U.S. Code » Title 5 » Part PART III— EMPLOYEES › Subpart Subpart B— Employment and Retention › Chapter CHAPTER 33— EXAMINATION, SELECTION, AND PLACEMENT › Subchapter SUBCHAPTER I— EXAMINATION, CERTIFICATION, AND APPOINTMENT

5 U.S.C. § 3312

Preference eligibles; physical qualifications; waiver

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(a) In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Office of Personnel Management or other examining agency shall waive—(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and(2) physical requirements if, in the opinion of the Office or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible’s last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 420; Pub. L. 95–454, title III, § 307(c), title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

Historical and Revision Notes

Derivation

U.S. Code

Revised Statutes and

Statutes at Large

 

5 U.S.C. 854 (1st 2 sentences, less so much as relates to promotion, retention, and transfer).

June 27, 1944, ch. 287, § 5 (1st 2 sentences, less so much as relates to promotion, retention, and transfer), 58 Stat. 388.

The section is restated for clarity and conciseness. The words “for which examination is given” and “for which the examination is given” are omitted as surplusage. The application of this section to the excepted service in the executive branch and the government of the District of Columbia is preserved by section 3320.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial NotesAmendments

1978—Pub. L. 95–454 designated existing provisions as subsec. (a), substituted “Office of Personnel Management” and “Office” for “Civil Service Commission” and “Commission”, respectively, and added subsec. (b).

Statutory Notes and Related SubsidiariesEffective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Notes of Decisions
Cited in 13 cases (2 in the last 5 years), 1974–2023 · leading case: Ali Padash v. Immigr. & Naturalization Serv., 358 F.3d 1161 (9th Cir. 2004).
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Ali Padash v. Immigr. & Naturalization Serv., 358 F.3d 1161 (9th Cir. 2004). “”); 5 U.S.C. § 3312 (b) (directing the “Office [of Personnel Management to] make a final determination on the physical ability of the preference eligible to perform the duties of the position .”
Am. Fed'n of Gov't Employees v. Martin R. Hoffman, Sec'y of the Army, 543 F.2d 930 (D.C. Cir. 1976). · cites it 3× “Appellants contend that the reserve membership requirement operates to deprive veterans of their rights under the Veterans’ Preference Act of 1944 and, more particularly, 5 U.S.C. §§ 3312 , 3351, 3363, 3504 (1970).”
Mouton-Miller v. MSPB, 985 F.3d 864 (Fed. Cir. 2021). “Mouton-Miller’s demotion to be an agency action subject to Board review, she must have completed the probationary period referred to in 5 U.S.C. § 3312 (a)(2). As described supra, § 3312(a) permits the President to provide for a probationary period before appointments to the…”
Jolley v. Dep't of Hous. & Urban Dev., 299 F. App'x 969 (Fed. Cir. 2008). · cites it 3× “Specifically, he contends that the Board did not address HUD’s failure to use 5 U.S.C. § 3312 in connection with its hiring.”
Victor Rosario CARTAGENA, Plaintiff, Appellant, v. Sec'y OF the NAVY of the United States, Defendant, Appellee, 618 F.2d 130 (1st Cir. 1980). “Massey was a veteran these requirements are generally waived, see: 5 U.S.C. §§ 3312 , 3351, 3363, cf. also: Massachusetts v.”
Brunton v. United States, 518 F. Supp. 223 (S.D. Ohio 1981). “Preference eligible veterans are afforded special procedural and substantive safeguards in removal and other adverse action proceedings. Section 7512(a) of Title 5, U.”
Morse v. Merit Sys. Prot. Bd., 621 F.3d 1346 (Fed. Cir. 2010). “5 U.S.C. § 3312 . The latter expands the age waiver for preference eligible veterans to also include selection for appointment in the excepted service, which includes the Federal Air Marshal position sought by Mr.”
Lynch v. Dep't of the Army, 245 F. App'x 13 (Fed. Cir. 2007). · cites it 2× “Finally, it is undisputed that the Army did not comply with the requirements of 5 U.S.C. § 3312 (b). The Army admits that the Board appeared to have erred when it ignored the fact that Lynch was 30% disabled and thus subject to the requirements of § 3312(b), but the Army claims…”
Reed v. Reno, 146 F.3d 392 (6th Cir. 1998). “McGuire argues that because she is a preference-eligible veteran, the Veterans Preference Act, 5 U.S.C. § 3312 (a)(1), creates a waiver of the maximum entry age requirement in her case.”
Conrad v. United States Postal Serv., 494 F. Supp. 761 (M.D.N.C. 1980). · cites it 5× “5 U.S.C. § 3312 . 3 Plaintiffs contend that failure to grant disabled veterans unlimited leave for medical treatment of service-related injuries violates the Fifth Amendment, the 39 U.”
Am. Fed'n of Gov't Employees v. Resor, 387 F. Supp. 63 (D.D.C. 1974). · cites it 2× “See 5 U.S.C. §§ 3312 , 3351, 3363, 3504. Plaintiffs contend that only Congress may accomplish this abrogation of statutory rights, again drawing support for this position from the National Guard Technician Act, which specifically provided for the exemption of the Guard…”
George LeFevre v. Dep't of the Army (MSPB 2023). “¶27 In this case, by contrast, 5 U.S.C. § 3312 , the hiring procedure the agency used to select the appellant for this position, was lawful and authorized by HR officials; the decision to switch hiring authorities was “routine”; the selecting 6 The language of 5 U.”
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