302-1: Excepted Service Employment

Issuance Date: 12/10/2024

Material Transmitted:

Department of Health and Human Services (HHS) Instruction 302-1, Excepted Service Employment, dated 12/10/2024.

Material Superseded:

HHS Instruction 302-1, Employment in the Excepted Service dated 10/30/2020.

Background:

This Instruction updates the Department’s policy relating to employment in the excepted service consistent with HHS HR delegations, HHS and OPM policy and guidance, and federal laws and regulations.

This policy is effective immediately and must be carried out by HHS Operating and Staff Division Human Resources (HR) Centers in accordance with applicable laws, regulations, collective bargaining agreements, and Departmental policy.

/s/

Jeffery Anoka
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer (Acting)

302-1-00 Sections

302-1-10 Purpose
302-1-20 Coverage and Exclusions
302-1-30 References
302-1-40 Definitions
302-1-50 Responsibilities
302-1-60 General
302-1-70 Classification, Qualifications & Recruitment
302-1-80 Priority Consideration Candidates
302-1-90 Assessment and Selection Procedures
302-1-100 Appointment
302-1-110 Details, Reassignments, and Promotions
302-1-120 Adverse Actions and Appeals
302-1-130 Personnel Actions
302-1-140 Documentation and Accountability

302-1-10 Purpose

This Instruction implements the Department of Health and Human Services (Department or HHS) policy relating to employment in the excepted service. This policy explains the legal and regulatory requirements for excepted service positions that are subject to the provision of Title 5, United States Code (U.S.C.), or subject to statutory requirements to follow the veterans’ preference provisions of Title 5.

When provisions of this policy differ from changes in applicable law or regulation, the changes in law or regulation apply.

302-1-20 Coverage and Exclusions

A. Coverage

Positions filled via government-wide Schedule A and B authorities, unless the authority is specifically exempted by 5 CFR §302.101(c), see exclusion (B)(3) below.
Positions filled via HHS-specific Schedule A and Schedule B authorities, unless the Office of Personnel Management (OPM) exempts in writing the Schedule A or B authority from 5 CFR Part 302 appointment procedures at the time of approval.
Schedule D, Pathways Programs positions, in accordance with 5 CFR §362.105(c)(2) and HHS Instruction 362-1 Pathways Programs.

B. Exclusions

Positions or appointments that are required by the Congress to be confirmed by, or made with the advice and consent of, the Senate (5 CFR §302.101(b)).
Schedule C positions (5 CFR §213.3301 and 5 CFR §302.101(c)).
Other excepted service positions exempt from the 5 CFR Part 302 appointment procedures when the positions are specifically listed under 5 CFR §302.101(c). In absence of HHS-wide guidance, Operating Divisions/Staff Divisions (OpDiv/StaffDiv, or Division) must develop written hiring procedures and apply them uniformly in accordance with the requirements in 5 CFR §302.101(c), the merit system principles (5 U.S.C. §2301), and this Instruction.¹
Administrative Law Judges (ALJ). See HHS Guidance, Attorney, Law Clerk, Legal Intern, and ALJ.
Non-Title 5 excepted authorities may be excluded from part or all provisions of Title 5 depending on the language in the law, statute, or Executive Order (E.O.) authorizing the non-title 5 authority. OpDivs/StaffDivs should consult the OGC to determine coverage and exemptions from Title 5 and this Instruction. In absence of HHS-wide policy, HR Centers must develop written hiring procedures and apply them uniformly in accordance with the non-Title 5 authority and this Instruction, as applicable.²

C. The Department will follow all requirements of 5 USC Chapter 71 involving bargaining conditions of employment for bargaining unit employees. To the extent that provisions of this policy are in specific conflict with a Collective Bargaining Agreement (CBA), the provisions of the CBA govern for bargaining unit positions only.

302-1-30 References

302-1-40 Definitions

Agency is an Executive Agency or Department (HHS), as defined in 5 U.S.C. §105.
Excepted position. A position in the excepted service.
Excepted Service. All positions in the Executive Branch that are specifically excepted from the competitive service either by statute, Executive Order, or by OPM regulation, and are not in the Senior Executive Service (5 U.S.C. §2103).
Preference Eligible. Veterans who are disabled or who served on active duty in the Armed Forces during certain specified periods or in military campaigns, veterans discharged due to sole survivorship, or family members entitled to derived preference. Preference eligible candidates are generally entitled to preference over non-veterans for new appointments in both the competitive and excepted service and in retention during a reduction in force (5 U.S.C. §2108).
Priority Reemployment List (PRL) is a mandatory list Executive agencies must establish to give reemployment consideration and placement assistance to former HHS excepted service employees who have been furloughed or separated by RIF or compensable injury; or who appealed an adverse action to the Merit Systems Protection Board (MSPB) and was found to have been unjustifiably dismissed from the agency but is not entitled to immediate restoration under the MSPB’s decision (5 CFR §302.303). HHS’ PRL is on ServiceNow.
Reemployment List (RL) is a discretionary list Executive agencies may establish to give employment consideration to current and former HHS excepted service employees who are not eligible to be included on the HHS PRL (5 CFR §302.303(c)). An RL has not been established by HHS.

302-1-50 Responsibilities

A. HHS Assistant Secretary for Administration, Office of Human Resources (ASA/OHR):

Establishes Department-wide HR policy and guidance in accordance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
Submits OpDiv/StaffDiv pass over and objection requests to OPM for approval.
Submits OpDiv/StaffDiv requests to OPM for approval to detail an excepted service employee to the competitive service.
Periodically reviews OpDiv/StaffDiv excepted service procedures, actions, qualification standards, and reports to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.

B. OpDiv/StaffDiv HR Centers:

Comply with this Instruction, HHS and OPM policy and guidance, and all applicable federal laws and regulations.
Establish Standard Operating Procedures (SOP) for excepted service recruitment including how their OpDiv/StaffDiv will accept, rate and rank, and select applications, in accordance with 5 CFR §§302.301, 302.302(a), and this Instruction.
Ensure excepted service positions are filled after fair and open competition consistent with the merit system principles and this Instruction.
Ensure the applicant notification requirements under 5 CFR Part 302 and identified in this policy are followed.
Ensure the HHS Priority Reemployment List (PRL) is cleared prior to referring other candidates, in accordance with 5 CFR §302.304(a), this Instruction, and HHS Instruction 330-2, Priority Placement Programs.
The Human Resources Director (HRD) approves and/or submits to ASA/OHR at employmentpolicy@hhs.gov any request for OPM approval to object/pass-over any veteran with a 30% or more compensable service-connected disability. Pass-over and objection requests must contain the information listed in Section 302-1-90(F).
Submit to ASA/OHR at employmentpolicy@hhs.gov a copy of the HRD approval for any objection/pass-over for preference eligibles with less than 30% compensable service-connected disability, or an applicant with derived preference, within 14 calendar days of HRD approval. Such approvals must contain the information listed in Section 302-1-90(F).
Submit to ASA/OHR at employmentpolicy@hhs.gov for OPM approval requests to detail an excepted service employee to a competitive service position in accordance with Section 302-1- 110 and HHS Instruction 300-3, Details and IPA Assignments.
Obtain a written statement from a permanent competitive service employee when an employee voluntarily leaves the competitive service to accept a position in the excepted service (5 CFR §302.102(b)).
Maintain recruitment documentation related to excepted service appointments in accordance with Section 302-1-140 of this policy.

302-1-60 General

Excepted service positions are authorized by law or statute, by the President via Executive Order (E.O.), or by OPM regulation (i.e., Schedules A, B, C, D, or E). Government-wide excepted authorities/positions authorized by OPM are described under 5 CFR Part 213. Agency-specific authorities approved by OPM are listed in OPM’s Consolidated Listing of Schedules A, B, and C Exceptions in the Federal Register.
Excepted service positions are covered by the merit system principles and prohibited personnel practices (5 U.S.C. §§2301 and 2302) and are required by 5 U.S.C. §3320 to be filled ‘in the same manner and under the same conditions required for the competitive service by 5 U.S.C. §§3308-3318.’
Excepted service positions may not be subject to some provisions of Title 5. These exemptions, if any, are specified in the authority, i.e., E.O. or law/statute.

302-1-70 Classification, Qualifications & Recruitment

A. Classification. Unless specifically exempted from 5 U.S.C. Chapter 51 by the excepted authority, excepted service positions are classified using the OPM Position Classification Standards.

B. Qualification Standards. Unless specifically exempted by the applicable excepted authority or the existence of valid HHS or OpDiv/StaffDiv-specific qualification standards, OPM’s Qualification Standards apply. OpDiv/StaffDiv-developed qualification standards for positions covered under this Instruction must adhere to the requirements under 5 CFR §302.202 and be reviewed by ASA/OHR at employmentpolicy@hhs.gov for conformity to the above regulatory requirements prior to use. The OGC may be consulted to ensure the qualification requirements are legally supportable. HR Centers must maintain a permanent record of such qualification standards and provide information about such standards to an applicant upon their request.

C. Recruitment Methods. Unless required by statutory or federal regulatory authority (e.g., Pathways Programs regulations³), 5 U.S.C. §3327 does not require agencies to notify OPM of excepted service vacancies (i.e., USAJOBS). However, the merit system principles apply to the excepted service and OpDiv/StaffDivs must use recruitment methods that notify applicants of excepted service vacancies within their Division consistent with the merit system principles.⁴

Notification options, include, but are not limited to:
1. A notice on the HHS or division’s public facing career page; third-party online job board(s); or a traditional job opportunity announcement (JOA) on USAJOBS.
2. A notice on the OpDiv/StaffDiv intranet career page may be considered in cases where sufficient qualified internal candidates are available for the vacant position(s).
3. Strategic outreach that includes job fairs, universities and/or job-related publications and organizations may be considered in addition to 1. a. or b. above.
Job notices must include information about the vacancy including salary; duties; geographic location; qualification requirements; promotion potential (career ladder), if applicable; and information on how to apply. A reasonable accommodation statement must be included (5 CFR §302.106). Strategic outreach should provide the same job information or a link to the vacancy notice on the career page, job board, etc.
Excepted service job notices/vacancy announcements cannot be restricted to ‘status’ candidates because employees generally acquire competitive status when they hold or previously held a permanent competitive service position.
OpDivs/StaffDivs may use the following options to manage application volume for positions that attract a high number of applicants. The servicing HR Center’s excepted service procedures for receiving applications must address the use of these options (5 CFR §302.301). When one or more of the flexibilities below are used, they must be stated in the JOA, notice, or advertisement and the justification must be clearly documented in the recruitment case file.
1. Limiting the number of days a JOA is open: OpDivs/StaffDivs have the discretion to determine the length of time that a JOA is open. Divisions should give consideration to the types, grade levels, and geographic locations of the positions being filled; and ensure the time allowed provides for fair and open competition, and potential applicants will have reasonable opportunity to apply consistent with the merit system principles.
2. Limiting the number of applications received: OpDivs/StaffDivs have the discretion to set limits on the number of applications they will consider when filling a position (e.g., the first 100 applications received). When using such limits, HR Centers shall accept any application received up until 11:59 p.m. on the day the limit is reached in order to accommodate applicants in non- Eastern time zones.
HR Centers must establish written procedures for recruiting and assessing excepted service positions; apply them uniformly to all applicants; and provide information to applicants upon request in accordance with 5 CFR §302.301 and this Instruction.

302-1-80 Priority Consideration Candidates

OpDivs/StaffDivs must provide selection priority to former HHS excepted service employees registered on HHS’ Priority Reemployment List (PRL) when filling excepted service positions (HHS Instruction, 330-2, Priority Placement Programs).
Qualified candidates on HHS’ PRL must be given selection priority before referring the names of other qualified candidates (5 CFR §§302.103 and 304(a)).
OpDivs/StaffDivs may appoint a candidate who is not a PRL eligible, or a PRL eligible who has a lower standing on HHS’ PRL list, when the PRL eligible(s) qualifications will create an undue interruption to the position. The HR Center must notify each PRL eligible of the reasons for non-selection and must also notify any preference eligible(s) on the PRL list of their right to appeal to the MSPB (5 CFR §302.304(a)). This documentation must be maintained in the recruitment case file.
HR Centers must retain sufficient documentation to demonstrate PRL clearance for each vacancy.
The Career Transition Assistance Plan (CTAP), Interagency Career Transition Assistance Plan (ICTAP) and the Reemployment Priority List (RPL) do not apply to excepted service vacancies (5 CFR §§ 330.211(i); 330.609(i); and 330.707(g)).

302-1-90 Assessment and Selection Procedures

A. Assessment Procedures.

OpDivs/StaffDivs must follow the provisions of 5 CFR Parts 211 and 302 relating to the examination, rating, and selection of an applicant, when a qualified preference eligible, non- preference eligible, or person entitled to priority consideration applies for appointment to a position covered by this Instruction.
Veterans Preference. OpDivs/StaffDivs must ensure veterans’ preference provisions are followed in accordance with 5 U.S.C. §3320; 5 CFR Part 211; and this Instruction when filling excepted service positions. HR Centers must request additional information from applicants when there is conflicting documentation in their application package concerning their claimed veterans’ preference (Letter from the U.S. Office of Special Counsel (OSC) to HHS Office of General Counsel, 12/12/2017). For example, in cases where the applicant submits supporting evidence that shows they are entitled to veterans’ preference, but also provides contradictory evidence that shows they are not entitled to veterans’ preference they are claiming, HR Specialists must request additional information, as necessary, to ensure veterans’ preference is adjudicated properly.
The Indian Health Service must give selection priority in accordance with 25 U.S.C. §5117 prior to applying veterans’ preference provisions.
OpDivs/StaffDivs must use valid job-related assessment methods to evaluate candidates; document its assessment and selection procedures; apply them uniformly; and furnish applicants information on such procedures and their ratings upon request as required by 5 CFR Part 302, Subpart C. Valid assessments measure job-related competencies and are based on reliable rating criteria that are fully documented by the job analysis, produce consistent rating results, and show a direct link to the competencies required for successful performance (29 CFR Part 1607, Uniform Guidelines on Employee Selection Procedures). Assessment tools should be developed and validated by in-house or third-party assessment measurement experts (e.g., Industrial Organizational (I/O) Psychologists) prior to implementation to ensure they are valid, fair, and reliable, meet regulatory requirements, and are legally supportable. OpDiv/StaffDivs are responsible for maintaining documentation to support their assessment methods.

B. Veterans’ preference is granted as follows (5 CFR §302.201):

When eligible candidates are referred without numerical ratings, preference is noted as:
1. ‘CP’ for preference eligibles having compensable service-connected disability of 10% or more (5 U.S.C. §2108(3)(C));
2. ‘XP’ for all other candidates eligible for 10-point veteran preference (5 U.S.C. §2108(3)(D-G);
3. ‘TP’ for candidates eligible for 5-point veteran preference (5 U.S.C. §2108(3)(A-B)); and
4. ‘SSP’ for candidates eligible for sole survivorship preference (5 U.S.C. §2108(3)(H)).
When numerical ratings are used, 10 additional points are given to preference eligibles described under 1. a. and b. above; 5 additional points are granted to preference eligibles described under 1. c. above; and no additional points are given to sole survivorship preference eligibles.

C. Assessment. OpDivs/StaffDivs may evaluate candidates based on eligibility/ineligibility determinations, numerical scores, or a category rating-like process (5 CFR §302.302).

Alternate rating and selection procedures may be developed (i.e., a category rating-like process), to fill excepted service positions, as long as the procedures give preference and priority consideration eligibles at least as much advantage as they would receive under the 5 CFR Part 302 hiring procedures (5 U.S.C §3320; 5 CFR §302.105). Such procedures must be documented and applied uniformly across similar/same types of positions.
Reasons are documented for using a ranked or unranked referral lists (5 CFR §302.302(a)) and the quality ranking factors used, if using numerical rating or category rating-like procedures.
Numerical ratings are assigned on a scale of 100, with each qualified candidate assigned a rating of 70 or more (plus any additional veteran preference points). Numerical ratings are not required when all qualified applicants will be offered immediate employment (5 CFR §302.302(b)).
When there is a high volume of applicants, ratings are only required for a sufficient number of the highest-qualified applicants to meet the OpDiv/StaffDiv’s needs within a reasonable time; however, preference eligible candidates are still considered in the order they would have been considered if all applicants had been assigned ratings (5 CFR §302.302(b)).

D. Certificates and Order of Consideration. Qualified candidates are placed on a certificate in the following order in accordance with 5 CFR §211.102(d)(3), 5 CFR §302.303(d), 5 CFR §302.304.

Priority reemployment (PRL) candidates.. Qualified candidates on HHS’s PRL must be given selection priority before other candidates can be referred, in accordance with 5 CFR §302.304(a), and are placed on a PRL certificate in one of the orders listed in 2. below.
Other candidates are considered in one (1) of the following orders (a, b, c, or d):
1. When candidates are rated only for basic eligibility:
  1. Qualified preference eligibles that have a compensable, service-connected disability of 10% or more;
  2. All other qualified candidates eligible for 10-point veteran preference;
  3. All qualified candidates eligible for 5-point veteran preference;
  4. All qualified candidates eligible for sole survivorship; and lastly
  5. Qualified candidates not eligible for veteran preference.
2. When candidates have been assigned numerical ratings:
  1. Qualified preference eligibles having a compensable, service-connected disability of 10% or more, in order of the augmented ratings; and
  2. All other qualified candidates in the order of their augmented ratings. At each score, qualified candidates eligible for 10-point preference are entered ahead of those eligible for 5-point preference, followed by sole survivorship preference eligibles, then lastly qualified non-preference eligible candidates.
  3. When candidates have the same numerical ratings, preference eligibles are listed ahead of non-preference eligibles (5 CFR §211.102(d)(3)).
3. For professional and scientific positions at the GS-9 grade level and above:
  1. If numerical ratings are assigned, applicants are considered in the order of their scores, augmented for veterans’ preference. When candidates have the same numerical ratings, preference eligibles are listed ahead of non-preference eligibles (5 CFR §211.102(d)(3)); or
  2. If numerical scores have not been assigned, all preference eligibles are considered together regardless of the type of preference, followed by other candidates.
4. Order specified in the OpDiv/StaffDiv’s alternate rating and selection procedures, in accordance with 5 CFR §302.105, and this Section 302-1-90.

E. Selection Procedures. OpDivs/StaffDivs must adhere to the selection procedures under 5 CFR §302.401(a), or its alternate rating procedures, when making selections from priority reemployment (PRL candidates) or a regular certificate. (The Indian Health Service must give selection priority in accordance with 25 U.S.C. §5117, prior to applying the veterans’ preference provisions under 5 CFR Part 302.)

Selections via 5 CFR §302.401(a):
1. When numerical ratings are assigned, selections are made from the highest three candidates listed in Order A, i.e., preference eligibles who have a compensable service-connected disability of 10 percent or more, followed by all other qualified candidates, in the order of their numerical ratings, with preference eligibles listed ahead of non-preference eligibles with the same ratings (5 CFR §211.102(d)(3)).
2. When numerical ratings are not assigned, selections are made from the highest preference category, as long as at least three candidates are in that group. When fewer than three candidates are in the highest preference category, consideration may be expanded to include the next highest preference category.
Selections via an OpDiv/StaffDiv’s alternate rating procedures (5 CFR §362.105):
1. Documented alternate rating and selection procedures must be applied uniformly.
2. If making selections under category rating-like procedures, OpDivs/StaffDivs must select from the highest quality category (i.e., any preference eligible within the highest quality category may be selected; veterans have selection preference over non-veterans; preference eligibles with a 10% or more disability are placed in the highest quality category ahead of the non- preference eligibles, except for scientific or professional positions at the GS- 9 level or higher).

F. Pass over & Objection Procedures.

Pass Overs and Objections of Preference Eligibles Requiring OPM Approval.
1. The following objection and pass over requests require OPM approval before making selections:
  1. A pass over of any preference eligible with a 30 percent or more compensable service- connected disability, in accordance with 5 U.S.C. §3318(c)(2) and the OPM Vet Guide;
  2. A pass over of a preference eligible based on medical disqualification, in accordance with 5 CFR Part 339, specifically 5 CFR §§339.201 and 339.306; and
  3. Objections based on suitability for federal employment for positions in the competitive service (and excepted service, if the excepted service authority or position authorizes non-competitive conversion to the competitive service), for the reasons specified under 5 CFR §731.101.
2. The following supporting documentation must be approved and/or submitted by the HR Director (HRD) to the ASA/OHR at employmentpolicy@hhs.gov for review/concurrence and OPM approval before making any selections:
  1. SF-62, Agency Request to Passover a Preference Eligible or Object to an Eligible, signed by the HRD;
  2. Resume/Application Package, including documents supporting veterans’ preference claim;
  3. Copy of Position Description;
  4. Copy of Vacancy Announcement;
  5. Certificate of Eligibles; and
  6. An explanation of the reason sufficient to sustain an objection/pass over.
3. No correspondence is sent to a 30 percent or more compensable disabled applicant until ASA/OHR concurrence is received. Once ASA/OHR concurrence is received, the HR Center sends a notice to the CPS candidate and submits a copy of the sent notice to employmentpolicy@hhs.gov. Information that must be included in notice(s) is outlined in the DEOH, Chapter 6.
4. Only after OPM has approved the pass over of the preference eligible may the 30 percent or more compensable disabled veteran be passed over and another applicant selected.
Pass Overs and Objections Not Requiring OPM Approval.
1. OpDiv/StaffDiv HRDs may approve or deny objection or pass over requests of preference eligibles with less than 30 percent compensable service-connected disability, or an applicant with derived preference, for competitive service positions within their organization. This authority may not be redelegated below the OpDiv/StaffDiv HRD level.
2. A copy of the HRD’s approval must be sent to ASA/OHR at employmentpolicy@hhs.gov within 14 calendar days of the date of approval and include the same information as in B.1.b. immediately above.
OpDivs/StaffDivs should be mindful of 5 U.S.C. §3320 and 5 CFR §332.406 when considering reasons for passing over a preference eligible, and consult with their legal counsel, if necessary, on whether the justification is likely to meet the standard of making selections in the same manner and under the same conditions required for the competitive service, as required by 5 U.S.C. §3320.

302-1-100 Appointment

Citizenship. Congress generally restricts federal agencies, including HHS, via the annual appropriation acts (i.e., the federal budget) from compensating an individual who is not a U.S. citizen or U.S. national⁵ for federal positions within the U.S., unless certain exceptions apply. OpDivs/StaffDivs must consult the Office of the General Counsel (OGC) before hiring an individual who is not a U.S. citizen or national. Agencies must determine that a non-citizen meets one of the identified exceptions contained within the annual appropriations act, or have a current exemption from the Appropriations Act ban in its annual appropriations or other law, and determine that the non-citizen is authorized to work in the United States, before an OpDiv/StaffDiv can hire and pay a non-U.S. citizen, including permanent U.S. residents. Questions concerning the legal requirements on hiring and paying non-U.S. citizens should be directed to the OGC to ensure the proposed action and any related payments are legally supportable.
Written Statement. When a non-temporary competitive service employee is selected for an excepted service position, a written statement must be obtained from the employee prior to appointment, acknowledging they are voluntarily leaving the competitive service to accept the position in the excepted service (5 CFR §302.102(b)). Such employees generally do not lose appeal rights (see Section 302-1-120 of this Instruction). Employees who previously held a permanent competitive service position retain their competitive service status and may continue to apply to competitive service positions open to ‘status’ candidates. (Employees should be advised to provide a SF-50 showing they previously held a permanent competitive service position when applying to jobs.)
Appointment and Other Effective Dates. Effective dates are established consistent with OPM’s Guide to Processing Personnel Actions, Chapter 3. When an employee enters on duty on a Monday, the first workday of the pay period, the appointment will be effective on Sunday, the beginning date of the pay period. In instances where Monday is a legal holiday and the employee enters on duty on Tuesday, the appointment will be effective on Tuesday, the first actual workday of the pay period. For employees who transfer from another Federal agency without a break in service, the appointment will be effective on Sunday, the beginning of the pay period when Monday is a legal holiday, except as otherwise negotiated between the losing and gaining organization. The effective date of all other new appointments will be made effective on the date the employee enters on duty, i.e., on other days during the pay period as requested by the employing office. HR Center questions should be submitted via ServiceNow to ASA/OHR HR Systems who manages timekeeping and payroll.
Appointment Time Limits. The time limits on temporary, intermittent, or seasonal Schedule A, B, C, or D appointments are at 5 CFR §213.104. (Note: Term appointments are in the competitive service (5 CFR Part 316 and OPM Delegated Examining Operations Handbook, Chapter 2, Definitions) and not covered by this policy.)
Trial Periods. HHS excepted service employees serve a two (2) year trial period. Rules (regulations) on initial trial periods; supervisor and manager trial periods; creditable time; failure to complete a trial period; and performance based and adverse actions taken during trial periods are covered in HHS Instruction 315-1, Probationary and Trial Periods.

302-1-110 Details, Reassignments, And Promotions

Details. Details of excepted service employees are made in accordance with 5 CFR §300.301 and HHS Instruction 300-3, Details and IPA Assignments.
Reassignments.
1. Individuals reassigned to another excepted service position (i.e., without promotion or change to lower grade, level or band) must meet the qualification requirements described in Section 302-1- 60 B. of this Instruction for the position (series and grade).
2. Reassignments to the competitive service are prohibited unless the excepted service employee has competitive status, i.e., previously held a permanent competitive service position and completed a probationary period (5 CFR §212.301).
Promotions.
1. The merit system principles apply to promotions within the excepted service⁶; therefore, the employee must compete/have competed for the proposed position/grade level(s) otherwise the action is a prohibited personnel practice (5 U.S.C. §2302(a)(2)(A)(ii) and (B)).
2. Promotions within the excepted service are not subject to time-in-grade restrictions (5 CFR Part 300, Subpart F); however, employees must meet the qualification requirements for the position (series and grade). Time-in-grade restrictions apply to movement to or within the competitive service; therefore, while promotions within the excepted service are not subject to time-in-grade; promotions upon non-competitive conversion to the competitive service (for excepted service authorities that specifically authorize non-competitive conversion) are subject to time-in-grade restrictions.
3. The requirements such as age, height, and weight in determining qualifications for a promotion for a preference eligible are waived unless the qualification(s) is/are essential to the performance of the duties of the position (5 CFR §302.403).
4. The physical requirements of a position in cases of promotion are waived if, in the opinion of the employing OpDiv/StaffDiv, and after considering the recommendation of an accredited physician, the preference eligible is physically able to perform the duties of the position (5 CFR §302.403).

302-1-120 Adverse Actions And Appeals

Excepted service employees who meet the definition of ‘employee’ under 5 U.S.C. §7511(a)(1)(B)-(C) are generally entitled due process rights and are entitled to advance written notice, an opportunity to respond to a proposed adverse action, and appeal rights to the Merit Systems Protection Board. Servicing Employee Relations staff must be consulted when dealing with unacceptable performance and/or employee misconduct to ensure actions are in compliance with law, regulation, HHS policy, and applicable collective bargaining agreement(s).
Individuals entitled to priority consideration who are preference eligibles, or suffered a compensable injury, have appeal rights to the MSPB if they believe their reemployment rights were violated (5 CFR §§302.103; 302.304(a) and 302.501).
The requirements in 5 CFR 302, Subpart F, including required approvals, employee notice, retention of civil service protections, and right of appeal to the MSPB apply when an agency moves an employee or position from the competitive to the excepted service, or from one excepted service position to another, due to an E.O., law, or regulation. The same requirements in 5 CFR 302, Subpart F, also apply when an employee or position governed by Title 5 is moved to another Title of the U.S. Code (e.g., Title 42) unless the statute/law authorizing the move says otherwise. Servicing employee relations staff must be consulted prior to any such movements to ensure due process requirements are met, in addition to the required approvals specified in 5 CFR 302, Subpart F.

302-1-130 Personnel Actions

OPM’s Guide to Processing Personnel Actions, Chapter 11, Excepted Service Appointments, is used when processing personnel actions, and the specific law/statute, Executive Order (E.O.), or Schedule (A. B, C, etc.) authority that authorizes the appointment must be cited.
Tenure is assigned following guidance in OPM’s Guide to Data Standards. Generally, time- limited or temporary appointments are Tenure Code 3; individuals serving trial periods are assigned Tenure Code 2; and employees who have completed trial periods and are on permanent appointments are Tenure Code 1.

302-1-140 Documentation and Accountability

Recruitment case files, including all documentation sufficient for third-party review, must be retained for a total of two (2) full years after the excepted service appointment, declination of offer, or candidate is no longer under consideration, in accordance with the National Archives and Records Administration (NARA), General Records Schedule 2.1. (Note: For Schedule A, Persons with Disabilities (5 CFR 213.3102(u)), destroy 5 years after candidate enters on duty, is no longer under consideration, or declines offer, in accordance with NARA).
Records involved in litigation that are subject to a litigation hold must be preserved until an official litigation hold lift notice is received from OPM, Department of Justice, courts, or the Office of the General Counsel, etc. that the matter has been fully litigated, or resolved and closed.
ASA/OHR may conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance, and applicable federal laws and regulations.

Endnotes

¹ See HHS Guidance on Attorney, Law Clerk, Legal Intern, and ALJ, and Schedule A Persons With Disabilities for the hiring procedures for these positions.

² See HHS Instructions 42-1, 42-2, and 42-3 for Title 42 Special Consultants, Service Fellows, and Senior Biomedical Research and Biomedical Product Assessment Service (SBRBPAS) positions.

³ 5 CFR §§362.105(b); 362.203(a); 362.303(a). See HHS Instruction 362-1, Pathways Programs.

⁴ “Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity” (5 U.S.C. §2301(1)(b), in accordance with 5 U.S.C. 2302(a)(2)(B) and (b)(12), and OPM Special Study, Excepted Service Hiring Authorities, July 18, 2018).

⁵ A U.S. national is a person born in American Samoa or Swains Island.

⁶ ‘Selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity’ (5 U.S.C. §2301(b)(1)).

Instruction 302-1: Excepted Service Employment