June 23, 1978

78-35 MEMORANDUM OPINION FOR THE GENERAL

COUNSEL, CIVIL SERVICE COMMISSION

Veterans Preference Act (5 U.S.C. §§ 2108,

3309-3320)— Dependents—Preference—Foreign

Installations

This responds to your predecessor’s request for our opinion as to the legality 

of certain Department of Defense (DOD) hiring practices in foreign-area 

installations.

Our understanding of the relevant facts is as follows: In 1972, the Civil 

Service Commission promulgated 5 CFR § 213.3106(b)(6). This excepted jobs 

in DOD foreign-area installations from the competitive service when filled by 

dependents of DOD personnel. It was issued under the Commission’s general 

authority to except positions from the competitive service “ when it determines 

that appointments thereto through competitive examinations are not practicable.” 5 CFR § 6.1.

In these foreign-area installations DOD extends a preference in hiring to 

dependents of DOD personnel over other applicants. Some are hired in regular 

DOD civilian positions. Others, however, are hired pursuant to an arrangement 

between the Federal Republic of Germany and the United States. This 

arrangement is based upon a North Atlantic Treaty Organization Status of 

Forces Agreement (NATO SOFA—4 UST 1792, Art. IX, Par. 4), which 

provides that U.S. forces operating in other NATO countries may hire from the 

local civilian population in accordance with the laws of the receiving country,

i.e., the country in which the U.S. forces are present. Persons so hired are 

called “ local nationals.” Germany claims that certain treaty agreements entitle 

German local nationals to fill a specified number of these positions. However, 

all of these positions designated for local nationals are not so filled. Germany 

has permitted some local national positions to be filled by dependents in 

deference to the needs of DOD personnel and their families. Unless dependents 

(primarily wives of DOD personnel) are provided jobs to supplement the 

earnings of the family unit, DOD personnel could in many cases not afford to 

have their families accompany them abroad. In this regard, the State Department states “ that as a matter of practice and not of written agreement the

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Federal Republic of Germany willingly acquiesces in the United States forces 

in Germany employing its dependents for jobs designated, under NATO SOFA, 

for foreign national occupancy.” DOD contends that attempts to fill these local 

national positions with persons other than dependents may result in the 

withdrawal of these positions from U.S. control.

Furthermore, we have been advised that the number of local national 

positions filled by dependents is approximately 5,659. Of these, about 5,449 

are in Germany. As for dependents in regular DOD positions, they number 

approximately 5,680. Of these, about 4,051 are in Germany. The regular DOD 

positions can be filled with persons other than dependents with no danger of 

reversion to local nationals because these positions are not subject to foreign 

control.

As we understand it, a number of U.S. veterans residing in these foreign 

areas, particularly Germany, have complained that the dependent-preference 

hiring arrangement fails to take the Veterans Preference Act, 5 U.S.C. 

§§ 2108, 3309-3320, into account. Under that Act “ preference eligibles” 1 

are entitled to have 5 or 10 points2 added to their employment-evaluation 

rating.

In this factual setting, the basic inquiry is whether DOD’s practice of hiring 

dependents in foreign-area installations violates the Veterans Preference Act.3 

Specifically, three questions are presented. The principal question is whether, 

in light of 5 U.S.C. § 3320, the Civil Service Commission had authority to 

promulgate 5 CFR § 213.3106(b)(6). Secondly, what effect, if any, does § 106 

of Public Law 92-129, 85 Stat. 355, have on the Veterans Preference Act? 

Finally, do NATO SOFA and working arrangements under that agreement 

supersede the Veterans Preference Act? For the reasons that follow, we 

conclude that the Veterans Preference Act is applicable to these positions; we 

are of the opinion, however, that the Commission may properly excuse 

application of that Act to the local national positions filled by dependents 

should it find that such application would not benefit preference eligibles.

We now turn to the question whether § 106 of Public Law 92-129 supports 

the extension of an employment preference to dependents in our overseas 

installations. As stated above, in 1972 the Commission excepted positions in 

foreign area installations from the competitive service so long as they were

'The term “ preference eligible,” as defined in 5 U .S.C . § 2108(3), includes veterans who have 

served on active duty in the Armed Forces under certain conditions that need not be listed here. And 

in some cases the spouses and mothers of these veterans are also preference eligibles.

2While most preference eligibles are entitled to a 5-point preference, others receive a 10-point 

preference. This latter group consists primarily o f veterans with service-connected disabilities, and 

in some cases their spouses and mothers. Also, certain surviving spouses and mothers of 

individuals who lost their lives in military service to this country qualify for the 10-point 

preference. See 5 U .S.C . §§ 2108(3)(c)-(g), 3309.

3Although DOD admits that dependents are given preference over nondependents, it states that 

within the framework of its dependent hiring policy, dependents who are also veterans are given 

preference as against veterans who are not dependents. But DOD does not, and indeed could not, 

reasonably, contend that this procedure comports with the requirements of the Veterans Preference 

Act. Rather, it contends that § 106 o f Public Law 92-129, discussed infra, renders the Veterans 

Preference Act inoperative in these overseas appointments that involve dependents.

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filled by dependents of DOD personnel stationed in the area. This exception 

was granted, in large part, on the assumption that § 106 of Public Law 92-129 

was intended to create a dependent’s preference in foreign countries. We do not 

believe that Congress intended such a preference. That section reads, in 

pertinent part, as follows:

Unless prohibited by treaty no person shall be discriminated against 

by the Department of Defense . . . in the employment of civilian 

personnel at any facility or installation operated by the Department of 

Defense in any foreign country because such person is a citizen of the 

United States or is a dependent of a member of the Armed Forces of 

the United States ....

The purpose of § 106 is explained in its legislative history. The conference 

report states:

The Senate version contained a provision prohibiting job discrimination against American citizens and their dependents in hiring on 

United States military bases in any foreign country.

The House bill contained no such provision. The purpose of the 

Senate provision is to correct a situation which exists at some foreign 

bases, primarily in Europe, where discrimination in favor of local 

nationals and against American dependents in employment has 

contributed to conditions of hardships for families of American 

enlisted men whose dependents are effectively prevented from 

obtaining employment. [H. Rept. No. 92-433, 92d Cong., 1st sess.

31 (1971)]

The Senate report states:

The purpose of this amendment is to correct a situation which 

exists primarily on some American bases in Europe. In some cases, 

discrimination in favor of local nationals and against American 

dependents in employment has helped create conditions of poverty 

for families of American enlisted men. [S. Rept. No. 92-93, 92d 

Cong., 1st sess. 23 (1971)]

Finally, the Senate hearing with respect to § 106 also addresses the problem. 

Senator Schweiker commented on some problems facing U.S. military personnel stationed in Germany who have financial difficulty in bringing their wives 

to live with them. In a colloquy with then-Secretary of Defense Laird, Senator 

Schweiker stated:

One other inequity . . . is that the wife who does get over there mainly 

on a loan that the GI floats, and then rents whatever quarters is 

available, which isn’t very much for that money, is then in a position 

where she can’t take a job because under the Status of Forces Treaty 

obligations we are not permitted to let our nationals work at certain 

kinds of positions .... [W]e have our GI with a wife that he is trying 

to support on a poverty level, and we don’t even let her work under 

the Status of Forces Agreement .... [I]t makes my blood boil a little 

bit when I see the way we are being treated by some of our allies over

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there when they deny employment to the wives of Gls who just want 

the right to be with their husbands, something that every other citizen 

in Europe has at that time. I would appreciate if you would consider 

looking into amending that Status of Forces Agreement so that our 

G ls’ wives are not discriminated against.4 [Selective Service and 

Military Compensation: Hearings on S. 392, S. 427, S. 483, S.J.

Res. 20, S. 494, S. 495, and S. 496 before the Senate Committee on 

Armed Services, 92d Cong., 1st sess. 46-47 (1971)]

We are of the opinion that § 106 was not intended to create a preference for 

dependents over other American citizens in DOD foreign-area ‘installation 

hiring. Its plain language prohibits discrimination against U.S. citizens and 

Armed Forces dependents. It, thus, evinces an intent to extend protection 

against discrimination to all U.S. citizens and Armed Forces dependents. The 

language permits no reasonable inference that any subgroup of the protected 

class was to enjoy benefits over any other subgroup. And the above quoted 

excerpts from § 106’s legislative history clearly show that the statute was 

designed to protect U.S. citizens and dependents against discrimination in favor 

of local nationals. Thus, neither the language nor the legislative history of the 

section reveals a congressional intent to establish hiring preferences among U.S. 

citizens.

Neither the section nor its legislative history mentions the Veterans 

Preference Act. Accordingly, any contention that § 106 partially repealed that 

Act must rest on the argument that it was repealed by implication. It is a 

familiar principle of statutory construction that repeals by implication are 

disfavored. When two statutes are capable of coexistence, each must be 

regarded as effective absent a clearly expressed congressional intention to the 

contrary. Administrator, FAA v. Robertson, 422 U.S. 255 (1975); Morton

v. Mancari, 417 U.S. 535 (1974). Any repeal intention must be clear and 

manifest. Morton v. Mancari, 417 U.S. at 551. There is no expression of 

congressional intention that the Veterans Preference Act was to be affected in 

any way and it is reasonably possible to read the two statutes compatibly. For 

these reasons we believe that § 106 was not designed to alter the application of 

the Veterans Preference Act.

II.

Another question asked is whether the Commission was authorized to 

promulgate 5 CFR § 213.3106(b)(6) in the face of 5 U.S.C. § 3320. That 

statute reads as follows:

The nominating or appointing authority shall select for appointment to each vacancy in the excepted service in the executive branch

4W e note that Senator Schw eiker’s com m ents did not reflect an intent that the legislation under 

consideration in the hearings would have any effect on NATO SOFA. He merely requested 

Secretary Laird to look into the problem o f NATO SO FA ’s impact on employment opportunities 

for wives of Armed Forces personnel. M oreover, § 106 expressly disclaims any intent to alter any 

treaty obligation.

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and in the government of the District of Columbia from the qualified 

applicants in the same manner and under the same conditions 

required for the competitive service by sections 3308-3318 of this 

title. This section does not apply to an appointment required by 

Congress to be confirmed by, or made with the advice and consent 

of, the Senate.

We note preliminarily that all 5 CFR § 213.3106(b)(6) purports to do is place 

the dependent positions in Schedule A of the excepted service. In our opinion, 

5 U.S.C. § 3320 makes it clear that the Veterans Preference Act applies to the 

excepted service as well as the competitive service. Therefore, merely placing 

positions in the excepted service does not remove them from coverage of the 

Act. And as we have discussed above, there is no statutory authority in this case 

for a Veterans Preference Act exemption.5

For these reasons we are of the opinion that the Veterans Preference Act 

applies to those dependent positions filled under routine DOD appointing 

authority. Thus, the approximately 5,680 positions in this category must be 

filled in accordance with that Act, and any preference eligible applying for such 

a position must be accorded the benefit of that Act.

III.

Finally, we turn to the question whether the Veterans Preference Act must 

be applied to those local national positions filled by dependents pursuant to an 

informal agreement between the United States and the Federal Republic of 

Germany. The specific issue presented is whether an international agreement 

ratified by the Senate, in this instance, the NATO SOFA, and working 

arrangements under that agreement, take precedence over the Veterans 

Preference Act? We have, however, been informed by representatives of the 

General Counsel at both the Defense and State Departments that NATO 

SOFA’s exemption from U.S. employment laws6 applies only to foreign local 

nationals. Thus, they implicitly concede that there is no conflict between 

NATO SOFA and the Veterans Preference Act.

This, however, does not dispose of the question of whether the Commission 

must enforce that Act where dependents conditionally occupy local national 

positions. The facts presented indicate that any attempt to fill these positions 

with persons other than dependents of U.S. forces personnel will result in 

Germany’s insistence that the positions revert to German local nationals. 

Hence, such a result would make application of the Veterans Preference Act a

5The Commission has indicated that it intends to terminate the exception of § 213.3106(b)(6). 

While we do not believe this exception serves to excuse the requirements o f the Veterans 

Preference Act, we note that “ (t]he Commission may remove any position from or may revoke in 

whole or in part any provision of Schedule A , B , or C ." Commission Rule VI, 5 CFR § 6.6.

6NATO SOFA (4 UST 1792, 1810) provides that the laws of the receiving State shall be 

followed when U .S. forces or civilian components hire “ local civilian labour.” Neither the State 

Department nor DOD contends that these laws apply when U .S. citizens are placed in positions 

designated for local national occupancy.

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hollow victory for veterans since they would not be allowed to occupy these 

positions.

The Veterans Preference Act is not indifferent to circumstances that might 

warrant selection of persons other than preference eligibles, even where the 

preference eligible has the highest rating of all job applicants. An appointing 

officer may pass over a preference eligible and select a nonpreference eligible if 

the reasons for so doing are stated in writing, and if the Commission finds such 

reasons to be sufficient. 5 U.S.C. § 3318(b). That section makes it plain that 

the Commission is the ultimate authority on the decision whether the reasons 

for passing over a preference eligible are sufficient.7 Your predecessor stated 

that the Commission tentatively concluded that the Veterans Preference Act 

should not apply to the local national positions.

If the Commission decides that application of the Veterans Preference Act 

would not result in jobs in local national positions for veterans, and that this 

constitutes a sufficient reason to pass over preference eligibles, we believe that 

decision would be within the scope of the Commission’s authority.8

In sum, we believe that the Veterans Preference Act applies to overseas 

positions, and that there is no legal justification for excusing its application to 

regular DOD appointments. However, we think that the Commission is 

empowered to excuse its application to U.S. citizens filling the local national 

positions for the reasons stated herein.

We trust that this fully responds to your questions.

L a r r y a . H a m m o n d

Deputy Assistant Attorney General

Office of Legal Counsel

1See also S. Rept. No. 679, 83d C ong., 1st sess. 2 (1953), which makes it clear that the 

Commission has final authority in these decisions.

8Although § 3318(b) speaks in terms of passing over preference eligibles in individual 

appointments, we see no reason why the Commission may not grant a blanket pass over to cover a 

class o f appointments involving sim ilar situations, and having a common sufficient reason.

Further authority for such an exem ption may be found in 5 CFR § 3 0 2 .101(c), which provides in 

pertinent part:

. . . each agency shall follow the principles of veteran preference as far as administratively 

feasible. . . .

However, in the case of the local national positions it is arguable that it would not be 

“ administratively feasible” to apply the Veterans Preference Act since such application would not 

result in jobs for veterans.

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