39–006

105TH CONGRESS REPT. 105–40 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1

VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1997

MARCH 20, 1997.—Ordered to be printed

Mr. BURTON, from the Committee on Government Reform and

Oversight, submitted the following

R E P O R T

[To accompany H.R. 240]

[Including cost estimate of the Congressional Budget Office]

The Committee on Government Reform and Oversight, to whom

was referred the bill (H.R. 240) to amend title 5, United States

Code, to provide that consideration may not be denied to preference

eligibles applying for certain positions in the competitive service,

and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as

amended do pass.

CONTENTS

Page

I. Background and Need for the Legislation ................................................... 9

II. Legislative Hearings and Committee Actions ............................................. 13

III. Committee Hearings and Written Testimony ............................................. 13

IV. Explanation of the Bill .................................................................................. 16

V. Compliance with Rule XI .............................................................................. 19

VI. Budget Analysis and Projections .................................................................. 19

VII. Cost Estimate of the Congressional Budget Office ..................................... 20

VIII. Specific Constitutional Authority for this Legislation ................................ 22

IX. Changes in Existing Law .............................................................................. 22

X. Committee Recommendation ........................................................................ 34

XI. Congressional Accountability Act; Public Law 104–1 ................................. 34

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof

the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Veterans Employment Opportunities Act of 1997’’.

SEC. 2. EQUAL ACCESS FOR VETERANS.

(a) COMPETITIVE SERVICE.—Section 3304 of title 5, United States Code, is amended by adding at the end the following:
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‘‘(f)(1) No preference eligible, and no individual (other than a preference eligible)

who has been separated from the armed forces under honorable conditions after 3

or more years of active service, shall be denied the opportunity to compete for an

announced vacant position within an agency, in the competitive service or the excepted service, by reason of—

‘‘(A) not having acquired competitive status; or

‘‘(B) not being an employee of such agency.

‘‘(2) Nothing in this subsection shall prevent an agency from filling a vacant position (whether by appointment or otherwise) solely from individuals on a priority

placement list consisting of individuals who have been separated from the agency

due to a reduction in force and surplus employees (as defined under regulations prescribed by the Office).’’.

(b) CIVIL SERVICE EMPLOYMENT INFORMATION.— (1) VACANT POSITIONS.—Section 3327(b) of title 5, United States Code, is

amended by striking ‘‘and’’ at the end of paragraph (1), by redesignating paragraph (2) as paragraph (3), and by inserting after paragraph (1) the following:

‘‘(2) each vacant position in the agency for which competition is restricted to

individuals having competitive status or employees of such agency, excluding

any position under paragraph (1), and’’.

(2) ADDITIONAL INFORMATION.—Section 3327 of title 5, United States Code, is

amended by adding at the end the following:

‘‘(c) Any notification provided under this section shall, for all positions under subsection (b)(1) as to which section 3304(f) applies and for all positions under subsection (b)(2), include a notation as to the applicability of section 3304(f) with respect thereto.

‘‘(d) In consultation with the Secretary of Labor, the Office shall submit to Congress and the President, no less frequently than every 2 years, a report detailing,

with respect to the period covered by such report—

‘‘(1) the number of positions listed under this section during such period;

‘‘(2) the number of preference eligibles and other individuals described in section 3304(f)(1) referred to such positions during such period; and

‘‘(3) the number of preference eligibles and other individuals described in section 3304(f)(1) appointed to such positions during such period.’’.

(c) GOVERNMENTWIDE LISTS.— (1) VACANT POSITIONS.—Section 3330(b) of title 5, United States Code, is

amended to read as follows:

‘‘(b) The Office of Personnel Management shall cause to be established and kept

current—

‘‘(1) a comprehensive list of all announcements of vacant positions (in the

competitive service and the excepted service, respectively) within each agency

that are to be filled by appointment for more than 1 year and for which applications are being or will soon be accepted from outside the agency’s work force;

and

‘‘(2) a comprehensive list of all announcements of vacant positions within each

agency for which applications are being or will soon be accepted and for which

competition is restricted to individuals having competitive status or employees

of such agency, excluding any position required to be listed under paragraph

(1).’’.

(2) ADDITIONAL INFORMATION.—Section 3330(c) of title 5, United States Code,

is amended by striking ‘‘and’’ at the end of paragraph (2), by redesignating

paragraph (3) as paragraph (4), and by inserting after paragraph (2) the following:

‘‘(3) for all positions under subsection (b)(1) as to which section 3304(f) applies

and for all positions under subsection (b)(2), a notation as to the applicability

of section 3304(f) with respect thereto; and’’.

(3) CONFORMING AMENDMENT.—Section 3330(d) of title 5, United States Code,

is amended by striking ‘‘The list’’ and inserting ‘‘Each list under subsection (b)’’.

(d) PROVISIONS RELATING TO THE UNITED STATES POSTAL SERVICE.—

(1) IN GENERAL.—Subsection (a) of section 1005 of title 39, United States

Code, is amended by adding at the end the following:

‘‘(5)(A) The provisions of section 3304(f) of title 5 shall apply with respect to the

Postal Service in the same manner and under the same conditions as if the Postal

Service were an agency within the meaning of such provisions.

‘‘(B) Nothing in this subsection shall be considered to require the application of

section 3304(f) of title 5 in the case of any individual who is not an employee of

the Postal Service if—

‘‘(i) the vacant position involved is to be filled pursuant to a collective-bargaining agreement;
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‘‘(ii) the collective-bargaining agreement restricts competition for such position

to individuals employed in a bargaining unit or installation within the Postal

Service in which the position is located;

‘‘(iii) the collective-bargaining agreement provides that the successful applicant shall be selected on the basis of seniority or qualifications; and

‘‘(iv) the position to be filled is within a bargaining unit.

‘‘(C) The provisions of this paragraph shall not be modified by any program developed under section 1004 of this title or any collective-bargaining agreement entered

into under chapter 12 of this title.’’.

(2) CONFORMING AMENDMENT.—The first sentence of section 1005(a)(2) of title

39, United States Code, is amended by striking ‘‘title.’’ and inserting ‘‘title, subject to paragraph (5) of this subsection.’’.

SEC. 3. SPECIAL PROTECTIONS FOR PREFERENCE ELIGIBLES IN REDUCTIONS IN FORCE.

(a) IN GENERAL.—Section 3502 of title 5, United States Code, as amended by section 1034 of the National Defense Authorization Act for Fiscal Year 1996 (Public

Law 104–106; 110 Stat. 430), is amended by adding at the end the following:

‘‘(g)(1) A position occupied by a preference eligible shall not be placed in a singleposition competitive level if the preference eligible is qualified to perform the essential functions of any other position at the same grade (or occupational level) in the

competitive area. In such cases, the preference eligible shall be entitled to be placed

in another competitive level for which such preference eligible is qualified. If the

preference eligible is qualified for more than one competitive level, such preference

eligible shall be placed in the competitive level containing the most positions.

‘‘(2) For purposes of paragraph (1)—

‘‘(A) a preference eligible shall be considered qualified to perform the essential

functions of a position if, by reason of experience, training, or education (and,

in the case of a disabled veteran, with reasonable accommodation), a reasonable

person could conclude that the preference eligible would be able to perform

those functions successfully within a period of 150 days; and

‘‘(B) a preference eligible shall not be considered unqualified solely because

such preference eligible does not meet the minimum qualification requirements

relating to previous experience in a specified grade (or occupational level), if

any, that are established for such position by the Office of Personnel Management or the agency.

‘‘(h) In connection with any reduction in force, a preference eligible whose current

or most recent performance rating is at least fully successful (or the equivalent)

shall have, in addition to such assignment rights as are prescribed by regulation,

the right, in lieu of separation, to be assigned to any position within the agency conducting the reduction in force—

‘‘(1) for which such preference eligible is qualified under subsection (g)(2)—

‘‘(A) that is within the preference eligible’s commuting area and at the

same grade (or occupational level) as the position from which the preference

eligible was released, and that is then occupied by an individual, other than

another preference eligible, who was placed in such position (whether by

appointment or otherwise) within 6 months before the reduction in force if,

within 12 months prior to the date on which such individual was so placed

in such position, such individual had been employed in the same competitive area as the preference eligible; or

‘‘(B) that is within the preference eligible’s competitive area and that is

then occupied by an individual, other than another preference eligible, who

was placed in such position (whether by appointment or otherwise) within

6 months before the reduction in force; or

‘‘(2) for which such preference eligible is qualified that is within the preference eligible’s competitive area and that is not more than 3 grades (or pay

levels) below that of the position from which the preference eligible was released, except that, in the case of a preference eligible with a compensable service-connected disability of 30 percent or more, this paragraph shall be applied

by substituting ‘5 grades’ for ‘3 grades’.

In the event that a preference eligible is entitled to assignment to more than 1 position under this subsection, the agency shall assign the preference eligible to any

such position requiring no reduction (or, if there is no such position, the least reduction) in basic pay. A position shall not, with respect to a preference eligible, be considered to satisfy the requirements of paragraph (1) or (2), as applicable, if it does

not last for at least 12 months following the date on which such preference eligible

is assigned to such position under this subsection.

‘‘(i) A preference eligible may challenge the classification of any position to which

the preference eligible asserts assignment rights (as provided by, or prescribed by
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regulations described in, subsection (h)) in an action before the Merit Systems Protection Board.

‘‘(j)(1) Not later than 90 days after the date of the enactment of the Veterans Employment Opportunities Act of 1997, each Executive agency shall establish an agencywide priority placement program to facilitate employment placement for employees who—

‘‘(A)(i) are scheduled to be separated from service due to a reduction in force

under—

‘‘(I) regulations prescribed under this section; or

‘‘(II) procedures established under section 3595; or

‘‘(ii) are separated from service due to such a reduction in force; and

‘‘(B)(i) have received a rating of at least fully successful (or the equivalent)

as the last performance rating of record used for retention purposes; or

‘‘(ii) occupy positions excluded from a performance appraisal system by law,

regulation, or administrative action taken by the Office of Personnel Management.

‘‘(2)(A) Each agencywide priority placement program under this subsection shall

include provisions under which a vacant position shall not (except as provided in

this paragraph or any other statute providing the right of reemployment to any individual) be filled by the appointment or transfer of any individual from outside of

that agency (other than an individual described in subparagraph (B)) if—

‘‘(i) there is then available any individual described in subparagraph (B) who

is qualified for the position; and

‘‘(ii) the position—

‘‘(I) is at the same grade or pay level (or the equivalent) or not more than

3 grades (or grade intervals) below that of the position last held by such

individual before placement in the new position;

‘‘(II) is within the same commuting area as the individual’s last-held position (as referred to in subclause (I)) or residence; and

‘‘(III) has the same type of work schedule (whether full-time, part-time,

or intermittent) as the position last held by the individual.

‘‘(B) For purposes of an agencywide priority placement program, an individual

shall be considered to be described in this subparagraph if such individual—

‘‘(i)(I) is an employee of such agency who is scheduled to be separated, as described in paragraph (1)(A)(i); or

‘‘(II) is an individual who became a former employee of such agency as a result of a separation, as described in paragraph (1)(A)(ii), excluding any individual who separated voluntarily under subsection (f); and

‘‘(ii) satisfies clause (i) or (ii) of paragraph (1)(B).

‘‘(3)(A) If after a reduction in force the agency has no positions of any type within

the local commuting areas specified in this subsection, the individual may designate

a different local commuting area where the agency has continuing positions in order

to exercise reemployment rights under this subsection. An agency may determine

that such designations are not in the interest of the Government for the purpose

of paying relocation expenses under subchapter II of chapter 57.

‘‘(B) At its option, an agency may administratively extend reemployment rights

under this subsection to include other local commuting areas.

‘‘(4)(A) In selecting employees for positions under this subsection, the agency shall

place qualified present and former employees in retention order by veterans’ preference subgroup and tenure group.

‘‘(B) An agency may not pass over a qualified present or former employee to select

an individual in a lower veterans’ preference subgroup within the tenure group, or

in a lower tenure group.

‘‘(C) Within a subgroup, the agency may select a qualified present or former employee without regard to the individual’s total creditable service.

‘‘(5) An individual is eligible for reemployment priority under this subsection for

2 years from the effective date of the reduction in force from which the individual

will be, or has been, separated under this section or section 3595, as the case may

be.

‘‘(6) An individual loses eligibility for reemployment priority under this subsection

when the individual—

‘‘(A) requests removal in writing;

‘‘(B) accepts or declines a bona fide offer under this subsection or fails to accept such an offer within the period of time allowed for such acceptance, or

‘‘(C) separates from the agency before being separated under this section or

section 3595, as the case may be.

A present or former employee who declines a position with a representative rate (or

equivalent) that is less than the rate of the position from which the individual was
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separated under this section retains eligibility for positions with a higher representative rate up to the rate of the individual’s last position.

‘‘(7) Whenever more than one individual is qualified for a position under this subsection, the agency shall select the most highly qualified individual, subject to paragraph (4).

‘‘(8) The Office of Personnel Management shall issue regulations to implement

this subsection.’’.

(b) APPLICABILITY.— (1) IN GENERAL.—Subject to paragraph (2), the amendments made by this section shall apply with respect to—

(A) reductions in force taking effect after the end of the 90-day period beginning on the date of the enactment of this Act; or

(B) in the case of the Department of Defense, reductions in force taking

effect after the end of the 1-year period beginning on the date of the enactment of this Act.

(2) ONGOING REDUCTIONS IN FORCE.—If an agency has given written notice of

a reduction in force to any of its employees within a competitive area, in accordance with section 3502(d)(1)(A) of title 5, United States Code, before the effective date under subparagraph (A) or (B) of paragraph (1), as applicable, then,

for purposes of determining the rights of any employee within such area in connection with such reduction in force, the amendments made by this section shall

be treated as if they had never been enacted. Nothing in the preceding sentence

shall affect any rights under a priority placement program under section 3502(j)

of title 5, United States Code, as amended by this section.

SEC. 4. IMPROVED REDRESS FOR VETERANS.

(a) IN GENERAL.—Subchapter I of chapter 33 of title 5, United States Code, is

amended by adding at the end the following:

‘‘§ 3330a. Administrative redress

‘‘(a)(1) Any preference eligible or other individual described in section 3304(f)(1)

who alleges that an agency has violated such individual’s rights under any statute

or regulation relating to veterans’ preference, or any right afforded such individual

by section 3304(f), may file a complaint with the Secretary of Labor.

‘‘(2) A complaint under this subsection must be filed within 60 days after the date

of the alleged violation, and the Secretary shall process such complaint in accordance with sections 4322 (a) through (e)(1) and 4326 of title 38.

‘‘(b)(1) If the Secretary of Labor is unable to resolve the complaint within 60 days

after the date on which it is filed, the complainant may elect to appeal the alleged

violation to the Merit Systems Protection Board in accordance with such procedures

as the Merit Systems Protection Board shall prescribe, except that in no event may

any such appeal be brought—

‘‘(A) before the 61st day after the date on which the complaint is filed under

subsection (a); or

‘‘(B) later than 15 days after the date on which the complainant receives notification from the Secretary of Labor under section 4322(e)(1) of title 38.

‘‘(2) An appeal under this subsection may not be brought unless—

‘‘(A) the complainant first provides written notification to the Secretary of

Labor of such complainant’s intention to bring such appeal; and

‘‘(B) appropriate evidence of compliance with subparagraph (A) is included (in

such form and manner as the Merit Systems Protection Board may prescribe)

with the notice of appeal under this subsection.

‘‘(3) Upon receiving notification under paragraph (2)(A), the Secretary of Labor

shall not continue to investigate or further attempt to resolve the complaint to

which such notification relates.

‘‘(c) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board from any action which is appealable to the Board under any other law, rule, or regulation, in lieu of administrative redress under this section.

‘‘§ 3330b. Judicial redress

‘‘(a) In lieu of continuing the administrative redress procedure provided under section 3330a(b), a preference eligible or other individual described in section 3304(f)(1)

may elect, in accordance with this section, to terminate those administrative proceedings and file an action with the appropriate United States district court not

later than 60 days after the date of the election.

‘‘(b) An election under this section may not be made—

‘‘(1) before the 121st day after the date on which the appeal is filed with the

Merit Systems Protection Board under section 3330a(b); or
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‘‘(2) after the Merit Systems Protection Board has issued a judicially

reviewable decision on the merits of the appeal.

‘‘(c) An election under this section shall be made, in writing, in such form and

manner as the Merit Systems Protection Board shall by regulation prescribe. The

election shall be effective as of the date on which it is received, and the administrative proceeding to which it relates shall terminate immediately upon the receipt of

such election.

‘‘§ 3330c. Remedy

‘‘(a) If the Merit Systems Protection Board (in a proceeding under section 3330a)

or a court (in a proceeding under section 3330b) determines that an agency has violated a right described in section 3330a, the Board or court (as the case may be)

shall order the agency to comply with such provisions and award compensation for

any loss of wages or benefits suffered by the individual by reason of the violation

involved. If the Board or court determines that such violation was willful, it shall

award an amount equal to backpay as liquidated damages.

‘‘(b) A preference eligible or other individual described in section 3304(f)(1) who

prevails in an action under section 3330a or 3330b shall be awarded reasonable attorney fees, expert witness fees, and other litigation expenses.’’.

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 33

of title 5, United States Code, is amended by adding after the item relating to section 3330 the following:

‘‘3330a. Administrative redress.

‘‘3330b. Judicial redress.

‘‘3330c. Remedy.’’.

SEC. 5. EXTENSION OF VETERANS’ PREFERENCE.

(a) AMENDMENT TO TITLE 5, UNITED STATES CODE.—Paragraph (3) of section 2108

of title 5, United States Code, is amended by striking ‘‘the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, or the

General Accounting Office;’’ and inserting ‘‘or the Federal Bureau of Investigation

and Drug Enforcement Administration Senior Executive Service;’’.

(b) AMENDMENTS TO TITLE 3, UNITED STATES CODE.—

(1) IN GENERAL.—Chapter 2 of title 3, United States Code, is amended by adding at the end the following:

‘‘§ 115. Veterans’ preference

‘‘(a) Subject to subsection (b), appointments under sections 105, 106, and 107 shall

be made in accordance with section 2108, and sections 3309 through 3312, of title

5.

‘‘(b) Subsection (a) shall not apply to any appointment to a position the rate of

basic pay for which is at least equal to the minimum rate established for positions

in the Senior Executive Service under section 5382 of title 5 and the duties of which

are comparable to those described in section 3132(a)(2) of such title or to any other

position if, with respect to such position, the President makes certification—

‘‘(1) that such position is—

‘‘(A) a confidential or policy-making position; or

‘‘(B) a position for which political affiliation or political philosophy is otherwise an important qualification; and

‘‘(2) that any individual selected for such position is expected to vacate the

position at or before the end of the President’s term (or terms) of office.

Each individual appointed to a position described in the preceding sentence as to

which the expectation described in paragraph (2) applies shall be notified as to such

expectation, in writing, at the time of appointment to such position.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter

2 of title 3, United States Code, is amended by adding at the end the following:

‘‘115. Veterans’ preference.’’.

(c) LEGISLATIVE BRANCH APPOINTMENTS.—

(1) DEFINITIONS.—For the purposes of this subsection, the terms ‘‘employing

office’’, ‘‘covered employee’’, and ‘‘Board’’ shall each have the meaning given such

term by section 101 of the Congressional Accountability Act of 1995 (2 U.S.C.

1301).

(2) RIGHTS AND PROTECTIONS.—The rights and protections established under

section 2108, sections 3309 through 3312, and subchapter I of chapter 35, of

title 5, United States Code, shall apply to covered employees.

(3) REMEDIES.—

(A) IN GENERAL.—The remedy for a violation of paragraph (2) shall be

such remedy as would be appropriate if awarded under applicable provi-
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sions of title 5, United States Code, in the case of a violation of the relevant

corresponding provision (referred to in paragraph (2)) of such title.

(B) PROCEDURE.—The procedure for consideration of alleged violations of

paragraph (2) shall be the same as apply under section 401 of the Congressional Accountability Act of 1995 (and the provisions of law referred to

therein) in the case of an alleged violation of part A of title II of such Act.

(4) REGULATIONS TO IMPLEMENT SUBSECTION.—

(A) IN GENERAL.—The Board shall, pursuant to section 304 of the Congressional Accountability Act of 1995 (2 U.S.C. 1384), issue regulations to

implement this subsection.

(B) AGENCY REGULATIONS.—The regulations issued under subparagraph

(A) shall be the same as the most relevant substantive regulations (applicable with respect to the executive branch) promulgated to implement the

statutory provisions referred to in paragraph (2) except insofar as the Board

may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the

implementation of the rights and protections under this subsection.

(C) COORDINATION.—The regulations issued under subparagraph (A) shall

be consistent with section 225 of the Congressional Accountability Act of

1995 (2 U.S.C. 1361).

(5) APPLICABILITY.—Notwithstanding any other provision of this subsection,

the term ‘‘covered employee’’ shall not, for purposes of this subsection, include

an employee—

(A) whose appointment is made by the President with the advice and consent of the Senate;

(B) whose appointment is made by a Member of Congress or by a committee or subcommittee of either House of Congress; or

(C) who is appointed to a position, the duties of which are equivalent to

those of a Senior Executive Service position (within the meaning of section

3132(a)(2) of title 5, United States Code).

(6) EFFECTIVE DATE.—Paragraphs (2) and (3) shall be effective as of the effective date of the regulations under paragraph (4).

(d) JUDICIAL BRANCH APPOINTMENTS.—

(1) IN GENERAL.—Subject to paragraphs (2) through (4), the Judicial Conference of the United States shall prescribe regulations to provide for—

(A) veterans’ preference in the consideration of applicants for employment, and in the conduct of any reductions in force, within the judicial

branch; and

(B) redress procedures for alleged violations of any rights provided for

under subparagraph (A).

(2) REGULATIONS TO BE BASED ON EXISTING PROVISIONS.—Under the regulations—

(A) a preference eligible (as defined by section 2108 of title 5, United

States Code) shall be afforded preferences similar to those under sections

3309 through 3312, and subchapter I of chapter 35, of such title 5; and

(B) the redress procedures provided for shall be similar to those under

the amendments made by section 4.

(3) EXCLUSIONS.—Nothing in the regulations shall apply with respect to—

(A) an appointment made by the President, with the advice and consent

of the Senate;

(B) an appointment as a judicial officer;

(C) an appointment as a law clerk or secretary to a justice or judge of

the United States; or

(D) an appointment to a position, the duties of which are equivalent to

those of a Senior Executive Service position (within the meaning of section

3132(a)(2) of title 5, United States Code).

(4) CONSULTATION.—The regulations under this subsection shall be prescribed

by the Judicial Conference of the United States, in consultation with—

(A) the largest congressionally chartered veterans’ service organization;

(B) 2 congressionally chartered veterans’ service organizations that represent former noncommissioned officers;

(C) a congressionally chartered veterans’ service organization that represents veterans who have fought in foreign wars;

(D) a congressionally chartered veterans’ service organization that represents veterans with service-connected disabilities;

(E) a congressionally chartered veterans’ service organization that represents veterans of the Vietnam era; and
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(F) a congressionally chartered veterans’ service organization that represents veterans of World War II, the Korean conflict, the Vietnam era, and

the Persian Gulf War.

(5) DEFINITIONS.—For purposes of this subsection—

(A) the term ‘‘judicial officer’’ means a justice, judge, or magistrate judge

listed in subparagraph (A), (B), (F), or (G) of section 376(a)(1) of title 28,

United States Code; and

(B) the term ‘‘justice or judge of the United States’’ has the meaning

given such term by section 451 of such title 28.

(6) SUBMISSION TO CONGRESS; EFFECTIVE DATE.— (A) SUBMISSION TO CONGRESS.—Within 5 months after the date of the enactment of this Act, the Judicial Conference of the United States shall submit a copy of the regulations prescribed under this subsection to the Committee on Government Reform and Oversight and the Committee on the Judiciary of the House of Representatives and the Committee on Governmental Affairs and the Committee on the Judiciary of the Senate.

(B) EFFECTIVE DATE.—The regulations prescribed under this subsection

shall take effect 6 months after the date of the enactment of this Act.

SEC. 6. VETERANS’ PREFERENCE REQUIRED FOR REDUCTIONS IN FORCE IN THE FEDERAL

AVIATION ADMINISTRATION.

Section 347(b) of the Department of Transportation and Related Agencies Appropriations Act, 1996 (109 Stat. 460) is amended by striking ‘‘and’’ at the end of paragraph (6), by striking the period at the end of paragraph (7) and inserting ‘‘; and’’,

and by adding at the end the following:

‘‘(8) sections 3501–3504, as such sections relate to veterans’ preference.’’.

SEC. 7. DEFINITIONAL AMENDMENT.

Subparagraph (A) of section 2108(1) of title 5, United States Code, is amended by

inserting ‘‘during a military operation in a qualified hazardous duty area (within the

meaning of the first 2 sentences of section 1(b) of Public Law 104–117) and in accordance with requirements that may be prescribed in regulations of the Secretary

of Defense,’’ after ‘‘for which a campaign badge has been authorized,’’.

SEC. 8. FAILURE TO COMPLY WITH VETERANS’ PREFERENCE REQUIREMENTS TO BE TREATED AS A PROHIBITED PERSONNEL PRACTICE FOR CERTAIN PURPOSES.

(a) IN GENERAL.—Subsection (b) of section 2302 of title 5, United States Code, is

amended—

(1) by striking ‘‘or’’ at the end of paragraph (10);

(2) by redesignating paragraph (11) as paragraph (12); and

(3) by inserting after paragraph (10) the following:

‘‘(11)(A) knowingly take, recommend, or approve any personnel action if the

taking of such action would violate a veterans’ preference requirement; or

‘‘(B) knowingly fail to take, recommend, or approve any personnel action if the

failure to take such action would violate a veterans’ preference requirement; or’’.

(b) DEFINITION; LIMITATION.—Section 2302 of title 5, United States Code, is

amended by adding at the end the following:

‘‘(e)(1) For the purpose of this section, the term ‘veterans’ preference requirement’

means any of the following provisions of law:

‘‘(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316,

3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and

(with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.

‘‘(B) Sections 943(c)(2) and 1784(c) of title 10.

‘‘(C) Section 1308(b) of the Alaska National Interest Lands Conservation Act.

‘‘(D) Section 301(c) of the Foreign Service Act of 1980.

‘‘(E) Sections 106(f), 7281(e), and 7802(5) of title 38.

‘‘(F) Section 1005(a) of title 39.

‘‘(G) Any other provision of law that the Director of the Office of Personnel

Management designates in regulations as being a veterans’ preference requirement for the purposes of this subsection.

‘‘(H) Any regulation prescribed under subsection (b) or (c) of section 1302 and

any other regulation that implements a provision of law referred to in any of

the preceding subparagraphs.

‘‘(2) Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect

any authority under section 1215 (relating to disciplinary action).’’.

(c) REPEALS.—
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(1) PROVISIONS OF TITLE 10, UNITED STATES CODE.—Section 1599c of title 10,

United States Code, and the item relating to such section in the table of sections at the beginning of chapter 81 of such title are repealed.

(2) SECTION 2302(a)(1) OF TITLE 5, UNITED STATES CODE.—Subsection (a)(1) of

section 2302 of title 5, United States Code, is amended to read as follows:

‘‘(a)(1) For the purpose of this title, ‘prohibited personnel practice’ means any action described in subsection (b).’’.

(d) SAVINGS PROVISION.—This section shall be treated as if it had never been enacted for purposes of any personnel action (within the meaning of section 2302 of

title 5, United States Code) preceding the date of the enactment of this Act.

SHORT SUMMARY OF LEGISLATION

H.R. 240, as amended, strengthens veterans’ preference and increases employment opportunities for veterans. It permits preference eligibles and certain other veterans to overcome artificial restrictions on the scope of competition for announced vacancies, establishes an effective redress system for veterans who believe their

rights have been violated, makes knowing violations of veterans’

preference laws a prohibited personnel practice, provides preference eligibles with increased protections during reductions in

force (RIF), requires agencies to establish priority placement programs for employees affected by a RIF and apply veterans’ preference when rehiring from the list, extends veterans’ preference to

certain positions at the White House and in the legislative and judicial branches of government, requires the Federal Aviation Administration to apply veterans’ preference in reductions in force,

and provides veterans’ preference eligibility for service in Bosnia,

Croatia, and the Former Yugoslav Republic of Macedonia.

I. BACKGROUND AND NEED FOR THE LEGISLATION

In general, veterans preference laws give certain veterans preference in appointment to civilian employment with the Federal

Government based upon their military service. Congress has long

recognized that this is an earned benefit, not a gift.

The statutory basis for today’s veterans preference is the Veterans’ Preference Act of 1944, as subsequently amended. Under that

Act, veterans are given ‘‘augmented scores’’ of 5 or 10 points, depending upon their status, in examinations for employment and retention preference in the event of a reduction in force. The Act also

prohibited adverse actions against veterans without ‘‘cause’’ and required certain due process protections, such as notice and an opportunity to be heard, as well as appeals.

The Subcommittee on the Civil Service has held two hearings related to this subject. The first hearing, which examined veterans’

preference in the Federal workplace, was held during the 104th

Congress on April 30, 1996. The second hearing was held on February 26, 1997 to examine H.R. 240.

Testimony at these hearings revealed that veterans’ preference

in the Federal workplace is often ignored or circumvented and that

its continued viability is threatened on several fronts.

Veterans’ employment in the Federal workforce is declining at a

rapid rate. Indeed, the government is approaching historically low

levels since the implementation of veterans’ preference. Although

27.5% of the government’s employees are veterans, as recently as

1984, veteran representation in the Federal work force was nearly
10

1 A ‘‘competitive level’’ consists of all positions in the ‘‘competitive area’’ that are essentially

interchangeable. Jobs are considered interchangeable if they are in the same grade level and

classification series and the individuals holding them could move from one position to another

‘‘without any loss of productivity beyond that normally expected in the orientation of any new

but fully qualified employee.’’ A ‘‘competitive area’’ is the organizational unit and geographic

area in which a RIF is conducted. 2GAO, Federal Hiring: Does Veterans’ Preference Need Updating?, (March 1992), at 27. 70.6%

of certificates headed by veterans were returned unused versus only 50.8% of those headed by

nonveterans. 3 ‘‘Preference eligibles’’ are veterans entitled to preference. The term is defined to mean disabled veterans, those who served in the military during wars, during specified periods of time,

or in a campaign or expedition for which a campaign badge has been authorized. In addition,

under certain circumstances, the spouses of disabled veterans, unmarried widows or widowers

of veterans, and the mothers of individuals killed while in the military or of individuals with

service-connected permanent and total disabilities are considered ‘‘preference eligibles.’’ Special

rules also apply to military retirees. 5 U.S.C. §§ 2108, 3501. 4GAO, Federal Hiring: Reconciling Managerial Flexibility With Veterans’ Preference, at 32

(June 1995).

38%. Veterans have borne a disproportionate brunt of the government’s downsizing. In part, this reflects the concentration of veterans in the very defense-related agencies that account for the vast

majority of the recent downsizing. The Office of Personnel Management’s (OPM) figures show that in September 1996, 65% of all veterans were employed in the three military departments and two

other agencies. (In comparison, these agencies accounted for only

54% of the overall Federal civilian workforce.) It may also reflect

the greater average age of veterans, who account for over 50% of

all retirements from Federal civil service in the last five years.

OPM’s data also show that the percentage of veterans in the

workforce of some agencies, such as the Department of Education

and the Department of Health and Human services, is far below

the governmentwide figure.

THREATS TO VETERANS PREFERENCE.

Many in the veterans community have cited a variety of strategies recently used by agencies that threaten veterans’ preference,

whether that is their intended effect or not. A prime example is increased usage of single position competitive levels 1 in RIFs. In addition, evidence suggests a deep-rooted resistance to veterans’ preference in the bureaucracy. A 1992 GAO study of veterans’ preference revealed that certificates (the list of candidates from which

agencies may hire) headed by a veteran entitled to preference were

returned unused at almost 1.4 times the return rate of certificates

headed by nonveterans.2 According to another GAO study, one

quarter of selecting officials who returned a certificate unused to

their personnel office in 1992 did so when they could not hire the

candidate they wanted because a preference-eligible 3 veteran was

ranked higher.4

The use of single-position competitive levels poses a threat to veterans’ preference because it effectively eliminates the preference

eligible’s ability to compete for retention at his or her grade level.

The case of John Davis, a decorated Vietnam veteran who testified

at the subcommittee’s April 30, 1996 hearing, provides an example.

Mr. Davis was placed in a single-position competitive level during

a RIF at the Army Corps of Engineers, and consequently released

from his position. Many in the veterans’ community believe the use

of this device undercut Mr. Davis’s veterans’ preference rights,
11

5Davis v. Department of the Army, DC–0351–93–0543–I–2, initial decision at 15 (MSPB February 4, 1994).

even though both the Merit Systems Protection Board and the U.S.

Court of Appeals for the Federal Circuit upheld the agency’s action.

On occasions the use of single-position competitive levels is appropriate because positions are so truly unique that employees cannot move between them without disrupting productivity. However

the potential for abuse is always present, and agencies can use

them to target individual employees and circumvent veterans’ preference. Unfortunately, use of this device has proliferated in recent

years. For example, in a RIF recently conducted by the U.S. Geological Survey 97.2% of 1,100 scientific or technical positions were

placed in unique competitive levels.

The Committee also believes it is necessary to provide eligible

veterans with stronger rights to move into other positions if they

are released from their own jobs during a RIF. Again, the John

Davis cases illustrates why such increased protection is necessary.

In that case, the evidence shows that before it conducted the RIF

the agency actually restructured some positions to allow other employees to qualify for them and escape the RIF.5

This legislation addresses these problems by making it more difficult for agencies to place preference eligibles in single-position

competitive levels. Under it, preference eligibles cannot be placed

in such a competitive level if by reason of their education, training,

or experience a reasonable person could conclude they would be

able successfully to perform another job at the same grade and in

the same competitive level within 150 days. In such cases, the preference eligible is to be placed in another competitive level for which

he or she qualifies. And if the preference eligible qualifies for more

than one competitive level, he or she is entitled to be placed in the

competitive level with the most positions. In addition, the legislation provides preference eligibles with enhanced assignment rights

to other positions and requires agencies to establish priority placement programs for preference eligibles who are separated or scheduled to be separated as a result of a RIF.

EQUAL ACCESS FOR VETERANS

Not all of those who have served in the military are entitled to

veterans preference, even though they are commonly thought of as

veterans. Only those who meet the statutory definition of ‘‘preference eligible’’ are entitled to veterans preference. Today, most become eligible for veterans’ preference by receiving a campaign

badge. Consequently, many who have served in the armed forces

do not have an advantage when competing for Federal jobs. Even

worse, however, because agencies frequently restrict competition

for positions to ‘‘status’’ candidates (primarily those who are already Federal civilian employees) or, more narrowly, to those in the

agency’s own workforce, these veterans are excluded from competition for many government jobs.

The Committee believes this is wrong. In his memorial day

speech at Arlington National Cemetery on May 27, 1996, President

Clinton observed, ‘‘As we honor the brave sacrifices in battle that

grace our nation’s history, let us also remember to honor those who
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served in times of peace, who preserve the peace, protect our interests and project our values. Though they are the best-trained, bestequipped military in the world, they, too, face their share of dangers.’’ Accordingly, the Committee believes that it is incumbent

upon the Federal Government to recognize the valuable Federal

service those veterans have performed.

In order to address this problem, the legislation provides that

preference eligibles and other veterans who have served honorably

for at least three years cannot be prevented from competing for

government jobs because they do not have ‘‘status’’ or are not employees of the hiring agency. This section of the bill (section 2) does

not confer a preference on anyone not otherwise entitled to one.

Agencies are also permitted to hire from a re-employment priority

list consisting solely of surplus and displaced employees without

outside competition.

This bill does not interfere with collectively bargained job bidding

and assignment procedures in the Postal Service. It is not the Committee’s intent to interfere with the reassignment or transfer rights

of postal employees. The Committee recognizes that such employees have the right to transfer to new locations, and that individuals

who suffer involuntary reassignment continue to be protected

under the respective collective-bargaining agreements. The Committee also recognizes that postal employees who suffer job-related

disabilities have the right to ‘‘limited duty’’ positions, and individuals who are injured off the job have the right to ‘‘light duty’’ positions. This bill is not intended to impair or diminish these rights.

LACK OF AN ADEQUATE REDRESS MECHANISM

Compounding the concerns of many veterans and veterans

groups is the lack of an adequate redress mechanism for veterans

whose rights are violated. There is a widespread consensus in the

veterans’ community that existing redress procedures do not provide real relief to affected veterans. Indeed, testimony at the subcommittee’s hearings identified this as the central defect in veterans’ preference today.

H.R. 240 corrects this problem by creating an effective, yet userfriendly redress system for veterans. Veterans who believe their

veterans’ preference rights or their right to compete for positions

under this Act have been violated may file a complaint with the

Secretary of Labor. The Secretary is to investigate and attempt to

resolve the complaint under procedures established in the Uniformed Services Employment and Reemployment Rights Act of

1994. The complainant may file an appeal with the Merit Systems

Protection Board if the Secretary is unable to resolve the complaint

or to do so within 60 days. The veteran is required to exhaust administrative remedies before the Board for a period of at least 120

days. However, after 120 days, but before the Board has issued a

judicially reviewable decision on the merits of the case, the veteran

may terminate the administrative proceeding and file a complaint

in an appropriate United States district court. Under this procedure, a veteran can escape the administrative process if it becomes

mired down, but cannot engage in forum shopping or obtain more

than ‘‘one bite at the apple.’’
13

In addition, under this bill knowing violations of veterans’ preference become a prohibited personnel practice for the purpose of

disciplinary actions. This authorizes the Special Counsel to file a

complaint against an employee who is alleged to have knowingly

violated veterans’ preference laws with the Merit Systems Protection Board. If the Merit Systems Protection Board sustains these

allegations, the employee is subject to penalties that include removal, suspension, or a $1,000 fine.

OTHER CONCERNS

Many positions at the White House and in the legislative and judicial branches of government are not covered by current veterans’

preference laws. The Committee believes this is wrong. The debt

our Nation owes to those who have fought its battles should be acknowledged by all branches of government. Accordingly, the legislation applies veterans’ preference to nonpolitical positions in the

White House and the legislative branch, as well as to many positions in the judicial branch.

Under the Department of Transportation and Related Agencies

Appropriations Act of 1996, the Federal Aviation Administration

was permitted to establish an alternative personnel system. Although that Act required the FAA to follow veterans’ preference in

hiring, it did not require it to do so in RIFs. This has been of great

concern to many veterans at the FAA, and the Committee believes

there is no reason to deprive those veterans of the preference in

RIFs they have earned. Accordingly, the legislation requires the

FAA to observe veterans’ preference in RIFs.

Finally, this legislation also extends veterans’ preference to those

who serve in Bosnia, Croatia, and the Former Yugoslav Republic

of Macedonia.

II. LEGISLATIVE HEARINGS AND COMMITTEE ACTIONS

H.R. 240 was introduced on January 7, 1997 by the Honorable

John L. Mica (R–FL), Chairman of the House Subcommittee on the

Civil Service. The bill was referred to the Committee on Government Reform and Oversight on January 7, 1997, and it was referred to the Subcommittee on the Civil Service on January 22,

1997. The subcommittee held a hearing and mark up on February

26, 1997. No amendments were offered, and the measure was ordered favorably reported to the full Committee by a voice vote. On

March 12, 1997, the Committee on Government Reform and Oversight met to consider the bill. Representative Mica offered an

amendment in the nature of a substitute, which was approved by

voice vote. The Committee favorably reported the bill, as amended,

to the full House by voice vote.

III. COMMITTEE HEARINGS AND WRITTEN TESTIMONY

On February 26, 1997, the Subcommittee on the Civil Service

held formal hearings on H.R. 240. Witnesses at that hearing were

the Honorable James B. King, Director of the Office of Personnel

Management; Emil Naschinski, Assistant Director, National Economics Commission, The American Legion; Sidney Daniels, Director, National Veterans Employment Assistance Service, Veterans of
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Foreign Wars of the United States; Charles L. Calkins, National

Executive Secretary, The Fleet Reserve Association; Larry D. Rhea,

Deputy Director of Legislative Affairs, Non Commissioned Officers

Association of the United States of America. In addition, a written

statement was submitted by Ronald W. Drach, National Employment Director, Disabled American Veterans.

Director King emphasized the Administration’s strong support

for the principle of veterans’ preference and agreed that

‘‘[s]trengthening employment opportunities for veterans is a worthy

goal.’’ He lauded the success of the Clinton Administration in hiring veterans during a time of government downsizing. Director

King also indicated that he had suggested to veterans’s service organizations an alternative to H.R. 240’s RIF provisions. That alternative would have allowed unlimited ‘‘bumping’’ and ‘‘retreating’’

rights for veterans only. However, he also indicated that he would

support any approach that the organizations believed would work

towards the goal of strengthening veterans’ preference in RIFs. Finally, Director King recommended that Congress allow OPM sufficient time to promulgate regulations implementing any changes in

RIF laws and to prevent against the disruption of RIFs that are

underway on the effective date of the legislation.

Mr. Naschinski testified that The American Legion supports H.R.

240, which he called ‘‘long overdue.’’ He emphasized the importance

of the bill’s redress mechanism to veterans in providing an ‘‘effective, efficient and user friendly’’ appeals system for veterans. The

American Legion, according to Mr. Naschinski, ‘‘firmly believes

that the major problem with veterans’ preference is that veterans

do not have an adequate redress system for instances of discrimination.’’ The American Legion also supports the bill because it

would protect veterans from such unfair personnel practices as single-person competitive levels during RIFs and would provide veterans with enhanced opportunities to find another job if RIFed. Mr.

Naschinski also took issue with the claim that veterans’ preference

is unfair to women and minorities, pointing out that it is completely neutral with regard to the veterans’ gender and ethnicity.

He also testified that the percentage of minorities serving in the

armed forces is double the percentage of minorities in the population. Finally, Mr. Naschinski emphasized that veterans are

among the more stable and productive members of society, being

familiar with leadership and having an excellent work record.

Mr. Daniels testified that the VFW strongly supports H.R. 240,

which is a priority item on the organization’s legislative agenda for

1997. In the view of the VFW, this legislation is especially important to veterans who may be facing job loss due to continuing

downsizing of the Federal Government. In particular, the VFW

supports the legislation’s curbs on the use of single-position competitive levels and enhanced assignment rights for preference eligibles, which will discourage the use of ‘‘designer RIFs’’ that threaten

veterans’ preference. Mr. Daniels also testified that the equal access provisions of the bill will greatly assist many highly qualified

veterans who are potential candidates for Federal employment to

apply and compete for Federal jobs. Allowing qualified veterans to

compete for jobs that are currently open only to insiders, he emphasized, will not only result in more women and minority veter-
15

ans obtaining employment, but also increase the pool of highly

qualified candidates and enhance the overall quality of the Federal

workforce. The VFW also fully supports the redress mechanism in

the legislation and making violations of veterans’ preference a prohibited personnel practice in all Federal agencies.

Mr. Calkins testified that the Fleet Reserve Association supports

this legislation because it reinforces the Nation’s commitment to its

veterans. He testified that while some Federal agencies support

veterans’ preference in principle, they circumvent it in practice and

answer to no one. He pointed out that an unsuccessful applicant

who suspects discrimination based on race, sex, or religion can appeal to the Equal Employment Opportunity Commission for a remedy, but a bypassed veteran now has no similar recourse. The Fleet

Reserve Association also supports making violations of veterans’

preference a prohibited personnel practice for disciplinary purposes

because it strengthens the enforcement of veterans’ preference

laws. Mr. Calkins also rebutted the argument that veterans’ preference is unfair to women and minorities by pointing out that more

women and minorities are now recruited for the armed services

and that women are no longer restricted to traditional roles outside

of the combat theater.

Mr. Rhea testified that enacting this legislation is a high priority

of the Non Commissioned Officers Association (NCOA). The NCOA

believes this bill will provide key ingredients that have been missing from veterans’ preference law for 50 years, an adequate and

fair enforcement mechanism and protection for veterans during

RIFs. Veterans’ preference, Mr. Rhea testified, has become an ‘‘ ‘unfilled earned right’ simply because veterans’ preference laws lack

an effective enforcement mechanism.’’ He also emphasized that veterans’ preference creates a preference based upon honorable military service for veterans of either sex.

In his written statement, Mr. Drach emphasized the support of

the Disabled American Veterans for the legislation’s equal access

provisions and redress mechanism. With respect to the equal access

provision, he pointed out that veterans were in fact Federal employees while in the military and made many personal sacrifices to

be a Federal employee. Accordingly, the legislation appropriately

prevents agencies from barring many veterans from competing for

civilian jobs simply because they are not currently civilian employees. He also argued that neither veterans nor veterans’ service organizations have ever had access to a meaningful redress system

and characterized the redress mechanism established in this bill as

an ‘‘extremely important provision.’’

During the previous Congress the subcommittee held a hearing

on April 30, 1996 to examine whether the employment preferences

accorded veterans by law are being faithfully applied by the Federal Government and ways in which opportunities can be improved.

The testimony from that hearing is described in House Report 104–

675.
16

IV. EXPLANATION OF THE BILL AS REPORTED: SECTION-BY-SECTION

ANALYSIS

SECTION 1. SHORT TITLE

The short title of this Act is ‘‘The Veterans’ Employment Opportunities Act of 1997.’’

SECTION 2. EQUAL ACCESS FOR VETERANS

Subsection (a) amends 5 U.S.C. § 3304 by adding a new subsection (f), which provides that a preference eligible or a veteran

who has been honorably discharged after three years’ service in the

armed forces may not be barred from competition for announced

vacancies in the competitive or excepted service because he or she

has not acquired competitive status or is not an employee of a particular agency. However, agencies are not prohibited from filling

vacant positions solely from a priority placement list consisting of

former employees who were separated from the agency due to a reduction in force and surplus employees.

Subsection (b) amends 5 U.S.C. § 3327 to require OPM to maintain and publicize to state employment services all vacancies for

which a veteran may apply under this section.

Subsection (c) amends 5 U.S.C. § 3330(b) to require OPM to

maintain a comprehensive governmentwide list of vacant positions

for which veterans may apply and to make clear that OPM may

contract for this function.

Subsection (d) makes clear that the provisions of this section do

not interfere with the filling of vacancies under collectively bargained job bidding and assignment procedures in the Postal Service. Such collectively bargained rights of postal employees as the

right to transfer to new locations, the right to be protected under

the respective collective-bargaining agreements in the event of an

involuntary reassignment, rights to ‘‘limited duty’’ or ‘‘light duty’’

positions, and promotions of part time flexible employees are not

impaired or diminished.

SECTION 3. SPECIAL PROTECTIONS FOR PREFERENCE ELIGIBLES IN

REDUCTIONS IN FORCE

Subsection (a). This subsection provides special protections for

preference eligible employees when their agency is conducting a

RIF. Because Congress recognizes that single-position competitive

levels pose a threat to veterans’ preference in RIFs, agencies are

prohibited from placing any position occupied by a preference eligible in such a competitive level if the preference eligible is qualified

(as defined in this Act) to perform the essential functions of any

other position at the same grade and in the same competitive area.

In such cases the preference eligible is entitled to be placed in another competitive level, and if the preference eligible is qualified for

more than one other competitive level, he or she is entitled to be

placed in the competitive level containing the most positions.

Preference eligibles are also provided enhanced assignment

rights. A preference eligible whose current or most recent performance rating is fully successful or better shall have assignment

rights to:
17

(1) any position for which he or she is qualified (as defined

in this Act) at the same grade level within the agency conducting the RIF that is in the commuting area and that is currently held by someone (other than another preference eligible)

who was placed in the position within six months before the

reduction in force if, within 12 months prior to such placement,

that person had been employed in the same competitive area

as the preference eligible;

(2) any position in the competitive area for which the preference eligible is qualified (as defined in this Act) and that is

then held by an individual, other than another preference eligible, who was placed in the position within 6 months before the

RIF; or

(3) any position in the competitive area that is not more than

3 grades or pay levels (5 grades or pay levels in the case of a

preference eligible with a service-connected disability of 30% or

more) below the position from which the preference eligible

was released. The special test for determining qualifications

defined in this Act does not apply in this situation.

These assignment rights are in addition to any assignment rights

positions prescribed by regulations issued by the Office of Personnel Management.

For the purposes of determining whether a position may be put

in a single-position competitive level or certain assignment rights

of a preference eligible, the preference eligible shall be considered

qualified for another position if by reason of experience, training,

or education a reasonable person could conclude that the preference

eligible would be able to perform the essential functions of the position successfully within a period of 150 days.

A preference eligible may challenge the classification of any position to which he asserts assignment rights in an action before the

Merit Systems Protection Board (MSPB).

Agencies are also required to establish agency wide priority

placement programs for employees who are scheduled to be separated or are actually separated by a RIF and whose current or

most recent performance rating was at least fully successful or the

equivalent. The agency may not fill any vacancy by appointment or

transfer of any person from outside or inside the agency (other

than surplus or displaced employees) if there is a qualified employee on the reemployment priority placement list. Veterans’’ preference must be applied in filling positions from the list. An individual may remain on the list for a maximum of 2 years, but may be

removed earlier under conditions specified in this section. These

conditions include the rejection of a bona fide offer of employment.

Subsection (b). The amendments made by this section apply to

RIFs taking effect more than 90 days (1 year in the case of the Department of Defense) after the date of enactment. To avoid disruption of ongoing RIFs, the amendments will not apply to reductions

in force for which the agency has issued specific written notices in

accordance with 5 U.S.C. § 3502(D)(1)(A) to employees in a competitive area before the effective dates specified in this subsection.
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SECTION 4. IMPROVED REDRESS FOR VETERANS

This section amends chapter 33 of title 5 by adding three new

sections (sections 3331–3333) to create a redress system that is

user-friendly, yet effective. This redress mechanism covers preference eligibles and, for violations of the right to compete created

in section 2 of this Act, individuals honorably discharged from the

armed forces after three years’’ service. Under this system, the individual first must file a complaint with the Secretary of Labor

within 60 days of the alleged violation. The Secretary will investigate and attempt to resolve the complaint in accordance with provisions of the Uniformed Services Employment and Reemployment

Rights Act of 1994, 38 U.S.C. §§ 4322(a)–(e)(1), 4326. The individual may file an appeal with the MSPB if the Secretary is unable

to resolve the complaint within 60 days or if the Secretary notifies

the individual that he is unable to resolve the complaint. An individual who elects to file an appeal with the MSPB must notify the

Secretary of this election, and the Secretary is to discontinue his

efforts to investigate or resolve the complaint.

An individual who files an appeal with the MSPB under this section must exhaust that remedy for at least 120 days. At any time

after that point, but before the MSPB issues a judicially reviewable

decision on the merits, the individual may terminate the administrative proceeding and file an action with the appropriate United

States district court.

An individual who prevails is entitled to ‘‘make-whole’’ relief and,

if the MSPB or district court determines that the agency’s violation

was willful, liquidated damages equal to the amount of back pay

awarded. The MSPB or district court shall award reasonable attorney’s fees and litigation expenses to an individual who prevails.

SECTION 5. EXTENSION OF VETERANS’ PREFERENCE

This section extends veterans’ preference to certain positions in

the judicial branch and to non-political jobs at the White House

and in the legislative branch.

Subsection (a) amends 5 U.S.C. §2108 to require the General Accounting Office to apply veterans’ preference in hiring. (GAO is already covered by veterans’ preference with respect to RIFs.)

Subsection (b) amends title 3 of the United States Code by adding a new section 115 to positions at the White House. Positions

that are equivalent to positions in the Senior Executive Service are

exempt, as are positions that the President certifies are confidential or policy-making positions or for which political affiliation or

political philosophy is otherwise an important qualification.

Subsection (c) extends veterans’ preference to positions in the

legislative branch. Positions for which the appointment is made by

the President with the advice and consent of the Senate, appointments by Members of Congress, and positions equivalent to Senior

Executive Service positions are exempt. The Board of Directors of

the Office of Compliance is required to establish a redress system

for the legislative branch that is substantially similar to the system

established under section 4 of this Act.

Subsection (d) applies veterans’ preference to positions in the judicial branch. It exempts positions for which the appointment is
19

made by the President with the advice and consent of the Senate,

judicial officers, appointments as law clerks or secretaries to judges

or Justices, and positions equivalent to Senior Executive Service

positions. The Judicial Conference, in consultation with certain veterans’ service organizations, is required to prescribe regulations

providing veterans with preferences in employment and RIFs similar to those in the executive branch and to establish a redress system for the judicial branch that is similar to the system established

under section 4 of this Act. These regulations are to be submitted

to appropriate congressional committees within 5 months of the

date of enactment of this Act and are to take effect one month

later.

SECTION 6. VETERANS’ PREFERENCE REQUIRED FOR RIFS IN THE FAA

This section amends section 347(b) of the Department of Transportation and Related Agencies Appropriations Act, 1996 (109 Stat.

460) to require the Federal Aviation Administration to apply veterans’ preference in reductions in force. Current law requires the

FAA to apply veterans’ preference in hiring.

SECTION 7. VETERANS’ PREFERENCE FOR SERVICE IN BOSNIA, CROATIA,

OR THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

This section provides veterans’ preference for service in Bosnia,

Croatia, and the Former Yugoslav Republic of Macedonia while

such areas are considered a ‘‘qualified hazardous duty area.’’

SECTION 8. VIOLATION OF VETERANS’ PREFERENCE A PROHIBITED

PERSONNEL PRACTICE FOR DISCIPLINARY ACTIONS

This section permits the Special Counsel to bring a disciplinary

action before the Merit Systems Protection Board under 5 U.S.C.

§1215 against any Federal employee who knowingly violates veterans’ preference laws.

V. COMPLIANCE WITH RULE XI

Pursuant to rule XI, clause 2(l)(3)(A) of the Rules of the House

of Representatives, under the authority of rule X, clause 2(b)(1) and

clause 3(f), the results and findings from committee oversight activities are incorporated in the bill and this report.

VI. BUDGET ANALYSIS AND PROJECTIONS

H.R. 240, as amended, provides for no new authorization, budget

authority, or tax expenditures. Consequently, the provisions of section 308(a)(1) of the Congressional Budget Act of 1974 are not applicable.
20

VII. COST ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, March 18, 1997.

Hon. DANIEL BURTON,

Chairman, Committee on Government Reform and Oversight, House

of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 240, the Veterans’ Employment Opportunities Act of 1997.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is John R. Righter.

Sincerely,

JUNE E. O’NEILL, Director.

Enclosure.

H.R. 240—Veterans’ Employment Opportunities Act of 1997

CBO estimates that enacting this bill would increase personnel

and management costs of the federal government, though we cannot estimate the amount of the added costs. For most agencies, any

increase in spending would be subject to the availability of appropriated funds. The bill could also increase direct spending by agencies not funded through annual appropriations. Therefore, pay-asyou-go procedures would apply to the bill. With the possible exception of costs for the U.S. Postal Service, the bill’s impact on direct

spending is not likely to be significant. Spending by the Postal

Service, however, is classified as off-budget and is not subject to

pay-as-you-go procedures.

H.R. 240 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act of 1995

and would not affect the budgets of state, local, or tribal governments.

H.R. 240 would strengthen and broaden the applicability of a set

of laws popularly known as veterans’ preference, which afford certain veterans preferential treatment in obtaining and keeping federal employment. For instance, the bill would strengthen the ability of veterans to seek redress for any alleged violations. The bill

also would provide a federal agency from excluding a veteran who

was honorably discharged after three years of service from competing for announced vacancies because that veteran does not already

work for the hiring agency or have competitive status. Finally, the

bill would extend veterans’ preference to certain positions in the judicial branch and to non-political positions at the White House and

in the legislative branch.

Several provisions of H.R. 240 would increase the costs to the

federal to administer and enforce the laws governing veterans’ preference. However, because we have no way of predicting the number

of veterans who would be affected by the bill’s provisions, particularly the number of veterans who might seek redress under the

bill’s expanded procedures, CBO cannot estimate the amount of

these additional costs. Areas of potential costs resulting from the

bill are described below.
21

The largest potential budgetary impact of the bill would result

from provisions that would allow veterans to appeal hiring and reduction-in-force decisions to, first, the Merit Systems Protection

Board (MSPB) and, then, to a district court, and that would increase the amount of redress that an eligible veteran could receive

for an affirmed violation. By expanding the number of veterans eligible to appeal hiring decisions, enacting H.R. 240 could significantly increase the workload—and hence, the expenses—of the Department of Labor, which would receive the initial complaints, as

well as the MSPB and the federal judiciary, which would handle

any subsequent appeals.

In cases where the complainant prevails, the bill would require

that the individual receive reasonable attorney fees, expert witness

fees, and other litigation expenses. Currently, successful complainants are awarded only attorney fees. In cases where a violation is

deemed as willful, H.R. 240 also would require the MSPB or district court to award damages in addition to any lost wages or benefits. The amount of damages would be limited to the amount of

back pay owed by the agency. Thus, H.R. 240 would likely result

in the appeal of more cases, particularly those related to grievances

over hiring decisions, and in the awarding of higher monetary judgments. CBO has no basis for estimating the number or cost of these

additional appeals.

Second, the bill would require agencies to ensure that eligible

veterans, as defined by the bill, are not excluded from competing

for announced vacancies because they do not already work for the

hiring agency or have competitive status. The provision would result in agencies adding to the Federal Job Opportunities List positions that otherwise would be filled by employees who work for the

agency or elsewhere in the federal government. Thus, the bill

would require agencies to transmit additional information to the

Office of Personnel Management and would force agencies to delay

hiring individuals for positions that they typically fill quickly. The

extra time needed to provide veterans with a reasonable opportunity to apply and to process and consider additional applicants

could lengthen the time positions remain vacant, and could impair

the ability of some agencies to administer their programs and operations. For some agencies, this delay could result in extra overtime

or contact costs; for others, the delay could reduce the amount

spent on salaries and expenses.

Finally, the bill would extend veterans’ preference to certain positions in the judicial branch and to non-political positions at the

White House and the legislative branch. For those agencies, such

as CBO, the Library of Congress, and the Capitol Police, that support the Congress, such an application would be difficult to implement. Because the employees of these agencies are not part of the

Civil Service and since the agencies do not administer a test or use

a numerical rating system that lends itself to factoring in the additional points required by law for preference-eligible veterans, it is

uncertain how these agencies would comply with the bill. If the extension of veterans’ preference resulted in the agencies instituting

a new system for judging and hiring applicants, the associated

costs could be significant. For the judicial branch, the bill would require that the Judicial Conference of the United States prescribe
22

regulations that are similar to those governing the executive

branch. The bill also would direct the Office of Compliance and the

Judicial Conference of the United States to establish procedures

similar to those available to executive branch employees. Thus, the

agencies could also face new, potentially costly litigation related to

grievances filed under this provision.

The CBO staff contact for this estimate is John R. Righter. The

estimate was approved by Robert A. Sunshine, Deputy Assistant

Director for Budget Analysis.

VIII. SPECIFIC CONSTITUTIONAL AUTHORITY FOR THIS LEGISLATION

Clauses 1, 12, and 18 of Article 1, section 8 of the Constitution

grant Congress the power to enact this law.

IX. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3 of rule XIII of the Rules of the House

of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted

is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman):

TITLE 5, UNITED STATES CODE

* * * * * * *

PART III—EMPLOYEES

* * * * * * *

Subpart A—General Provisions

* * * * * * *

CHAPTER 21—DEFINITIONS

* * * * * * *

§ 2108. Veteran; disabled veteran; preference eligible

For the purpose of this title—

(1) ‘‘veteran’’ means an individual who—

(A) served on active duty in the armed forces during a

war, in a campaign or expedition for which a campaign

badge has been authorized, during a military operation in

a qualified hazardous duty area (within the meaning of the

first 2 sentences of section 1(b) of Public Law 104–117) and

in accordance with requirements that may be prescribed in

regulations of the Secretary of Defense, during the period

beginning April 28, 1952, and ending July 1, 1955; or

* * * * * * *

(3) ‘‘preference eligible’’ means, except as provided in paragraph (4) of this section—

(A) * * *

* * * * * * *
23

but does not include applicants for, or members of, the Senior

Executive Service, the Defense Intelligence Senior Executive

Service, the Senior Cryptologic Executive Service, øthe Federal

Bureau of Investigation and Drug Enforcement Administration

Senior Executive Service, or the General Accounting Office;¿ or

the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;

* * * * * * *

CHAPTER 23—MERIT SYSTEM PRINCIPLES

* * * * * * *

§ 2302. Prohibited personnel practices

ø(a)(1) For purposes of this title, ‘‘prohibited personnel practice’’

means the following:

ø(A) Any action described in subsection (b) of this section.

ø(B) Any action or failure to act that is designated as a prohibited personnel action under section 1599c(a) of title 10.¿

(a)(1) For the purpose of this title, ‘‘prohibited personnel practice’’

means any action described in subsection (b).

* * * * * * *

(b) Any employee who has authority to take, direct others to

take, recommend, or approve any personnel action, shall not, with

respect to such authority—

(1) * * *

* * * * * * *

(10) discriminate for or against any employee or applicant for

employment on the basis of conduct which does not adversely

affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall

prohibit an agency from taking into account in determining

suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District

of Columbia, or of the United States; øor¿

(11)(A) knowingly take, recommend, or approve any personnel

action if the taking of such action would violate a veterans’

preference requirement; or

(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a

veterans’ preference requirement; or

ø(11)¿ (12) take or fail to take any other personnel action if

the taking of or failure to take such action violates any law,

rule, or regulation implementing, or directly concerning, the

merit system principles contained in section 2301 of this title.

This subsection shall not be construed to authorize the withholding

of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.

* * * * * * *

(e)(1) For the purpose of this section, the term ‘‘veterans preference

requirement’’ means any of the following provisions of law:
24

(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313,

3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501,

3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.

(B) Sections 943(c)(2) and 1784(c) of title 10.

(C) Section 1308(b) of the Alaska National Interest Lands

Conservation Act.

(D) Section 301(c) of the Foreign Service Act of 1980.

(E) Sections 106(f), 7281(e), and 7802(5) of title 38.

(F) Section 1005(a) of title 39.

(G) Any other provision of law that the Director of the Office

of Personnel Management designates in regulations as being a

veterans’ preference requirement for the purposes of this subsection.

(H) Any regulation prescribed under subsection (b) or (c) of

section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

(2) Notwithstanding any other provision of this title, no authority

to order corrective action shall be available in connection with a

prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority

under section 1215 (relating to disciplinary action).

* * * * * * *

Subpart B—Employment and Retention

* * * * * * *

CHAPTER 33—EXAMINATION, SELECTION, AND

PLACEMENT

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND

APPOINTMENT

3301. Civil service; generally.

3302. Competitive service; rules.

* * * * * * *

3330a. Administrative redress.

3330b. Judicial redress.

3330c. Remedy.

* * * * * * *

SUBCHAPTER I—EXAMINATION, CERTIFICATION, AND

APPOINTMENT

* * * * * * *

§ 3304. Competitive service; examinations

(a) * * *

* * * * * * *

(f)(1) No preference eligible, and no individual (other than a preference eligible) who has been separated from the armed forces under

honorable conditions after 3 or more years of active service, shall be
25

denied the opportunity to compete for an announced vacant position

within an agency, in the competitive service or the excepted service,

by reason of—

(A) not having acquired competitive status; or

(B) not being an employee of such agency.

(2) Nothing in this subsection shall prevent an agency from filling

a vacant position (whether by appointment or otherwise) solely from

individuals on a priority placement list consisting of individuals

who have been separated from the agency due to a reduction in force

and surplus employees (as defined under regulations prescribed by

the Office).

* * * * * * *

§ 3327. Civil service employment information

(a) * * *

(b) Subject to such regulations as the Office may issue, each

agency shall promptly notify the Office and the employment offices

of the United States Employment Service of—

(1) each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which

the agency seeks applications from persons outside the Federal

service, øand¿

(2) each vacant position in the agency for which competition

is restricted to individuals having competitive status or employees of such agency, excluding any position under paragraph (1),

and

ø(2)¿ (3) the period during which applications will be accepted.

As used in this subsection, ‘‘agency’’ means an agency as defined

in section 5102(a)(1) of this title other than an agency all the positions in which are excepted by statute from the competitive service.

(c) Any notification provided under this section shall, for all positions under subsection (b)(1) as to which section 3304(f) applies and

for all positions under subsection (b)(2), include a notation as to the

applicability of section 3304(f) with respect thereto.

(d) In consultation with the Secretary of Labor, the Office shall

submit to Congress and the President, no less frequently than every

2 years, a report detailing, with respect to the period covered by

such report—

(1) the number of positions listed under this section during

such period;

(2) the number of preference eligibles and other individuals

described in section 3304(f)(1) referred to such positions during

such period; and

(3) the number of preference eligibles and other individuals

described in section 3304(f)(1) appointed to such positions during such period.

* * * * * * *

§ 3330. Government-wide list of vacant positions

(a) * * *

ø(b) The Office of Personnel Management shall establish and

keep current a comprehensive list of all announcements of vacant
26

positions in the competitive service within each agency that are to

be filled by appointment for more than one year and for which applications are being (or will soon be) accepted from outside the

agency’s work force.¿

(b) The Office of Personnel Management shall cause to be established and kept current—

(1) a comprehensive list of all announcements of vacant positions (in the competitive service and the excepted service, respectively) within each agency that are to be filled by appointment

for more than 1 year and for which applications are being or

will soon be accepted from outside the agency’s work force; and

(2) a comprehensive list of all announcements of vacant positions within each agency for which applications are being or

will soon be accepted and for which competition is restricted to

individuals having competitive status or employees of such

agency, excluding any position required to be listed under paragraph (1).

(c) Included for any position listed shall be—

(1) * * *

(2) application procedures, including the period within which

applications may be submitted and procedures for obtaining

additional information; øand¿

(3) for all positions under subsection (b)(1) as to which section 3304(f) applies and for all positions under subsection

(b)(2), a notation as to the applicability of section 3304(f) with

respect thereto; and

ø(3)¿ (4) any other information which the Office considers

appropriate.

(d) øThe list¿ Each list under subsection (b) shall be available to

members of the public.

* * * * * * *

§ 3330a. Administrative redress

(a)(1) Any preference eligible or other individual described in section 3304(f)(1) who alleges that an agency has violated such individual’s rights under any statute or regulation relating to veterans’

preference, or any right afforded such individual by section 3304(f),

may file a complaint with the Secretary of Labor.

(2) A complaint under this subsection must be filed within 60

days after the date of the alleged violation, and the Secretary shall

process such complaint in accordance with sections 4322 (a) through

(e)(1) and 4326 of title 38.

(b)(1) If the Secretary of Labor is unable to resolve the complaint

within 60 days after the date on which it is filed, the complainant

may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may

any such appeal be brought—

(A) before the 61st day after the date on which the complaint

is filed under subsection (a); or

(B) later than 15 days after the date on which the complainant receives notification from the Secretary of Labor under section 4322(e)(1) of title 38.
27

(2) An appeal under this subsection may not be brought unless—

(A) the complainant first provides written notification to the

Secretary of Labor of such complainant’s intention to bring

such appeal; and

(B) appropriate evidence of compliance with subparagraph

(A) is included (in such form and manner as the Merit Systems

Protection Board may prescribe) with the notice of appeal under

this subsection.

(3) Upon receiving notification under paragraph (2)(A), the Secretary of Labor shall not continue to investigate or further attempt

to resolve the complaint to which such notification relates.

(c) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board

from any action which is appealable to the Board under any other

law, rule, or regulation, in lieu of administrative redress under this

section.

§ 3330b. Judicial redress

(a) In lieu of continuing the administrative redress procedure provided under section 3330a(b), a preference eligible or other individual described in section 3304(f)(1) may elect, in accordance with this

section, to terminate those administrative proceedings and file an

action with the appropriate United States district court not later

than 60 days after the date of the election.

(b) An election under this section may not be made—

(1) before the 121st day after the date on which the appeal

is filed with the Merit Systems Protection Board under section

3330a(b); or

(2) after the Merit Systems Protection Board has issued a judicially reviewable decision on the merits of the appeal.

(c) An election under this section shall be made, in writing, in

such form and manner as the Merit Systems Protection Board shall

by regulation prescribe. The election shall be effective as of the date

on which it is received, and the administrative proceeding to which

it relates shall terminate immediately upon the receipt of such election.

§ 3330c. Remedy

(a) If the Merit Systems Protection Board (in a proceeding under

section 3330a) or a court (in a proceeding under section 3330b) determines that an agency has violated a right described in section

3330a, the Board or court (as the case may be) shall order the agency to comply with such provisions and award compensation for any

loss of wages or benefits suffered by the individual by reason of the

violation involved. If the Board or court determines that such violation was willful, it shall award an amount equal to backpay as liquidated damages.

(b) A preference eligible or other individual described in section

3304(f)(1) who prevails in an action under section 3330a or 3330b

shall be awarded reasonable attorney fees, expert witness fees, and

other litigation expenses.

* * * * * * *
28

CHAPTER 35—RETENTION PREFERENCE,

RESTORATION, AND REEMPLOYMENT

* * * * * * *

SUBCHAPTER I—RETENTION PREFERENCE

* * * * * * *

§ 3502. Order of retention

(a) * * *

* * * * * * *

(g)(1) A position occupied by a preference eligible shall not be

placed in a single-position competitive level if the preference eligible

is qualified to perform the essential functions of any other position

at the same grade (or occupational level) in the competitive area. In

such cases, the preference eligible shall be entitled to be placed in

another competitive level for which such preference eligible is qualified. If the preference eligible is qualified for more than one competitive level, such preference eligible shall be placed in the competitive

level containing the most positions.

(2) For purposes of paragraph (1)—

(A) a preference eligible shall be considered qualified to perform the essential functions of a position if, by reason of experience, training, or education (and, in the case of a disabled veteran, with reasonable accommodation), a reasonable person

could conclude that the preference eligible would be able to perform those functions successfully within a period of 150 days;

and

(B) a preference eligible shall not be considered unqualified

solely because such preference eligible does not meet the minimum qualification requirements relating to previous experience

in a specified grade (or occupational level), if any, that are established for such position by the Office of Personnel Management or the agency.

(h) In connection with any reduction in force, a preference eligible

whose current or most recent performance rating is at least fully

successful (or the equivalent) shall have, in addition to such assignment rights as are prescribed by regulation, the right, in lieu of separation, to be assigned to any position within the agency conducting

the reduction in force—

(1) for which such preference eligible is qualified under subsection (g)(2)—

(A) that is within the preference eligible’s commuting

area and at the same grade (or occupational level) as the

position from which the preference eligible was released,

and that is then occupied by an individual, other than another preference eligible, who was placed in such position

(whether by appointment or otherwise) within 6 months before the reduction in force if, within 12 months prior to the

date on which such individual was so placed in such position, such individual had been employed in the same competitive area as the preference eligible; or

(B) that is within the preference eligible’s competitive

area and that is then occupied by an individual, other than
29

another preference eligible, who was placed in such position

(whether by appointment or otherwise) within 6 months before the reduction in force; or

(2) for which such preference eligible is qualified that is within the preference eligible’s competitive area and that is not more

than 3 grades (or pay levels) below that of the position from

which the preference eligible was released, except that, in the

case of a preference eligible with a compensable service-connected disability of 30 percent or more, this paragraph shall be

applied by substituting ‘‘5 grades’’ for ‘‘3 grades’’.

In the event that a preference eligible is entitled to assignment to

more than 1 position under this subsection, the agency shall assign

the preference eligible to any such position requiring no reduction

(or, if there is no such position, the least reduction) in basic pay.

A position shall not, with respect to a preference eligible, be considered to satisfy the requirements of paragraph (1) or (2), as applicable, if it does not last for at least 12 months following the date on

which such preference eligible is assigned to such position under

this subsection.

(i) A preference eligible may challenge the classification of any position to which the preference eligible asserts assignment rights (as

provided by, or prescribed by regulations described in, subsection

(h)) in an action before the Merit Systems Protection Board.

(j)(1) Not later than 90 days after the date of the enactment of the

Veterans Employment Opportunities Act of 1997, each Executive

agency shall establish an agencywide priority placement program to

facilitate employment placement for employees who—

(A)(i) are scheduled to be separated from service due to a reduction in force under—

(I) regulations prescribed under this section; or

(II) procedures established under section 3595; or

(ii) are separated from service due to such a reduction in

force; and

(B)(i) have received a rating of at least fully successful (or the

equivalent) as the last performance rating of record used for retention purposes; or

(ii) occupy positions excluded from a performance appraisal

system by law, regulation, or administrative action taken by the

Office of Personnel Management.

(2)(A) Each agencywide priority placement program under this

subsection shall include provisions under which a vacant position

shall not (except as provided in this paragraph or any other statute

providing the right of reemployment to any individual) be filled by

the appointment or transfer of any individual from outside of that

agency (other than an individual described in subparagraph (B))

if—

(i) there is then available any individual described in subparagraph (B) who is qualified for the position; and

(ii) the position—

(I) is at the same grade or pay level (or the equivalent)

or not more than 3 grades (or grade intervals) below that

of the position last held by such individual before placement in the new position;
30

(II) is within the same commuting area as the individual’s last-held position (as referred to in subclause (I)) or

residence; and

(III) has the same type of work schedule (whether fulltime, part-time, or intermittent) as the position last held by

the individual.

(B) For purposes of an agencywide priority placement program,

an individual shall be considered to be described in this subparagraph if such individual—

(i)(I) is an employee of such agency who is scheduled to be

separated, as described in paragraph (1)(A)(i); or

(II) is an individual who became a former employee of such

agency as a result of a separation, as described in paragraph

(1)(A)(ii), excluding any individual who separated voluntarily

under subsection (f); and

(ii) satisfies clause (i) or (ii) of paragraph (1)(B).

(3)(A) If after a reduction in force the agency has no positions of

any type within the local commuting areas specified in this subsection, the individual may designate a different local commuting

area where the agency has continuing positions in order to exercise

reemployment rights under this subsection. An agency may determine that such designations are not in the interest of the Government for the purpose of paying relocation expenses under subchapter

II of chapter 57.

(B) At its option, an agency may administratively extend reemployment rights under this subsection to include other local commuting areas.

(4)(A) In selecting employees for positions under this subsection,

the agency shall place qualified present and former employees in retention order by veterans’ preference subgroup and tenure group.

(B) An agency may not pass over a qualified present or former

employee to select an individual in a lower veterans’ preference subgroup within the tenure group, or in a lower tenure group.

(C) Within a subgroup, the agency may select a qualified present

or former employee without regard to the individual’s total creditable service.

(5) An individual is eligible for reemployment priority under this

subsection for 2 years from the effective date of the reduction in

force from which the individual will be, or has been, separated

under this section or section 3595, as the case may be.

(6) An individual loses eligibility for reemployment priority under

this subsection when the individual—

(A) requests removal in writing;

(B) accepts or declines a bona fide offer under this subsection

or fails to accept such an offer within the period of time allowed

for such acceptance, or

(C) separates from the agency before being separated under

this section or section 3595, as the case may be.

A present or former employee who declines a position with a representative rate (or equivalent) that is less than the rate of the position from which the individual was separated under this section retains eligibility for positions with a higher representative rate up to

the rate of the individual’s last position.
31

(7) Whenever more than one individual is qualified for a position

under this subsection, the agency shall select the most highly qualified individual, subject to paragraph (4).

(8) The Office of Personnel Management shall issue regulations to

implement this subsection.

SECTION 1005 OF TITLE 39, UNITED STATES CODE

§ 1005. Applicability of laws relating to Federal employees

(a)(1)***

(2) The provisions of title 5 relating to a preference eligible (as

that term is defined under section 2108(3) of such title) shall apply

to an applicant for appointment and any officer or employee of the

Postal Service in the same manner and under the same conditions

as if the applicant, officer, or employee were subject to the competitive service under such øtitle.¿ title, subject to paragraph (5) of this

subsection. The provisions of this paragraph shall not be modified

by any program developed under section 1004 of this title or any

collective-bargaining agreement entered into under chapter 12 of

this title.

* * * * * * *

(5)(A) The provisions of section 3304(f) of title 5 shall apply with

respect to the Postal Service in the same manner and under the

same conditions as if the Postal Service were an agency within the

meaning of such provisions.

(B) Nothing in this subsection shall be considered to require the

application of section 3304(f) of title 5 in the case of any individual

who is not an employee of the Postal Service if—

(i) the vacant position involved is to be filled pursuant to a

collective-bargaining agreement;

(ii) the collective-bargaining agreement restricts competition

for such position to individuals employed in a bargaining unit

or installation within the Postal Service in which the position

is located;

(iii) the collective-bargaining agreement provides that the successful applicant shall be selected on the basis of seniority or

qualifications; and

(iv) the position to be filled is within a bargaining unit.

(C) The provisions of this paragraph shall not be modified by any

program developed under section 1004 of this title or any collectivebargaining agreement entered into under chapter 12 of this title.

* * * * * * *

TITLE 3, UNITED STATES CODE

* * * * * * *

CHAPTER 2—OFFICE AND COMPENSATION OF

PRESIDENT

Sec.

101. Commencement of term of office.

* * * * * * *
32

115. Veterans’ preference.

* * * * * * *

§ 115. Veterans’ preference

(a) Subject to subsection (b), appointments under sections 105,

106, and 107 shall be made in accordance with section 2108, and

sections 3309 through 3312, of title 5.

(b) Subsection (a) shall not apply to any appointment to a position

the rate of basic pay for which is at least equal to the minimum rate

established for positions in the Senior Executive Service under section 5382 of title 5 and the duties of which are comparable to those

described in section 3132(a)(2) of such title or to any other position

if, with respect to such position, the President makes certification—

(1) that such position is—

(A) a confidential or policy-making position; or

(B) a position for which political affiliation or political

philosophy is otherwise an important qualification; and

(2) that any individual selected for such position is expected

to vacate the position at or before the end of the President’s term

(or terms) of office.

Each individual appointed to a position described in the preceding

sentence as to which the expectation described in paragraph (2) applies shall be notified as to such expectation, in writing, at the time

of appointment to such position.

* * * * * * *

SECTION 347 OF THE DEPARTMENT OF TRANSPORTATION AND RELATED AGENCIES APPROPRIATIONS

ACT, 1996

SEC. 347. (a)***

(b) The provisions of title 5, United States Code, shall not apply

to the new personnel management system developed and implemented pursuant to subsection (a), with the exception of—

(1) * * *

* * * * * * *

(6) chapter 81, relating to compensation for work injury;

øand¿

(7) chapters 83–85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverageø.¿; and

(8) sections 3501–3504, as such sections relate to veterans’

preference.

* * * * * * *

TITLE 10, UNITED STATES CODE

* * * * * * *

Subtitle A—General Military Law

* * * * * * *
33

PART II—PERSONNEL

* * * * * * *

CHAPTER 81—CIVILIAN EMPLOYEES

Sec.

1581. Foreign National Employees Separation Pay Account.

* * * * * * *

ø1599c. Veterans’ preference requirements: Department of Defense failure to comply treated as a prohibited personnel practice.¿

* * * * * * *

ø§ 1599c. Veterans’ preference requirements: Department of

Defense failure to comply treated as a prohibited

personnel practice

ø(a) PROHIBITED PERSONNEL PRACTICE.—It is a prohibited personnel practice for a person referred to in subsection (b) who has

authority described in that subsection—

ø(1) knowingly to take, recommend, or approve any personnel action with respect to such authority if the taking of such

action violates a veterans’ preference; or

ø(2) knowingly to fail to take, recommend, or approve any

personnel action with respect to such authority, if the failure

to take such action violates a veterans’ preference.

ø(b) PERSONS COVERED.—Subsection (a) applies with

respect to—

ø(1) an officer or employee of the Department of Defense who

has authority to take, direct others to take, recommend, or approve a personnel action with respect to an employee of the Department of Defense; and

ø(2) a member of the armed forces who has such authority.

ø(c) VETERANS’ PREFERENCE DEFINED.—(1) In this section, the

term ‘‘veterans’ preference’’ means any of the following provisions

of law:

ø(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313,

3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501,

3502(b), 3504, and 4303(e) of title 5 and (with respect to a preference eligible referred to in section 7511(a)(1)(B) of such title)

subchapter II of chapter 75 and section 7701 of such title.

ø(B) Sections 943(c)(2) and 1784(c) of this title.

ø(C) Section 1308(b) of the Alaska National Interest Lands

Conservation Act (16 U.S.C. 3198(b)).

ø(D) Section 301(c) of the Foreign Service Act of 1980 (22

U.S.C. 3941(c)).

ø(E) Section 3(a)(11) of the Administrative Office of the United States Courts Personnel Act of 1990 (28 U.S.C. 602 note).

ø(F) Sections 106(f), 7281(e), and 7802(5) of title 38.

ø(G) Section 1005(a) of title 39.

ø(H) Any other provision of law that the Director of the Office of Personnel Management designates in regulations as

being a veterans’ preference for the purposes of this section.

ø(2) For the purposes of this section, such term includes any regulation prescribed under subsection (b) or (c) of section 1302 of title
34

5 and any other regulation that implements a provision of law referred to in paragraph (1).

ø(d) PERSONNEL ACTION DEFINED.—In this section, the term

‘‘personnel action’’ has the meaning given that term in section 2302

of title 5.¿

* * * * * * *

X. COMMITTEE RECOMMENDATION

On March 12, 1997, a quorum being present, the Committee on

Government Reform and Oversight ordered the bill, as amended,

favorably reported.

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT—105TH

CONGRESS ROLLCALL

Date: March 12, 1997.

Final Passage of H.R. 240, as amended.

Offered by: Hon. Dan Burton (IN).

Voice Vote: Yea.

XI. CONGRESSIONAL ACCOUNTABILITY ACT; PUBLIC LAW 104–1;

SECTION 102(B)(3)

H.R. 240, as amended by the committee, requires the legislative

branch to apply veterans’ preference in hiring and reductions in

force.

Æ