[Federal Register Volume 66, Number 97 (Friday, May 18, 2001)]
[Notices]
[Pages 27696-27701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12627]


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MERIT SYSTEMS PROTECTION BOARD


Opportunity To File Amicus Briefs in Cassandra Augustine v. 
Department of Veterans Affairs, MSPB Docket Number SF-3443-00-0085-I-1

AGENCY: Merit Systems Protection Board (MSPB).

ACTION: The Merit Systems Protection Board is providing interested 
parties with an Opportunity to submit amicus briefs in the above-
referenced appeal. The issues to be addressed in such briefs are set 
forth in the Board's May 14, 2001, opinion and order, which is 
reprinted in its entirety in the summary below.

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SUMMARY: The Department of Veterans Affairs (DVA) petitions for review 
of the initial decision which found that it violated the appellant's 
veterans' preference rights. The Office of Personnel Management (OPM) 
has intervened in support of DVA's petition for review. For the reasons 
set forth below, we VACATE the initial decision, REOPEN the record, and 
ORDER presentation of further argument and evidence. We also invite 
interested parties to submit briefs amicus curiae on the issues 
discussed in this decision.

Background

    The appellant, a veteran with a 30% service-connected disability, 
applied for the position of Veterans Service Representative (VSR), GS-
996-7, with the DVA. Initial Appeal File (IAF), Tab 8, Subtab 2 at 3, 
20, 23. The vacancy announcement listed nine locations, and indicated 
that there were ``[o]ne or more positions at each location.'' The 
announcement also stated that the candidates would be ``rated'' and 
``rank[ed]'' according to how well their knowledge, skills, and 
abilities ``matche[d] * * * the requirements identified for the 
position.'' In addition, the announcement indicated that individuals 
who met one of the following ``recruitment categories'' could apply: 
``Outstanding Scholar''; ``Veterans Readjustment Act (VRA) eligibles''; 
``30% or more disabled veterans''; ``Preference Eligibles'' and 
veterans honorably discharged after 3 or more years of active military 
duty; ``Chapter 31 veterans''; ``Handicapped Eligibles''; and ``VA CTAP 
or Interagency CTAP Eligibles.'' The announcement further stated, 
however, that ``first consideration'' would be given to ``[i]nternal 
candidates'' who applied under DVA's ``Merit Promotion'' plan. Id., 
Subtab 1 at 1-3.
    DVA, which holds delegated authority from OPM to examine 
candidates, generated seven certificates, each corresponding to one of 
the recruitment categories listed in the vacancy announcement. The 
appellant's name appeared on the 30% or more disabled veteran 
certificate and the VRA certificate. Although the appellant qualified 
as a preference eligible pursuant to 5 U.S.C. 2108(3)(C), the agency 
did not include her name on the certificate of ``Preference Eligibles'' 
and veterans honorably discharged after 3 or more years of active 
military duty. DVA did not rank any of the candidates. Ultimately it 
filled nine positions, selecting five individuals from the 30% or more 
disabled veteran certificate, three individuals from the Outstanding 
Scholar certificate (none of whom were preference eligible), and one 
individual from the certificate of ``Preference Eligibles'' and 
veterans honorably discharged after 3 or more years of active military 
duty. The record indicates that the individual selected from the final 
certificate was preference eligible pursuant to 5 U.S.C. 2108(3)(E) as 
the spouse of a service-connected disabled veteran. Although the 
initial decision indicates that the agency did not treat this candidate 
as a preference eligible, IAF, Tab 11 at 4, the certificate on which 
this candidate's name appeared clearly indicated that she was entitled 
to 10 veterans preference points, IAF, Tab 8, Subtab 3 at 9. IAF,

[[Page 27697]]

Tab 8, Subtab 3 at 9-10; Petition for Review (PFR) File, Tab 3. DVA 
found the appellant qualified for the position but did not select her. 
IAF, Tab 8, Subtab 3 at 1-5, Subtab 5.
    The appellant filed a complaint with the Department of Labor (DoL) 
claiming that her veterans' preference rights had been violated. After 
an investigation, DoL notified the appellant that her claim did ``not 
have merit.'' IAF, Tab 8, Subtab 9. The appellant then filed this 
timely appeal. Id., Tab 1; see 5 U.S.C. 3330a(d). The administrative 
judge, after considering argument and documentary evidence from the 
parties (the appellant did not request a hearing, IAF, Tab 1 at 7), 
held that DVA violated the appellant's veterans' preference rights at 5 
U.S.C. 3318 by ``passing [her] over'' in favor of non-veterans without 
seeking and obtaining OPM's approval. He further held that DVA's 
``practice of issuing multiple certificates'' corresponding to 
different recruitment categories ``and then selecting from them all at 
once, regardless of whether preference eligibles have been exhausted,'' 
had the effect of ``nullif[ying]'' the appellant's veterans'' 
preference. By way of relief, the administrative judge ordered DVA to 
appoint the appellant retroactive to the date she would have entered on 
duty had she been selected, to provide her with back pay, and to pay 
her an additional sum as damages. IAF, Tab 11.
    DVA argues in its timely petition for review that the authority 
relied on by the administrative judge, 5 U.S.C. 3318, applies only to 
selections from ranked certificates, and that it was not required to 
rank candidates for the VSR position the appellant sought because it 
filled the position by ``internal agency merit promotion procedures.'' 
DVA further argues that by regulation, it has broad discretion in 
choosing how it fills positions. DVA argues, in the alternative, that 
the remedies ordered by the administrative judge are not authorized by 
statute. Petition for Review File (PRF), Tab 3. In response, the 
appellant argues, as she did below, that ``[c]ivil service law requires 
Federal examining offices to give job applicants numerical scores and 
to refer candidates for employment based on their scores.'' She further 
maintains that as part of this process, veterans preference rules 
mandate that the scores of preference eligibles be ``augment[ed].'' 
Id., Tab 4; see also IAF, Tab 9 at 8. Although labeled ``Cross Petition 
for Review,'' the appellant's response to the petition for review is 
not actually in the nature of a cross petition because the appellant 
does not argue that the initial decision contains an error. See Hanner 
v. Department of the Army, 62 M.S.P.R. 677, 680 n.2 (1994), aff'd, 48 
F.3d 1236 (Fed. Cir. 1995) (Table).
    OPM has intervened as a matter of right. PRF, Tab 7; see 5 U.S.C. 
7701(d)(1). OPM argues that the authority relied on by the 
administrative judge, 5 U.S.C. 3318, applies only to ``competitive 
appointments,'' and that ``[h]ere, the agency filled the positions non-
competitively.'' OPM further argues that agencies have ``wide 
discretion in selecting the method by which they make appointments,'' 
and that the seven recruitment categories used in this case, each of 
which represents a different ``hiring authorit[y],'' are all based on 
``non-competitive procedures.'' OPM maintains that DVA was not required 
to rank the candidates. OPM argues, in the alternative, that even if 
there was a violation of the appellant's veterans' preference rights, 
the remedies ordered by the administrative judge are not authorized by 
statute. PRF, Tab 11. The appellant argues in response to OPM's brief 
that DVA was required to rank candidates, and that it was not permitted 
to segregate VRA-eligibles from other candidates. She also appears to 
contend that the remedies ordered by the administrative judge are 
authorized by statute. Id., Tab 12.

Analysis

    The appellant has veterans' preference eligibility, she claims that 
her statutory veterans' preference rights were violated when DVA did 
not select her for the VSR position in 1999, and she has exhausted her 
remedy with DoL. Accordingly, her appeal is within the Board's 
jurisdiction under the Veterans Employment Opportunities Act (VEOA). 
See 5 U.S.C. 3330a(a), (d); see also Smyth v. U.S. Postal Service, 85 
M.S.P.R. 549, Paras.  2 & 6 (2000) (VEOA creates a right of redress for 
actions taken after October 30, 1998 that are alleged to violate an 
individual's veterans' preference rights). The appellant appears to 
claim that irrespective of her veterans' preference rights, she was 
qualified for an Outstanding Scholar appointment. See IAF, Tab 9 at 3-
4; PRF, Tab 12 at 7. This appeal, however, is limited to the question 
of whether the agency violated the appellant's veterans' preference 
rights. 5 U.S.C. 3330a(a). The Board lacks independent authority to 
enforce an individual's rights under the Outstanding Scholar program.
    With the exception of certain high-level and specialized jobs that 
have no relevance here, positions in the federal civil service are 
either ``competitive'' or ``excepted.'' See 5 U.S.C. Sec. 2102, 2103. 
The parties have not addressed, and the vacancy announcement does not 
expressly state, whether the VSR position is in the competitive 
service. Nonetheless, the position is not listed in the comprehensive 
schedules of excepted-service positions published by OPM. See 5 CFR 
213.3101-213.3302; 64 Fed. Reg. 48,461-48,464 (1999). Moreover, 
according to regulations and guidance issued by OPM, at least two of 
the recruitment categories listed in the vacancy announcement for the 
VSR position, VRA and Outstanding Scholar, are restricted to 
competitive-service positions. See 5 CFR 307.101(d); see also http://www.opm.gov/employ/luevano.htm>. Finally, the SF-50 memorializing the 
appellant's appointment to the VSR position in compliance with the 
interim relief order unmistakably indicates that the position is in the 
competitive service. PRF, Tab 1, Ex. 1 at 2.
    Having determined that the VSR position is in the competitive 
service, we now turn to how veterans' preference operates in hiring for 
competitive-service positions. Veterans' preference in this context 
takes two basic forms. First, by statute, agencies are permitted to 
appoint certain veterans non-competitively. For example, veterans with 
compensable service-connected disabilities of 30% or more may receive 
``non-competitive appointment[s] leading to conversion to career or 
career-conditional employment.'' 5 U.S.C. 3112. To take another 
example, veterans of certain conflicts who meet specified education 
requirements are eligible for non-competitive ``excepted'' appointments 
at or below particular grades to positions ``otherwise'' in the 
competitive service. See 38 U.S.C. 4214; 5 CFR 307.104; Exec. Order No. 
11,521, 35 FR 5311 (1970).
    The second form that veterans' preference takes in hiring comes 
into play in the competitive examining process. An examination may 
consist of a written test, but it might instead consist of a work 
sample assessment, a structured interview, rating and ranking according 
to job-related competencies, verification of a professional 
certification recognized by a general professional community, or a 
combination of these or other formal evaluation devices. See Delegated 
Examining Operations Handbook, Office of Personnel Management (Oct. 
1999), 2.2. In this decision we cite OPM's Delegated Examining 
Operations Handbook as general background and as evidence of what OPM's 
official guidance to employing agencies is. We make no finding on 
whether the Handbook or any part of it is consistent

[[Page 27698]]

with related statutes and regulations, whether it is entitled to 
deference, whether it was promulgated under or subject to notice-and-
comment procedures, see 5 U.S.C. 553, or any other matter bearing on 
its validity. The appellant correctly points out that an integral part 
of the competitive examining process is the assignment of numerical 
scores, and then rating and ranking candidates according to those 
scores. PRF, Tab 4 at 2 (``[c]ivil service law requires Federal 
examining offices to give job applicants numerical scores and to refer 
candidates for employment based on their scores''); see also IAF, Tab 9 
at 8. An examining authority, either OPM or an agency operating under a 
delegation of authority from OPM pursuant to 5 U.S.C. 1104(a)(2), 
``shall assign numerical ratings'' to candidates. 5 CFR 337.101(a).
    Under the Veterans' Preference Act, Pub. L. 359, ch. 287, 58 Stat. 
390, as amended, preference-eligible veterans have additional points 
added to their passing scores on examinations. See 5 U.S.C. 3309; 5 CFR 
337.101(b). The names of applicants who have qualified for appointment 
to the competitive service are entered onto registers, or ``lists of 
eligibles,'' in rank order, with preference eligibles ranked ahead of 
others with the same rating. See 5 U.S.C. 3313; 5 CFR 332.401. For 
positions other than scientific and professional positions in the 
grades of GS-9 or higher, disabled veterans who have a compensable 
service-connected disability of 10 percent or more are entered onto 
registers in order of their ratings ahead of all remaining applicants. 
See 5 U.S.C. 3313(2). An examining authority certifies ``enough names 
from the top of the appropriate register'' to permit the appointing 
authority ``to consider at least three names for appointment to each 
vacancy in the competitive service.'' 5 U.S.C. 3317(a). The appointing 
authority ``shall select for appointment to each vacancy from the 
highest three eligibles available for appointment on the certificate 
furnished under section 3317(a).'' 5 U.S.C. 3318(a). If an appointing 
authority ``proposes to pass over a preference eligible on a 
certificate in order to select an individual who is not a preference 
eligible, such authority shall file written reasons with (OPM) for 
passing over the preference eligible'' and obtain OPM's approval for 
the passover. 5 U.S.C. 3318(b)(1). In the case of a preference-eligible 
veteran with a 30% or more disability (such as the appellant), the 
veteran is entitled to notice of the proposed passover and an 
opportunity to respond to OPM. 5 U.S.C. 3318(b)(2). For appointments to 
vacancies in the excepted service in the executive branch, the 
nominating or appointing authority must select applicants in the same 
manner and under the same conditions required for the competitive 
service by 5 U.S.C. 3308-3318. See 5 U.S.C. 3320.
    The administrative judge held that DVA violated the appellant's 
rights as a preference-eligible veteran under 5 U.S.C. 3318 when it 
selected non-preference eligibles without notifying the appellant and 
OPM that it proposed to pass her over. He further held that DVA's use 
of multiple certificates, and then its selection from them ``all at 
once,'' had the effect of ``nullif[ying]'' the appellant's veterans'' 
preference. DVA and OPM disagree, offering three different explanations 
for why DVA was permitted to use multiple certificates of unranked 
candidates. None of these explanations squares with the vacancy 
announcement itself, which expressly indicates that candidates would be 
rated and ranked. IAF, Tab 8, Subtab 1 at 3.
    Before the administrative judge, DVA explained its actions by 
citing a regulation governing selection from unranked candidates for 
excepted-service positions. IAF, Tab 8 at 4 n.3 & Subtab 11 (relying on 
5 CFR 302.401(a)). This regulation does not appear to have any 
application in this case, which concerns the selection process for a 
competitive-service position. However, as noted supra, para. 16 n.6, 
the individual selected from the certificate for ``Preference 
eligibles'' and veterans honorably discharged after 3 or more years of 
active military duty was appointed using a Schedule B excepted service 
appointing authority. The VEOA, as originally enacted, directed OPM to 
create a new appointing authority pursuant to 5 U.S.C. 3304(f). See 
Pub. L. 105-336, section 2, 112 Stat. 3182. OPM then announced a new 
Schedule B excepted appointing authority for appointments under the 
statute. See 63 FR 66,705 (1998) (codified at 5 CFR 213.3202(n) 
(1999)). Congress amended 5 U.S.C. 3304(f) in 1999, requiring that an 
individual hired under the new authority receive a career or career-
conditional appointment. Pub. L. 106-117, Sec. 511, 113 Stat. 1575 
(codified at 5 U.S.C.A. 3304(f)(2) (West. Supp. 2000)). Thereafter, OPM 
announced that the Schedule B excepted appointing authority could no 
longer be used for new appointments after November 30, 1999, and that a 
new competitive appointing authority would replace it. See 65 FR 14,431 
(2000) (to be codified at 5 CFR 315.611). In this case, the individual 
hired under the VEOA to the VSR position the appellant sought was 
appointed on or about August 2, 1999, under the then-existing Schedule 
B excepted authority. IAF, Tab 8, Subtab 3 at 9.
    On review, DVA now contends that ranking of the candidates and 
recognition of veterans' preference was not required because it filled 
the positions by ``internal Agency merit promotion procedures.'' PRF, 
Tab 3 at 3. Based on the statutes cited above and an OPM regulation, it 
appears that promotion of a current employee--as opposed to a new 
appointment in the competitive service--does not require competitive 
examination. 5 CFR Sec. 332.101(b) (``An examination for promotion, 
demotion, reassignment, transfer, or reinstatement may be a 
noncompetitive examination.''). Nonetheless, in this case DVA described 
the vacancy announcement in a letter to DoL as ``a solicitation for new 
employees who could join our roles (sic).'' IAF, Tab 8, Subtab 4 at 1 
(emphasis supplied). Furthermore, the selection certificates indicate 
that outside candidates were considered. Id., Subtab 3 at 1, 3, 5, 7. 
Indeed, three of the selectees were hired under the Outstanding Scholar 
program; it appears that the order approving the consent decree that 
created that program and OPM's official guidance describing the program 
limit Outstanding Scholar appointments to new hires into the 
competitive service. See generally Luevano v. Campbell, 93 F.R.D. 68 
(D.D.C. 1981); Delegated Examining Operations Handbook, Sec. 2.8(A). In 
short, on this record we have no basis to conclude that DVA filled all 
nine of the VSR positions (or any of them, for that matter) by internal 
promotion.
    OPM offers a third explanation for what happened: DVA exercised its 
discretion to fill the VSR position ``non-competitively.'' PRF, Tab 11 
at 3. Five of the selectees in this case were appointed under a statute 
authorizing non-competitive appointment of a veteran with a 30% or 
greater service-connected disability; the statute is written in 
permissive terms, and its use appears to be committed to agency 
discretion. See 5 U.S.C. 3112 (``Under such regulations as the Office 
of Personnel Management shall prescribe, an agency may make a 
noncompetitive appointment leading to conversion to career or career-
conditional employment of a disabled veteran who has a compensable 
service-connected disability of 30 percent or more.''). The sixth 
selectee was appointed from the certificate of preference eligibles and 
veterans honorably discharged after 3 or more years of active military 
duty; this appointment was made under 5 U.S.C.

[[Page 27699]]

3304(f), which at the relevant time OPM interpreted as allowing the 
non-competitive appointment of certain veterans under merit promotion 
procedures when an agency is accepting applications from outside its 
workforce. All indications are that use of this authority also was 
discretionary. The VEOA, as originally enacted, directed OPM to create 
a new appointing authority pursuant to 5 U.S.C. 3304(f). See Pub. L. 
105-336, sec. 2, 112 Stat. 3182. OPM then announced a new Schedule B 
excepted appointing authority for appointments under the statute. See 
63 FR 66,705 (1998) (codified at 5 CFR 213.3202(n) (1999)). Congress 
amended 5 USC 3304(f) in 1999, requiring that an individual hired under 
the new authority receive a career or career-conditional appointment. 
Pub. L. 106-117, sec. 511, 113 Stat. 1575 (codified at 5 U.S.C.A. 
304(f)(2) (West. Supp. 2000)). Thereafter, OPM announced that the 
Schedule B excepted appointing authority could no longer be used for 
new appointments after November 30, 1999, and that a new competitive 
appointing authority would replace it. See 65 FR 14,431 (2000) (to be 
codified at 5 CFR Sec. 315.611). In this case, the individual hired 
under the VEOA to the VSR position the appellant sought was appointed 
on or about August 2, 1999, under the then-existing Schedule B excepted 
authority. IAF, Tab 8, Subtab 3 at 9.
    The remaining three selectees were appointed under the Outstanding 
Scholar program. This program was created in 1981 under a consent 
decree entered in a class action suit in which the plaintiffs alleged 
that OPM's competitive examination for entry into over 100 civil 
service occupations had a disparate impact on minority racial and 
ethnic groups. See Luevano, 93 F.R.D. at 73-74, 78-79. The GS-0996 job 
series covering the VSR position the appellant sought is covered by the 
decree. See Delegated Examining Operations Handbook, Appendix B. OPM's 
official guidance concerning the Outstanding Scholar program states as 
follows:

    Under the terms of the Luevano consent decree the Outstanding 
Scholar program was established as a supplement to the competitive 
examining process where under-representation of Blacks and Hispanics 
exists. This authority was not intended to replace competitive 
examining, nor to become the primary method of hiring. This 
authority allows agencies to appoint Outstanding Scholars [meeting 
specified college grade-point or class standing criteria] as an 
exception to normal competitive procedures, that is, the rule of 
three and veterans' preference do not apply.

Id., Sec. 2.8(A).
    OPM contends that DVA had the discretion to fill the VSR position 
under the Outstanding Scholar program instead of under competitive 
examination procedures. PRF, Tab 11 at 7. However, the only authority 
cited by OPM in support of this argument is the Luevano consent decree 
itself. Id. At this stage we are not convinced that the consent 
decree--an agreement between an executive agency and private parties 
approved by a district court judge--by itself is sufficient authority 
for an agency to choose not to use competitive examining, especially 
when a qualified veteran with statutory preference in such an 
examination applies for an announced vacancy. Indeed, in explaining why 
it interpreted the original version of VEOA as requiring a new excepted 
appointing authority under 5 U.S.C. 3304, see note 5 above, OPM stated 
that ``absent specific legislation or Executive order, OPM has no 
authority to permit the noncompetitive appointment of candidates in the 
competitive service.'' 65 FR 14,431 (2000). If this is so, then we 
would expect OPM to cite ``specific legislation or [an] Executive 
order'' as authority for the Outstanding Scholar program, but OPM does 
not cite any such source. OPM does argue that DVA's use of the 
Outstanding Scholar appointing method was authorized by 5 CFR 330.101, 
which states that ``[a]n appointing officer may fill a position in the 
competitive service by any of the methods authorized in this chapter.'' 
PRF, Tab 11 at 4. The current version of Chapter I, Title 5 CFR, 
contains three references to the Outstanding Scholar program, but none 
actually authorizes an appointment under that program; more important, 
OPM does not argue that these provisions are based on ``specific 
legislation or Executive order.'' See 5 CFR 315.710, 330.205(g), 
330.705(b)(2). At one point Outstanding Scholar appointments were 
covered by a special Schedule B appointing authority at 5 CFR 213.3202. 
That authority, however, was an interim measure to be used while OPM 
developed an alternative competitive examining method for positions 
covered by the Luevano consent decree, which it ultimately did when it 
announced the Administrative Careers with America examination. The 
Schedule B hiring authority no longer covers Outstanding Scholars. See 
57 FR 724 (1992); 54 FR 15,369 (1989); National Treasury Employees 
Union v. Newman, 768 F. Supp. 8, 9-10 (D.D.C. 1991).
    To recapitulate, even if OPM's regulations authorize non-
competitive hiring under the Outstanding Scholar program, OPM and DVA 
have not shown, or even argued, that Congress or the President approved 
the Outstanding Scholar program as an exception to competitive 
examining laws. Likewise, OPM and DVA have not shown, or even argued, 
that any statute or executive order delegates to OPM or any other 
executive agency the power to create a non-competitive appointing 
authority such as the Outstanding Scholar program. Finally, even if the 
Outstanding Scholar program was within OPM's or another executive 
agency's authority to create, OPM and DVA have not explained what 
rules, if any, guide its use, either in general, or when, as in this 
case, a qualified preference-eligible veteran vies for a position. In 
particular, the record does not show, with respect to the VSR position 
at issue, that DVA's use of the Outstanding Scholar program was 
consistent with OPM's requirement that the program be invoked ``as a 
supplement to the competitive examining process where under-
representation of Blacks and Hispanics exists.'' Delegated Examining 
Operations Handbook, Sec. 2.8(A) (emphasis supplied). It is undisputed 
that DVA did not conduct a competitive examination before selecting 
nine individuals for the VSR position the appellant sought; moreover, 
the record as currently developed does not indicate that DVA invoked 
the Outstanding Scholar appointing authority to ameliorate ``under-
representation of Blacks and Hispanics.''
    We are mindful of the important social goals of the civil rights 
laws under which the Luevano plaintiffs brought their suit. This case 
seeks redress for alleged violation of the veterans' preference 
provisions of the civil service laws. The government ``is obliged to 
abide by both [sets of] statutes, and may not satisfy one at the 
expense of the other.'' National Treasury Employees Union v. Horner, 
654 F. Supp. 1159, 1166 n.5 (D.D.C. 1987), aff'd in part, rev'd in part 
on other grounds, 854 F.2d 490 (D.C. Cir. 1988). We must consider 
seriously the appellant's argument that DVA was not permitted to choose 
to hire non-veterans without competitive examination because of the 
primacy that competitive examination has in the civil service system, 
as discussed below.
    The Pendleton Civil Service Act of 1883 replaced a patronage 
system, under which civil service appointments had frequently been used 
to reward political supporters, with a ``classified civil service,'' 
entry into which required competitive examination. See Hampton v. Mow 
Sun Wong, 426 U.S. 88, 106

[[Page 27700]]

(1976); Arnett v. Kennedy, 416 U.S. 134, 149 (1974). The 
``fundamental'' idea underlying the Pendleton Act was that ``a new 
appointment'' in the civil service ``shall be given to the [person] who 
is best fitted to discharge the duties of the position, and that such 
fitness shall be ascertained by open, fair, honest, impartial 
competitive examination.'' National Treasury Employees Union v. Horner, 
654 F. Supp. at 1161-62 (quoting S. Rep. No. 576, 47th Cong., 1st 
Sess., at 13-14 (1882) (emphasis supplied by court)). Nearly 100 years 
after the Pendleton Act, Congress reaffirmed the principle of fair and 
open competition for entry into the civil service. The Civil Service 
Reform Act of 1978 codified the ``merit system principles,'' the first 
of which states:

    Recruitment should be from qualified individuals from 
appropriate sources in an endeavor to achieve a work force from all 
segments of society, and selection and advancement should be 
determined solely on the basis of relative ability, knowledge, and 
skills, after fair and open competition which assures that all 
receive equal opportunity.

5 U.S.C. 2301(b)(1) (emphasis supplied).
    Exceptions to the competitive examination requirement are 
permitted. See 5 U.S.C. 3304(b) (``[a]n individual may be appointed in 
the competitive service only if he has passed an examination'' or is 
appointed under an authority excepting him from the examination 
requirement); see also 5 U.S.C. 3302(2). For example, statutes such as 
those mentioned in para. 9 above authorize non-competitive appointment 
of veterans meeting certain criteria. Likewise, Civil Service Rules 
1.3(c) and 7.1, first promulgated by the President in 1954 under 5 
U.S.C. 3301, give an appointing officer the discretion to fill a 
position in the competitive service either by competitive examination 
or by non-competitive appointment of a former federal employee who 
acquired ``competitive status'' under a prior appointment. See Exec. 
Order No. 10,577 (Nov. 23, 1954), sec. 101, 19 FR 7521 (1954), 
reprinted at 5 U.S.C.A. 3301 note, currently codified at 5 CFR Part 1, 
Secs. 1.3(c), 7.1; see also 5 CFR 212.301 (explaining how competitive 
status is acquired). Apart from the discretionary use of non-
competitive appointing authorities, Civil Service Rule 3.2 allows 
appointment without competitive examination ``in rare cases,'' namely, 
when because of the ``duties or compensation'' of a position or the 
scarcity of ``qualified persons,'' the position ``cannot be filled 
through open competitive examination.'' 5 CFR Part 1, 3.2; see also 5 
CFR 332.101(a) (OPM may authorize non-competitive examinations ``when 
sufficient competent persons do not compete''). The parties do not 
argue, and there is no evidence to indicate, that these exceptions to 
the competitive examining requirement were or could properly have been 
invoked with regard to the VSR position the appellant sought.
    In light of the importance of the above questions to veterans and 
to class members in the Luevano litigation, we decline to rule on the 
merits of the appellant's claim without further briefing. A decision 
either way could profoundly affect one group or the other (or both), 
and as the above discussion indicates, thus far the issues have not 
been well-framed or discussed. Furthermore, it would be unwise for us 
to decide this case and potentially set precedent with just the 
appellant, DVA, and OPM in front of us, considering that individuals, 
veterans' groups, Luevano class members, unions, minority advocacy 
groups, and other government agencies, have a large stake in the 
outcome.

Order

    The initial decision's findings on the merits may or may not 
survive review, and in any event, OPM and DVA make strong arguments 
that the remedy ordered in the initial decision exceeds the Board's 
authority. Accordingly, we VACATE the initial decision, without 
deciding the propriety of the remedy ordered below. We will revisit the 
issue of the appropriate remedy if, after further briefing, we conclude 
that DVA violated the appellant's veterans' preference rights.
    The record is reopened for presentation of supplemental argument 
and evidence on the following related questions: (1) Was the execution 
of the Luevano consent decree a valid exercise of delegated executive 
authority for necessary exceptions of positions from the competitive 
service or necessary exceptions from the provisions of sections 2951, 
3304(a), 3321, 7202, and 7203 of Title 5, United States Code; (2) what 
rules govern the use of the Outstanding Scholar appointing method, both 
in general, and when, as in this case, a qualified individual with 
veterans' preference applies for a competitive-service position; (3) 
when a qualified individual with veterans' preference applies for a 
competitive-service position, is the appointing authority limited to 
filling the position through competitive examination or non-competitive 
appointment of a preference-eligible, or are there other means by which 
an appointing authority may fill the position, and if so, what are the 
other means; (4) does an agency with delegated examining authority have 
the discretion to issue multiple certificates of unranked candidates, 
grouped according to specific hiring authorities or criteria, for 
consideration by a selecting official; and (5) if the agency can issue 
multiple certificates based on specific criteria, and a candidate meets 
the criteria for inclusion on more than one such certificate, does the 
agency have the discretion to exclude a candidate from a certificate 
for which she meets the criteria? For example, in this case it appears 
that the agency excluded the 30% disabled veterans from the VEOA 
certificate despite the fact that each of these veterans was eligible 
to compete pursuant to the VEOA. See supra, para.3. The supplemental 
argument addressing question (1)-(3) should focus on the matters 
discussed in Paras.  17-19 of this opinion, although the parties are 
not limited to those matters.
    Within 30 days of the date of this order, OPM and DVA shall submit 
(individually or jointly) legal argument on the questions posed above. 
OPM and DVA shall also submit (individually or jointly) copies of the 
full Luevano consent decree and DVA's merit promotion plan. In 
addition, DVA shall submit, no later than 15 days from the date OPM 
files its response to this order, supplemental evidence and argument 
showing that the appointments it made under the Outstanding Scholar 
program met the requirements of that program as explained in OPM's 
response.
    The appellant may reply within 30 days of the date of service of 
OPM's and DVA's legal argument and evidence. (If OPM and DVA do not 
make service on the same date, the appellant's response is due no later 
than 30 days from the later date of service.) The appellant may 
supplement her reply, no later than 15 days from the date DVA files its 
supplemental evidence and argument, with regard to whether the 
Outstanding Scholar appointees met the terms of that program.
    The Clerk is directed to cause this decision to be printed in the 
Federal Register, and to advise any interested party that it may submit 
an amicus brief on the questions posed above, within 30 days of the 
date of publication. The notice shall instruct amici to file two copies 
of their briefs with the Clerk of the Board, and shall include 
instructions for service of briefs on DVA and OPM. The Clerk will serve 
copies of amicus briefs on the appellant.
    DVA, OPM, and the appellant may respond to any amicus briefs filed 
within 20 days from the latest date an amicus brief is served, but in 
any case no later than 60 days from the date of

[[Page 27701]]

publication of the notice in the Federal Register.

DATES: All briefs in response to this notice shall be filed with the 
Clerk of the Board within 30 days of May 18, 2001.

ADDRESSES: All briefs submitted must include the case name and docket 
number noted above (Cassandra Augustine v. Department of Veterans 
Affairs, docket number SF-3443-00-0085-I-1) and be entitled ``Amicus 
Brief,'' and should be submitted in duplicate. Briefs should be filed 
with the Office of the Clerk, Merit Systems Protection Board, 1615 M 
Street, NW., Washington, DC 20419. A copy of any amicus brief that is 
submitted must also be served on Patricia Geffner, Department of 
Veterans Affairs, (344/02), Office of Regional Counsel, 11000 Wilshire 
Boulevard, Los Angeles, CA 90024, and Rafael Morell, Office of 
Personnel Management, Office of General Counsel, 1900 E Street, NW., 
Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Shannon McCarthy, Deputy Clerk of the 
Board, or Matthew Shannon, Counsel to the Clerk (202) 653-7200.

    Dated: May 15, 2001.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 01-12627 Filed 5-17-01; 8:45 am]
BILLING CODE 7400-01-P