105TH CONGRESS

2D SESSION S. 1021

AN ACT

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Veterans Employment

5 Opportunities Act of 1998’’.
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1 SEC. 2. ACCESS FOR VETERANS.

2 Section 3304 of title 5, United States Code, is

3 amended by adding at the end the following:

4 ‘‘(f)(1) Preference eligibles or veterans who have been

5 separated from the armed forces under honorable condi6 tions after 3 years or more of active service may not be

7 denied the opportunity to compete for vacant positions for

8 which the agency making the announcement will accept

9 applications from individuals outside its own workforce

10 under merit promotion procedures.

11 ‘‘(2) This subsection shall not be construed to confer

12 an entitlement to veterans’ preference that is not other13 wise required by law.

14 ‘‘(3) The area of consideration for all merit pro15 motion announcements which include consideration of in16 dividuals of the Federal workforce shall indicate that pref17 erence eligibles and veterans who have been separated

18 from the armed forces under honorable conditions after

19 3 years or more of active service are eligible to apply. The

20 announcements shall be publicized in accordance with sec21 tion 3327.

22 ‘‘(4) The Office of Personnel and Management shall

23 establish an appointing authority to appoint such pref24 erence eligibles and veterans.’’.
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1 SEC. 3. IMPROVED REDRESS FOR PREFERENCE ELIGIBLES.

2 (a) IN GENERAL.—Subchapter I of chapter 33 of title

3 5, United States Code, is amended by adding at the end

4 the following:

5 ‘‘§ 3330a. Preference eligibles; administrative redress

6 ‘‘(a)(1) A preference eligible who alleges that an

7 agency has violated such individual’s rights under any

8 statute or regulation relating to veterans’ preference may

9 file a complaint with the Secretary of Labor.

10 ‘‘(2)(A) A complaint under this subsection must be

11 filed within 60 days after the date of the alleged violation.

12 ‘‘(B) Such complaint shall be in writing, be in such

13 form as the Secretary may prescribe, specify the agency

14 against which the complaint is filed, and contain a sum15 mary of the allegations that form the basis for the com16 plaint.

17 ‘‘(3) The Secretary shall, upon request, provide tech18 nical assistance to a potential complainant with respect

19 to a complaint under this subsection.

20 ‘‘(b)(1) The Secretary of Labor shall investigate each

21 complaint under subsection (a).

22 ‘‘(2) In carrying out any investigation under this sub23 section, the Secretary’s duly authorized representatives

24 shall, at all reasonable times, have reasonable access to,

25 for purposes of examination, and the right to copy and
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1 receive, any documents of any person or agency that the

2 Secretary considers relevant to the investigation.

3 ‘‘(3) In carrying out any investigation under this sub4 section, the Secretary may require by subpoena the at5 tendance and testimony of witnesses and the production

6 of documents relating to any matter under investigation.

7 In case of disobedience of the subpoena or contumacy and

8 on request of the Secretary, the Attorney General may

9 apply to any district court of the United States in whose

10 jurisdiction such disobedience or contumacy occurs for an

11 order enforcing the subpoena.

12 ‘‘(4) Upon application, the district courts of the

13 United States shall have jurisdiction to issue writs com14 manding any person or agency to comply with the sub15 poena of the Secretary or to comply with any order of the

16 Secretary made pursuant to a lawful investigation under

17 this subsection and the district courts shall have jurisdic18 tion to punish failure to obey a subpoena or other lawful

19 order of the Secretary as a contempt of court.

20 ‘‘(c)(1)(A) If the Secretary of Labor determines as

21 a result of an investigation under subsection (b) that the

22 action alleged in a complaint under subsection (a) oc23 curred, the Secretary shall attempt to resolve the com24 plaint by making reasonable efforts to ensure that the

25 agency specified in the complaint complies with applicable
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1 provisions of statute or regulation relating to veterans’

2 preference.

3 ‘‘(B) The Secretary of Labor shall make determina4 tions referred to in subparagraph (A) based on a prepon5 derance of the evidence.

6 ‘‘(2) If the efforts of the Secretary under subsection

7 (b) with respect to a complaint under subsection (a) do

8 not result in the resolution of the complaint, the Secretary

9 shall notify the person who submitted the complaint, in

10 writing, of the results of the Secretary’s investigation

11 under subsection (b).

12 ‘‘(d)(1) If the Secretary of Labor is unable to resolve

13 a complaint under subsection (a) within 60 days after the

14 date on which it is filed, the complainant may elect to ap15 peal the alleged violation to the Merit Systems Protection

16 Board in accordance with such procedures as the Merit

17 Systems Protection Board shall prescribe, except that in

18 no event may any such appeal be brought—

19 ‘‘(A) before the 61st day after the date on

20 which the complaint is filed; or

21 ‘‘(B) later than 15 days after the date on which

22 the complainant receives written notification from

23 the Secretary under subsection (c)(2).

24 ‘‘(2) An appeal under this subsection may not be

25 brought unless—
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1 ‘‘(A) the complainant first provides written no2 tification to the Secretary of such complainant’s in3 tention to bring such appeal; and

4 ‘‘(B) appropriate evidence of compliance with

5 subparagraph (A) is included (in such form and

6 manner as the Merit Systems Protection Board may

7 prescribe) with the notice of appeal under this sub8 section.

9 ‘‘(3) Upon receiving notification under paragraph

10 (2)(A), the Secretary shall not continue to investigate or

11 further attempt to resolve the complaint to which the noti12 fication relates.

13 ‘‘(e)(1) This section shall not be construed to prohibit

14 a preference eligible from appealing directly to the Merit

15 Systems Protection Board from any action which is ap16 pealable to the Board under any other law, rule, or regula17 tion, in lieu of administrative redress under this section.

18 ‘‘(2) A preference eligible may not pursue redress for

19 an alleged violation described in subsection (a) under this

20 section at the same time the preference eligible pursues

21 redress for such violation under any other law, rule, or

22 regulation.

23 ‘‘§ 3330b. Preference eligibles; judicial redress

24 ‘‘(a) In lieu of continuing the administrative redress

25 procedure provided under section 3330a(d), a preference
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1 eligible may elect, in accordance with this section, to ter2 minate those administrative proceedings and file an action

3 with the appropriate United States district court not later

4 than 60 days after the date of the election.

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

6 made—

7 ‘‘(1) before the 121st day after the date on

8 which the appeal is filed with the Merit Systems

9 Protection Board under section 3330a(d); or

10 ‘‘(2) after the Merit Systems Protection Board

11 has issued a judicially reviewable decision on the

12 merits of the appeal.

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

14 writing, in such form and manner as the Merit Systems

15 Protection Board shall by regulation prescribe. The elec16 tion shall be effective as of the date on which it is received,

17 and the administrative proceeding to which it relates shall

18 terminate immediately upon the receipt of such election.

19 ‘‘§ 3330c. Preference eligibles; remedy

20 ‘‘(a) If the Merit Systems Protection Board (in a pro21 ceeding under section 3330a) or a court (in a proceeding

22 under section 3330b) determines that an agency has vio23 lated a right described in section 3330a, the Board or

24 court (as the case may be) shall order the agency to com25 ply with such provisions and award compensation for any
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1 loss of wages or benefits suffered by the individual by rea2 son of the violation involved. If the Board or court deter3 mines that such violation was willful, it shall award an

4 amount equal to backpay as liquidated damages.

5 ‘‘(b) A preference eligible who prevails in an action

6 under section 3330a or 3330b shall be awarded reasonable

7 attorney fees, expert witness fees, and other litigation ex8 penses.’’.

9 (b) CLERICAL AMENDMENT.—The table of sections

10 at the beginning of chapter 33 of title 5, United States

11 Code, is amended by adding after the item relating to sec12 tion 3330 the following:

‘‘3330a. Preference eligibles; administrative redress.

‘‘3330b. Preference eligibles; judicial redress.

‘‘3330c. Preference eligibles; remedy.’’.

13 SEC. 4. EXTENSION OF VETERANS’ PREFERENCE.

14 (a) AMENDMENT TO TITLE 5, UNITED STATES

15 CODE.—Paragraph (3) of section 2108 of title 5, United

16 States Code, is amended by striking ‘‘the Federal Bureau

17 of Investigation and Drug Enforcement Administration

18 Senior Executive Service, or the General Accounting Of19 fice;’’ and inserting ‘‘or the Federal Bureau of Investiga20 tion and Drug Enforcement Administration Senior Execu21 tive Service;’’.

22 (b) AMENDMENTS TO TITLE 3, UNITED STATES

23 CODE.—
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1 (1) IN GENERAL.—Chapter 2 of title 3, United

2 States Code, is amended by adding at the end the

3 following:

4 ‘‘§ 115. Veterans’ preference

5 ‘‘(a) Subject to subsection (b), appointments under

6 sections 105, 106, and 107 shall be made in accordance

7 with section 2108, and sections 3309 through 3312, of

8 title 5.

9 ‘‘(b) Subsection (a) shall not apply to any appoint10 ment to a position the rate of basic pay for which is at

11 least equal to the minimum rate established for positions

12 in the Senior Executive Service under section 5382 of title

13 5 and the duties of which are comparable to those de14 scribed in section 3132(a)(2) of such title or to any other

15 position if, with respect to such position, the President

16 makes certification—

17 ‘‘(1) that such position is—

18 ‘‘(A) a confidential or policy-making posi19 tion; or

20 ‘‘(B) a position for which political affili21 ation or political philosophy is otherwise an im22 portant qualification; and

23 ‘‘(2) that any individual selected for such posi24 tion is expected to vacate the position at or before

25 the end of the President’s term (or terms) of office.
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1 Each individual appointed to a position described in the

2 preceding sentence as to which the expectation described

3 in paragraph (2) applies shall be notified as to such expec4 tation, in writing, at the time of appointment to such posi5 tion.’’.

6 (2) CLERICAL AMENDMENT.—The table of sec7 tions at the beginning of chapter 2 of title 3, United

8 States Code, is amended by adding at the end the

9 following:

‘‘115. Veterans’ preference.’’.

10 (c) LEGISLATIVE BRANCH APPOINTMENTS.—

11 (1) DEFINITIONS.—For the purposes of this

12 subsection, the terms ‘‘covered employee’’ and

13 ‘‘Board’’ shall each have the meaning given such

14 term by section 101 of the Congressional Account15 ability Act of 1995 (2 U.S.C. 1301).

16 (2) RIGHTS AND PROTECTIONS.—The rights

17 and protections established under section 2108, sec18 tions 3309 through 3312, and subchapter I of chap19 ter 35, of title 5, United States Code, shall apply to

20 covered employees.

21 (3) REMEDIES.—

22 (A) IN GENERAL.—The remedy for a viola23 tion of paragraph (2) shall be such remedy as

24 would be appropriate if awarded under applica25 ble provisions of title 5, United States Code, in
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1 the case of a violation of the relevant cor2 responding provision (referred to in paragraph

3 (2)) of such title.

4 (B) PROCEDURE.—The procedure for con5 sideration of alleged violations of paragraph (2)

6 shall be the same as apply under section 401 of

7 the Congressional Accountability Act of 1995

8 (and the provisions of law referred to therein)

9 in the case of an alleged violation of part A of

10 title II of such Act.

11 (4) REGULATIONS TO IMPLEMENT SUB12 SECTION.—

13 (A) IN GENERAL.—The Board shall, pur14 suant to section 304 of the Congressional Ac15 countability Act of 1995 (2 U.S.C. 1384), issue

16 regulations to implement this subsection.

17 (B) AGENCY REGULATIONS.—The regula18 tions issued under subparagraph (A) shall be

19 the same as the most relevant substantive regu20 lations (applicable with respect to the executive

21 branch) promulgated to implement the statu22 tory provisions referred to in paragraph (2) ex23 cept insofar as the Board may determine, for

24 good cause shown and stated together with the

25 regulation, that a modification of such regula-
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1 tions would be more effective for the implemen2 tation of the rights and protections under this

3 subsection.

4 (C) COORDINATION.—The regulations

5 issued under subparagraph (A) shall be consist6 ent with section 225 of the Congressional Ac7 countability Act of 1995 (2 U.S.C. 1361).

8 (5) APPLICABILITY.—Notwithstanding any

9 other provision of this subsection, the term ‘‘covered

10 employee’’ shall not, for purposes of this subsection,

11 include an employee—

12 (A) whose appointment is made by the

13 President with the advice and consent of the

14 Senate;

15 (B) whose appointment is made by a Mem16 ber of Congress or by a committee or sub17 committee of either House of Congress; or

18 (C) who is appointed to a position, the du19 ties of which are equivalent to those of a Senior

20 Executive Service position (within the meaning

21 of section 3132(a)(2) of title 5, United States

22 Code).

23 (6) EFFECTIVE DATE.—Paragraphs (2) and (3)

24 shall be effective as of the effective date of the regu25 lations under paragraph (4).
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1 (d) JUDICIAL BRANCH APPOINTMENTS.—

2 (1) IN GENERAL.—Subject to paragraphs (2)

3 and (3), the Judicial Conference of the United

4 States shall prescribe procedures to provide for—

5 (A) veterans’ preference in the consider6 ation of applicants for employment, and in the

7 conduct of any reductions in force, within the

8 judicial branch; and

9 (B) redress for alleged violations of any

10 rights provided for under subparagraph (A).

11 (2) PROCEDURES.—Under the procedures, a

12 preference eligible (as defined by section 2108 of

13 title 5, United States Code) shall be afforded pref14 erences in a manner and to the extent consistent

15 with preferences afforded to preference eligibles in

16 the executive branch.

17 (3) EXCLUSIONS.—Nothing in the procedures

18 shall apply with respect to an applicant or em19 ployee—

20 (A) whose appointment is made by the

21 President with the advice and consent of the

22 Senate;

23 (B) whose appointment is as a judicial offi24 cer;
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1 (C) whose appointment is required by stat2 ute to be made by or with the approval of a

3 court or judicial officer; or

4 (D) whose appointment is to a position,

5 the duties of which are equivalent to those of a

6 Senior Executive Service position (within the

7 meaning of section 3132(a)(2) of title 5, United

8 States Code).

9 (4) DEFINITIONS.—For purposes of this sub10 section, the term ‘‘judicial officer’’ means a justice,

11 judge, or magistrate judge listed in subparagraph

12 (A), (B), (F), or (G) of section 376(a)(1) of title 28,

13 United States Code.

14 (5) SUBMISSION TO CONGRESS; EFFECTIVE

15 DATE.—

16 (A) SUBMISSION TO CONGRESS.—Not later

17 than 12 months after the date of enactment of

18 this Act, the Judicial Conference of the United

19 States shall submit a copy of the procedures

20 prescribed under this subsection to the Commit21 tee on Government Reform and Oversight and

22 the Committee on the Judiciary of the House of

23 Representatives and the Committee on Govern24 mental Affairs and the Committee on the Judi25 ciary of the Senate.
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1 (B) EFFECTIVE DATE.—The procedures

2 prescribed under this subsection shall take ef3 fect 13 months after the date of enactment of

4 this Act.

5 SEC. 5. VETERANS’ PREFERENCE REQUIRED FOR REDUC6 TIONS IN FORCE IN THE FEDERAL AVIATION

7 ADMINISTRATION.

8 Section 347(b) of the Department of Transportation

9 and Related Agencies Appropriations Act, 1996 (109 Stat.

10 460) is amended—

11 (1) by striking ‘‘and’’ at the end of paragraph

12 (6);

13 (2) by striking the period at the end of para14 graph (7) and inserting ‘‘; and’’; and

15 (3) by adding at the end the following:

16 ‘‘(8) sections 3501–3504, as such sections re17 late to veterans’ preference.’’.

18 SEC. 6. FAILURE TO COMPLY WITH VETERANS’ PREF19 ERENCE REQUIREMENTS TO BE TREATED AS

20 A PROHIBITED PERSONNEL PRACTICE FOR

21 CERTAIN PURPOSES.

22 (a) IN GENERAL.—Subsection (b) of section 2302 of

23 title 5, United States Code, is amended—

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

25 (10);
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1 (2) by redesignating paragraph (11) as para2 graph (12); and

3 (3) by inserting after paragraph (10) the fol4 lowing:

5 ‘‘(11)(A) knowingly take, recommend, or ap6 prove any personnel action if the taking of such ac7 tion would violate a veterans’ preference require8 ment; or

9 ‘‘(B) knowingly fail to take, recommend, or ap10 prove any personnel action if the failure to take such

11 action would violate a veterans’ preference require12 ment; or’’.

13 (b) DEFINITION; LIMITATION.—Section 2302 of title

14 5, United States Code, is amended by adding at the end

15 the following:

16 ‘‘(e)(1) For the purpose of this section, the term ‘vet17 erans’ preference requirement’ means any of the following

18 provisions of law:

19 ‘‘(A) Sections 2108, 3305(b), 3309, 3310,

20 3311, 3312, 3313, 3314, 3315, 3316, 3317(b),

21 3318, 3320, 3351, 3352, 3363, 3501, 3502(b),

22 3504, and 4303(e) and (with respect to a preference

23 eligible referred to in section 7511(a)(1)(B)) sub24 chapter II of chapter 75 and section 7701.

25 ‘‘(B) Sections 943(c)(2) and 1784(c) of title 10.
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1 ‘‘(C) Section 1308(b) of the Alaska National

2 Interest Lands Conservation Act.

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

4 of 1980.

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

6 title 38.

7 ‘‘(F) Section 1005(a) of title 39.

8 ‘‘(G) Any other provision of law that the Direc9 tor of the Office of Personnel Management des10 ignates in regulations as being a veterans’ preference

11 requirement for the purposes of this subsection.

12 ‘‘(H) Any regulation prescribed under sub13 section (b) or (c) of section 1302 and any other reg14 ulation that implements a provision of law referred

15 to in any of the preceding subparagraphs.

16 ‘‘(2) Notwithstanding any other provision of this title,

17 no authority to order corrective action shall be available

18 in connection with a prohibited personnel practice de19 scribed in subsection (b)(11). Nothing in this paragraph

20 shall be considered to affect any authority under section

21 1215 (relating to disciplinary action).’’.

22 (c) REPEALS.—

23 (1) SECTION 1599c OF TITLE 10, UNITED

24 STATES CODE.—
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1 (A) REPEAL.—Section 1599c of title 10,

2 United States Code, is repealed.

3 (B) CLERICAL AMENDMENT.—The table of

4 sections at the beginning of chapter 81 of such

5 title is amended by striking out the item relat6 ing to section 1599c.

7 (2) SECTION 2302(a)(1) OF TITLE 5, UNITED

8 STATES CODE.—Subsection (a)(1) of section 2302 of

9 title 5, United States Code, is amended to read as

10 follows:

11 ‘‘(a)(1) For the purpose of this title, ‘prohibited per12 sonnel practice’ means any action described in subsection

13 (b).’’.

14 (d) SAVINGS PROVISION.—This section shall be treat15 ed as if it had never been enacted for purposes of any

16 personnel action (within the meaning of section 2302 of

17 title 5, United States Code) preceding the date of enact18 ment of this Act.

19 SEC. 7. EXPANSION AND IMPROVEMENT OF VETERANS’ EM20 PLOYMENT EMPHASIS UNDER FEDERAL CON21 TRACTS.

22 (a) COVERED VETERANS.—Section 4212 of title 38,

23 United States Code, is amended—

24 (1) in subsection (a)—
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1 (A) by striking out ‘‘$10,000’’ and insert2 ing in lieu thereof ‘‘$25,000’’; and

3 (B) by striking out ‘‘special disabled veter4 ans and veterans of the Vietnam era’’ and in5 serting in lieu thereof ‘‘special disabled veter6 ans, veterans of the Vietnam era, and any other

7 veterans who served on active duty during a

8 war or in a campaign or expedition for which

9 a campaign badge has been authorized’’;

10 (2) in subsection (b), by striking out ‘‘special

11 disabled veteran or veteran of the Vietnam era’’ and

12 inserting in lieu thereof ‘‘veteran covered by the first

13 sentence of subsection (a)’’; and

14 (3) in subsection (d)(1), by striking out ‘‘veter15 ans of the Vietnam era or special disabled veterans’’

16 both places it appears and inserting in lieu thereof

17 ‘‘special disabled veterans, veterans of the Vietnam

18 era, or other veterans who served on active duty dur19 ing a war or in a campaign or expedition for which

20 a campaign badge has been authorized’’.

21 (b) PROHIBITION ON CONTRACTING WITH ENTITIES

22 NOT MEETING REPORTING REQUIREMENTS.—(1) Sub23 chapter III of chapter 13 of title 31, United States Code,

24 is amended by adding at the end the following:
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1 ‘‘§ 1354. Limitation on use of appropriated funds for

2 contracts with entities not meeting veter3 ans’ employment reporting requirements

4 ‘‘(a)(1) Subject to paragraph (2), no agency may obli5 gate or expend funds appropriated for the agency for a

6 fiscal year to enter into a contract described in section

7 4212(a) of title 38 with a contractor from which a report

8 was required under section 4212(d) of that title with re9 spect to the preceding fiscal year if such contractor did

10 not submit such report.

11 ‘‘(2) Paragraph (1) shall cease to apply with respect

12 to a contractor otherwise covered by that paragraph on

13 the date on which the contractor submits the report re14 quired by such section 4212(d) for the fiscal year con15 cerned.

16 ‘‘(b) The Secretary of Labor shall make available in

17 a database a list of the contractors that have complied

18 with the provisions of such section 4212(d).’’.

19 (2) The table of sections at the beginning of chapter

20 13 of such title is amended by adding at the end the fol21 lowing:

‘‘1354. Limitation on use of appropriated funds for contracts with entities not

meeting veterans’ employment reporting requirements.’’.
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1 SEC. 8. REQUIREMENT FOR ADDITIONAL INFORMATION IN

2 ANNUAL REPORTS FROM FEDERAL CONTRAC3 TORS ON VETERANS EMPLOYMENT.

4 Section 4212(d)(1) of title 38, United States Code,

5 as amended by section 7(a)(3) of this Act, is further

6 amended—

7 (1) by striking out ‘‘and’’ at the end of sub8 paragraph (A);

9 (2) by striking out the period at the end of sub10 paragraph (B) and inserting in lieu thereof ‘‘; and’’;

11 and

12 (3) by adding at the end the following:

13 ‘‘(C) the maximum number and the minimum

14 number of employees of such contractor during the

15 period covered by the report.’’.

Passed the Senate October 5 (legislative day, October 2), 1998.

Attest:

Secretary.
105TH CONGRESS

2D SESSION S. 1021

AN ACT

To amend title 5, United States Code, to provide

the competitive service, and for other purposes.erence eligibles applying for certain positions inthat consideration may not be denied to pref-