally designated trainee or developmental program having all of the characteristics covered in § 351.702(e)(1) through (e)(4) of this part.

(1) A difference in the number of hours or weeks scheduled to be worked by other-than-full-time employees who would otherwise be in the same competitive level;

(2) A requirement to work changing shifts;

(3) The grade promotion potential of the position; or

(4) A difference in the local wage areas when a competitive area includes positions covered by more than one wage-board or similar wage-determining procedure;

(5) A difference in locality payments under 5 U.S.C. 5304 and subpart F of part 531 of this chapter when a competitive level includes more than one locality pay area listed in § 531.603 of this chapter; or

(6) Representative rates in different local commuting areas when a competitive area includes General Schedule (GS) and Federal Wage System (FWS) positions in multiple GS locality pay areas, and/or FWS local wage areas.

[51 FR 319, Jan. 3, 1986, as amended at 60 FR 3062, Jan. 13, 1995; 62 FR 62500, Nov. 24, 1997; 73 FR 29388, May 21, 2008; 73 FR 46532, Aug. 11, 2008]

Notes of Decisions

Cited in 33 cases (1 in the last 5 years), 1974–2024 · leading case: Sharon Andrade v. Charles A. Lauer, Acting Adm'r, Off. of Juv. Just., 729 F.2d 1475 (D.C. Cir. 1984).

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Sharon Andrade v. Charles A. Lauer, Acting Adm'r, Off. of Juv. Just., 729 F.2d 1475 (D.C. Cir. 1984). · cites it 2× “” 5 C.F.R. § 351.403 (a). Because a given competitive area or competitive level seems usually to include only employees within a given agency, a RIF of the kind involved in this case would ordinarily have affected only LEAA’s own employees.”

Ann Crispin v. Dep't of Com., 732 F.2d 919 (Fed. Cir. 1984). · cites it 2× “Thus, I find that the agency has shown by a preponderance of the evidence that it properly established appellant’s competitive level in accordance with 5 C.F.R. § 351.403 (a). [Citations omitted.”

Kay Coles James Dir. of the Off. of Pers. Mgmt. v. Elisabeth Von Zemenszky, & Merit Sys. Prot. Bd., 284 F.3d 1310 (Fed. Cir. 2002). “5 C.F.R. § 351.403 (a). Once the employees are grouped into competitive levels, the agency must order their separation based on each employee’s retention standing, which is based in turn on the employee’s length of service, veteran preference, tenure, and efficiency and…”

Terrie G. Reid v. Dep't of Com., 793 F.2d 277 (Fed. Cir. 1986). “5 C.F.R. § 351.403 (1986). 10 . Subsection (c) of section 3502 was promulgated under Pub.”

Raymond E. Dodd v. Tennessee Valley Auth., 770 F.2d 1038 (Fed. Cir. 1985). · cites it 2× “Dodd appealed his separation to the board, alleging that TVA (1) violated 5 C.F.R. § 351.403 (1982) by defining his competitive level too narrowly, and (2) violated 5 U.”

Dist. of Columbia v. King, 766 A.2d 38 (D.C. 2001). · cites it 2× “*45 5 CFR § 351.403 (a), 51 FR 318 (1986). Subsequently, in 1995, the Federal Office of Personnel Management “reworded [the last clause of § 351.”

Nuclear Regulatory Comm'n v. Fed. Labor Relations Auth., Nat'l Treasury Employees Union, Intervenor, 895 F.2d 152 (4th Cir. 1990). · cites it 2× “5 C.F.R. § 351.403 (a). Separate competitive levels must be established for positions in the competitive service and those in the excepted service.”

J. Patrick Heelen v. Dep't of Com., 154 F.3d 1306 (Fed. Cir. 1998). · cites it 4× “5 C.F.R. § 351.403 (a) (1995). Under this regulation, two positions are in the same competitive level if the incumbent of one can perform the duties of the other “without undue interruption.”

Rasmussen v. United States, 211 Ct. Cl. 260 (Ct. Cl. 1976). “Compare 5 C.F.R. § 351.403 (1974) with id. § 351.”

Eleon Allen, Individually & for Others Similarly Situated v. Margaret Heckler, 780 F.2d 64 (D.C. Cir. 1985). “See 5 C.F.R. § 351.403 (b)(2) (1984). An excepted worker under subsection (h) is free to enter the competitive service at any time by taking the regular civil service exam; the drawback is that the excepted worker must start on the same footing as a first-time applicant.”

Brunton v. United States, 518 F. Supp. 223 (S.D. Ohio 1981). “5 C.F.R. § 351.403 . There were no other positions within FmHA in the same competitive level as the State Director.”

Wilmot v. United States, 205 Ct. Cl. 666 (Ct. Cl. 1974). “The pertinent regulation, 5 C.F.R. § 351.403 (1968), says, in part: (a) Each agency shall establish competitive levels consisting of all positions in a competitive area and in the *682 same grade or occupational level which are sufficiently alike in qualification requirements,…”

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