S. 1021

One Hundred Fifth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the twenty-seventh day of January, one thousand nine hundred and ninety-eight

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.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Veterans Employment Opportunities Act of 1998’’.

SEC. 2. ACCESS FOR VETERANS.

Section 3304 of title 5, United States Code, is amended by

adding at the end the following:

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

from the armed forces under honorable conditions after 3 years

or more of active service may not be denied the opportunity to

compete for vacant positions for which the agency making the

announcement will accept applications from individuals outside its

own workforce under merit promotion procedures.

‘‘(2) This subsection shall not be construed to confer an entitlement to veterans’ preference that is not otherwise required by

law.

‘‘(3) The area of consideration for all merit promotion announcements which include consideration of individuals of the Federal

workforce shall indicate that preference eligibles and veterans who

have been separated from the armed forces under honorable conditions after 3 years or more of active service are eligible to apply.

The announcements shall be publicized in accordance with section

3327.

‘‘(4) The Office of Personnel Management shall establish an

appointing authority to appoint such preference eligibles and veterans.’’.

SEC. 3. IMPROVED REDRESS FOR PREFERENCE ELIGIBLES.

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

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

‘‘§ 3330a. Preference eligibles; administrative redress

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

violated such individual’s rights under any statute or regulation

relating to veterans’ preference may file a complaint with the Secretary of Labor.

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

60 days after the date of the alleged violation.
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‘‘(B) Such complaint shall be in writing, be in such form as

the Secretary may prescribe, specify the agency against which the

complaint is filed, and contain a summary of the allegations that

form the basis for the complaint.

‘‘(3) The Secretary shall, upon request, provide technical assistance to a potential complainant with respect to a complaint under

this subsection.

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

under subsection (a).

‘‘(2) In carrying out any investigation under this subsection,

the Secretary’s duly authorized representatives shall, at all reasonable times, have reasonable access to, for purposes of examination,

and the right to copy and receive, any documents of any person

or agency that the Secretary considers relevant to the investigation.

‘‘(3) In carrying out any investigation under this subsection,

the Secretary may require by subpoena the attendance and testimony of witnesses and the production of documents relating to

any matter under investigation. In case of disobedience of the

subpoena or contumacy and on request of the Secretary, the Attorney General may apply to any district court of the United States

in whose jurisdiction such disobedience or contumacy occurs for

an order enforcing the subpoena.

‘‘(4) Upon application, the district courts of the United States

shall have jurisdiction to issue writs commanding any person or

agency to comply with the subpoena of the Secretary or to comply

with any order of the Secretary made pursuant to a lawful investigation under this subsection and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order

of the Secretary as a contempt of court.

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

an investigation under subsection (b) that the action alleged in

a complaint under subsection (a) occurred, the Secretary shall

attempt to resolve the complaint by making reasonable efforts to

ensure that the agency specified in the complaint complies with

applicable provisions of statute or regulation relating to veterans’

preference.

‘‘(B) The Secretary of Labor shall make determinations referred

to in subparagraph (A) based on a preponderance of the evidence.

‘‘(2) If the efforts of the Secretary under subsection (b) with

respect to a complaint under subsection (a) do not result in the

resolution of the complaint, the Secretary shall notify the person

who submitted the complaint, in writing, of the results of the

Secretary’s investigation under subsection (b).

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

under subsection (a) 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; or

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

complainant receives written notification from the Secretary

under subsection (c)(2).

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

unless—
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‘‘(A) the complainant first provides written notification to

the Secretary 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 shall not continue to investigate or further attempt to

resolve the complaint to which the notification relates.

‘‘(e)(1) 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.

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

violation described in subsection (a) under this section at the same

time the preference eligible pursues redress for such violation under

any other law, rule, or regulation.

‘‘§ 3330b. Preference eligibles; judicial redress

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

provided under section 3330a(d), a preference eligible 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(d); 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. Preference eligibles; 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 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. Preference eligibles; administrative redress.

‘‘3330b. Preference eligibles; judicial redress.

‘‘3330c. Preference eligibles; remedy.’’.
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SEC. 4. 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 ‘‘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 provisions 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
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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) and (3), the

Judicial Conference of the United States shall prescribe procedures 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 for alleged violations of any rights provided

for under subparagraph (A).

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

eligible (as defined by section 2108 of title 5, United States

Code) shall be afforded preferences in a manner and to the

extent consistent with preferences afforded to preference eligibles in the executive branch.

(3) EXCLUSIONS.—Nothing in the procedures shall apply

with respect to an applicant or employee—

(A) whose appointment is made by the President with

the advice and consent of the Senate;

(B) whose appointment is as a judicial officer;
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(C) whose appointment is required by statute to be

made by or with the approval of a court or judicial officer;

or

(D) whose appointment is 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) DEFINITIONS.—For purposes of this subsection, 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.

(5) SUBMISSION TO CONGRESS; EFFECTIVE DATE.—

(A) SUBMISSION TO CONGRESS.—Not later than 12

months after the date of enactment of this Act, the Judicial

Conference of the United States shall submit a copy of

the procedures 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 procedures prescribed under

this subsection shall take effect 13 months after the date

of enactment of this Act.

SEC. 5. 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—

(1) by striking ‘‘and’’ at the end of paragraph (6);

(2) by striking the period at the end of paragraph (7)

and inserting ‘‘; and’’; and

(3) by adding at the end the following:

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

preference.’’.

SEC. 6. 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
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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.—

(1) SECTION 1599c OF TITLE 10, UNITED STATES CODE.—

(A) REPEAL.—Section 1599c of title 10, United States

Code, is repealed.

(B) CLERICAL AMENDMENT.—The table of sections at

the beginning of chapter 81 of such title is amended by

striking out the item relating to section 1599c.

(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 enactment of this Act.

SEC. 7. EXPANSION AND IMPROVEMENT OF VETERANS’ EMPLOYMENT

EMPHASIS UNDER FEDERAL CONTRACTS.

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

Code, is amended—

(1) in subsection (a)—

(A) by striking out ‘‘$10,000’’ and inserting in lieu thereof ‘‘$25,000’’; and

(B) by striking out ‘‘special disabled veterans and veterans of the Vietnam era’’ and inserting in lieu thereof ‘‘special disabled veterans, veterans of the Vietnam era, and

any other veterans who served on active duty during a

war or in a campaign or expedition for which a campaign

badge has been authorized’’;

(2) in subsection (b), by striking out ‘‘special disabled veteran or veteran of the Vietnam era’’ and inserting in lieu

thereof ‘‘veteran covered by the first sentence of subsection

(a)’’; and

(3) in subsection (d)(1), by striking out ‘‘veterans of the

Vietnam era or special disabled veterans’’ both places it appears
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and inserting in lieu thereof ‘‘special disabled veterans, veterans

of the Vietnam era, or other veterans who served on active

duty during a war or in a campaign or expedition for which

a campaign badge has been authorized’’.

(b) PROHIBITION ON CONTRACTING WITH ENTITIES NOT MEETING

REPORTING REQUIREMENTS.—(1) Subchapter III of chapter 13 of

title 31, United States Code, is amended by adding at the end

the following:

‘‘§ 1354. Limitation on use of appropriated funds for contracts

with entities not meeting veterans’ employment

reporting requirements

‘‘(a)(1) Subject to paragraph (2), no agency may obligate or

expend funds appropriated for the agency for a fiscal year to enter

into a contract described in section 4212(a) of title 38 with a

contractor from which a report was required under section 4212(d)

of that title with respect to the preceding fiscal year if such contractor did not submit such report.

‘‘(2) Paragraph (1) shall cease to apply with respect to a contractor otherwise covered by that paragraph on the date on which

the contractor submits the report required by such section 4212(d)

for the fiscal year concerned.

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

a list of the contractors that have complied with the provisions

of such section 4212(d).’’.

(2) The table of sections at the beginning of chapter 13 of

such title is amended by adding at the end the following:

‘‘1354. Limitation on use of appropriated funds for contracts with entities not meeting veterans’ employment reporting requirements.’’.

SEC. 8. REQUIREMENT FOR ADDITIONAL INFORMATION IN ANNUAL

REPORTS FROM FEDERAL CONTRACTORS ON VETERANS

EMPLOYMENT.

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

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

(1) by striking out ‘‘and’’ at the end of subparagraph (A);

(2) by striking out the period at the end of subparagraph

(B) and inserting in lieu thereof ‘‘; and’’; and
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(3) by adding at the end the following:

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

employees of such contractor during the period covered by

the report.’’.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.