Excepted Service Procedures for Pass Over of 30 Percent or More Disabled Veterans
In light of the decision of the United States Court of Appeals for the Federal Circuit in Gingery v. Department of Defense, an agency that wishes to pass over any preference eligible with a compensable, service-connected disability of 30 percent or more who has applied for a position in the excepted service subject to the appointment procedures in 5 CFR Part 302 must send its request to OPM for adjudication. (Part 302 procedures apply only to excepted service positions covered under title 5, United States Code, which have been excepted from the competitive service by the President or by OPM.)
This does not apply to hiring for positions (e.g., attorneys) exempt from part 302 procedures pursuant to 5 CFR 302.101(c). The Gingery panel did not overrule Patterson v. Department of Interior, which sustained section 302.101(c), and OPM's adoption of the standard that agencies filling positions that are exempt from Part 302 requirements need only follow the principle of veterans' preference as far a administratively feasible, i.e., consider veteran status as a positive factor when reviewing applications.
Office of Personnel Management regulations governing the application of Veterans' preference in excepted appointments are in 5 CFR Part 302.
5 U.S.C. 3320 and 5 CFR Part 302