Union Calendar No. 347

104TH CONGRESS

2D SESSION H. R. 3586

[Report No. 104–675]

A BILL

To amend title 5, United States Code, to strengthposes. opportunities for veterans, and for other pur- en veterans’ preference, to increase employment

JULY 12, 1996

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 347

104TH CONGRESS

2D SESSION H. R. 3586

[Report No. 104–675]

To amend title 5, United States Code, to strengthen veterans’ preference,

to increase employment opportunities for veterans, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 5, 1996

Mr. MICA introduced the following bill; which was referred to the Committee

on Government Reform and Oversight

JULY 12, 1996

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

JULY 12, 1996

Additional sponsors: Mr. BURTON of Indiana, Mr. HERGER, Mr. SOLOMON,

Mr. STUMP, and Mr. WATTS of Oklahoma

[For text of introduced bill, see copy of bill as introduced on June 5, 1996]

A BILL

To amend title 5, United States Code, to strengthen veterans’ preference, to increase employment opportunities for

veterans, 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,
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1 SECTION 1. SHORT TITLE.

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

3 Opportunities Act of 1996’’.

4 SEC. 2. EQUAL ACCESS FOR VETERANS.

5 (a) COMPETITIVE SERVICE.—Section 3304 of title 5,

6 United States Code, is amended by adding at the end the

7 following:

8 ‘‘(f)(1) No preference eligible, and no individual (other

9 than a preference eligible) who has been separated from the

10 armed forces under honorable conditions after 3 or more

11 years of active service, shall be denied the opportunity to

12 compete for an announced vacant position within an agen13 cy, in the competitive service or the excepted service, by rea14 son of—

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

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

17 ‘‘(2) Nothing in this subsection shall prevent an agency

18 from filling a vacant position (whether by appointment or

19 otherwise) solely from individuals on a priority placement

20 list consisting of individuals who have been separated from

21 the agency due to a reduction in force and surplus employ22 ees (as defined under regulations prescribed by the Office).’’.

23 (b) CIVIL SERVICE EMPLOYMENT INFORMATION.—

24 (1) VACANT POSITIONS.—Section 3327(b) of title

25 5, United States Code, is amended by striking ‘‘and’’

26 at the end of paragraph (1), by redesignating para-
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1 graph (2) as paragraph (3), and by inserting after

2 paragraph (1) the following:

3 ‘‘(2) each vacant position in the agency for

4 which competition is restricted to individuals having

5 competitive status or employees of such agency, ex6 cluding any position under paragraph (1), and’’.

7 (2) ADDITIONAL INFORMATION.—Section 3327 of

8 title 5, United States Code, is amended by adding at

9 the end the following:

10 ‘‘(c) Any notification provided under this section shall,

11 for all positions under subsection (b)(1) as to which section

12 3304(f) applies and for all positions under subsection

13 (b)(2), include a notation as to the applicability of section

14 3304(f) with respect thereto.

15 ‘‘(d) In consultation with the Secretary of Labor, the

16 Office shall submit to Congress and the President, no less

17 frequently than every 2 years, a report detailing, with re18 spect to the period covered by such report—

19 ‘‘(1) the number of positions listed under this

20 section during such period;

21 ‘‘(2) the number of preference eligibles and other

22 individuals described in section 3304(f)(1) referred to

23 such positions during such period; and
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1 ‘‘(3) the number of preference eligibles and other

2 individuals described in section 3304(f)(1) appointed

3 to such positions during such period.’’.

4 (c) GOVERNMENTWIDE LISTS.—

5 (1) VACANT POSITIONS.—Section 3330(b) of title

6 5, United States Code, is amended to read as follows:

7 ‘‘(b) The Office of Personnel Management shall cause

8 to be established and kept current—

9 ‘‘(1) a comprehensive list of all announcements

10 of vacant positions (in the competitive service and the

11 excepted service, respectively) within each agency that

12 are to be filled by appointment for more than 1 year

13 and for which applications are being or will soon be

14 accepted from outside the agency’s work force; and

15 ‘‘(2) a comprehensive list of all announcements

16 of vacant positions within each agency for which ap17 plications are being or will soon be accepted and for

18 which competition is restricted to individuals having

19 competitive status or employees of such agency, ex20 cluding any position required to be listed under para21 graph (1).’’.

22 (2) ADDITIONAL INFORMATION.—Section 3330(c)

23 of title 5, United States Code, is amended by striking

24 ‘‘and’’ at the end of paragraph (2), by redesignating
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1 paragraph (3) as paragraph (4), and by inserting

2 after paragraph (2) the following:

3 ‘‘(3) for all positions under subsection (b)(1) as

4 to which section 3304(f) applies and for all positions

5 under subsection (b)(2), a notation as to the applica6 bility of section 3304(f) with respect thereto; and’’.

7 (3) CONFORMING AMENDMENT.—Section 3330(d)

8 of title 5, United States Code, is amended by striking

9 ‘‘The list’’ and inserting ‘‘Each list under subsection

10 (b)’’.

11 SEC. 3. SPECIAL PROTECTIONS FOR PREFERENCE ELIGI12 BLES IN REDUCTIONS IN FORCE.

13 Section 3502 of title 5, United States Code, as amend14 ed by section 1034 of the National Defense Authorization

15 Act for Fiscal Year 1996 (Public Law 104–106; 110 Stat.

16 430), is amended by adding at the end the following:

17 ‘‘(g)(1) A position occupied by a preference eligible

18 shall not be placed in a single-position competitive level if

19 the preference eligible is qualified to perform the essential

20 functions of any other position at the same grade (or occu21 pational level) in the competitive area. In such cases, the

22 preference eligible shall be entitled to be placed in another

23 competitive level for which such preference eligible is quali24 fied. If the preference eligible is qualified for more than one
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1 competitive level, such preference eligible shall be placed in

2 the competitive level containing the most positions.

3 ‘‘(2) For purposes of paragraph (1)—

4 ‘‘(A) a preference eligible shall be considered

5 qualified to perform the essential functions of a posi6 tion if, by reason of experience, training, or education

7 (and, in the case of a disabled veteran, with reason8 able accommodation), a reasonable person could con9 clude that the preference eligible would be able to per10 form those functions successfully within a period of

11 150 days; and

12 ‘‘(B) a preference eligible shall not be considered

13 unqualified solely because such preference eligible does

14 not meet the minimum qualification requirements re15 lating to previous experience in a specified grade (or

16 occupational level), if any, that are established for

17 such position by the Office of Personnel Management

18 or the agency.

19 ‘‘(h) In connection with any reduction in force, a pref20 erence eligible whose current or most recent performance

21 rating is at least fully successful (or the equivalent) shall

22 have, in addition to such assignment rights as are pre23 scribed by regulation, the right, in lieu of separation, to

24 be assigned to any position within the agency conducting

25 the reduction in force—
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1 ‘‘(1) for which such preference eligible is quali2 fied under subsection (g)(2)—

3 ‘‘(A) that is within the preference eligible’s

4 commuting area and at the same grade (or occu5 pational level) as the position from which the

6 preference eligible was released, and that is then

7 occupied by an individual, other than another

8 preference eligible, who was placed in such posi9 tion (whether by appointment or otherwise)

10 within 6 months before the reduction in force if,

11 within 12 months prior to the date on which

12 such individual was so placed in such position,

13 such individual had been employed in the same

14 competitive area as the preference eligible; or

15 ‘‘(B) that is within the preference eligible’s

16 competitive area and that is then occupied by an

17 individual, other than another preference eligible,

18 who was placed in such position (whether by ap19 pointment or otherwise) within 6 months before

20 the reduction in force; or

21 ‘‘(2) for which such preference eligible is quali22 fied that is within the preference eligible’s competitive

23 area and that is not more than 3 grades (or pay lev24 els) below that of the position from which the pref25 erence eligible was released, except that, in the case of
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1 a preference eligible with a compensable service-con2 nected disability of 30 percent or more, this para3 graph shall be applied by substituting ‘5 grades’ for

4 ‘3 grades’.

5 In the event that a preference eligible is entitled to assign6 ment to more than 1 position under this subsection, the

7 agency shall assign the preference eligible to any such posi8 tion requiring no reduction (or, if there is no such position,

9 the least reduction) in basic pay. A position shall not, with

10 respect to a preference eligible, be considered to satisfy the

11 requirements of paragraph (1) or (2), as applicable, if it

12 does not last for at least 12 months following the date on

13 which such preference eligible is assigned to such position

14 under this subsection.

15 ‘‘(i) A preference eligible may challenge the classifica16 tion of any position to which the preference eligible asserts

17 assignment rights (as provided by, or prescribed by regula18 tions described in, subsection (h)) in an action before the

19 Merit Systems Protection Board.

20 ‘‘(j)(1) As soon as practicable, but not later than 120

21 days, after the date of the enactment of this subsection, each

22 agency shall establish an agencywide priority placement

23 program to facilitate employment placement for preference

24 eligibles who—
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1 ‘‘(A) are scheduled to be separated from service

2 due to a reduction in force; or

3 ‘‘(B) are separated from service due to a reduc4 tion in force.

5 ‘‘(2) Each agencywide priority placement program

6 shall include provisions under which a vacant position shall

7 not be filled by the appointment or transfer of any individ8 ual from outside of that agency (other than a former em9 ployee previously separated from that agency due to a re10 duction in force) or by any promotion, reassignment, or

11 other personnel action involving any individual from with12 in that agency (other than a preference eligible or, as de13 fined under regulations prescribed by the Office, a surplus

14 employee) if—

15 ‘‘(A) there is then available any individual de16 scribed in paragraph (3) who is qualified for the posi17 tion; and

18 ‘‘(B) the position—

19 ‘‘(i) is at the same grade (or pay level) or

20 not more than 2 grades (or pay levels) below that

21 of the position last held by such individual before

22 placement in the new position; and

23 ‘‘(ii) is within the same commuting area as

24 the individual’s residence or last-held position.
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1 ‘‘(3) For purposes of an agencywide priority place2 ment program under this subsection, an individual shall

3 be considered to be described in this paragraph if such indi4 vidual’s most recent performance rating was at least fully

5 successful (or the equivalent), and such individual is ei6 ther—

7 ‘‘(A) a preference eligible of such agency who is

8 scheduled to be separated, as described in paragraph

9 (1)(A); or

10 ‘‘(B) a preference eligible who became a former

11 employee of such agency as a result of a separation,

12 as described in paragraph (1)(B).

13 ‘‘(4) A preference eligible shall cease to be eligible to

14 participate in a program under this subsection upon the

15 earlier of—

16 ‘‘(A) the end of the 24-month period beginning

17 on the date on which the preference eligible first be18 comes eligible to participate under paragraph (3); or

19 ‘‘(B) the date on which the individual accepts or

20 declines a bona fide offer (or, if the individual does

21 not act on the offer, the last day for accepting such

22 offer) from the affected agency of a position described

23 in paragraph (2)(B).’’.
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1 SEC. 4. IMPROVED REDRESS FOR VETERANS.

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. Administrative redress

6 ‘‘(a)(1) Any preference eligible or other individual de7 scribed in section 3304(f)(1) who alleges that an agency has

8 violated such individual’s rights under any statute or regu9 lation relating to veterans’ preference, or any right afforded

10 such individual by section 3304(f), may file a complaint

11 with the Secretary of Labor.

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

13 within 60 days after the date of the alleged violation, and

14 the Secretary shall process such complaint in accordance

15 with sections 4322 (a) through (e)(1) and 4326 of title 38.

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

17 the complaint within 60 days after the date on which it

18 is filed, the complainant may elect to appeal the alleged

19 violation to the Merit Systems Protection Board in accord20 ance with such procedures as the Merit Systems Protection

21 Board shall prescribe, except that in no event may any such

22 appeal be brought—

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

24 the complaint is filed under subsection (a); or
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1 ‘‘(B) later than 15 days after the date on which

2 the complainant receives notification from the Sec3 retary of Labor under section 4322(e)(1) of title 38.

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

5 brought unless—

6 ‘‘(A) the complainant first provides written noti7 fication to the Secretary of Labor of such complain8 ant’s intention to bring such appeal; and

9 ‘‘(B) appropriate evidence of compliance with

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

11 manner as the Merit Systems Protection Board may

12 prescribe) with the notice of appeal under this sub13 section.

14 ‘‘(3) Upon receiving notification under paragraph

15 (2)(A), the Secretary of Labor shall not continue to inves16 tigate or further attempt to resolve the complaint to which

17 such notification relates.

18 ‘‘(c) This section shall not be construed to prohibit a

19 preference eligible from appealing directly to the Merit Sys20 tems Protection Board from any action which is appealable

21 to the Board under any other law, rule, or regulation, in

22 lieu of administrative redress under this section.

23 ‘‘§ 3330b. Judicial redress

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

25 procedure provided under section 3330a(b), a preference eli-
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1 gible or other individual described in section 3304(f)(1)

2 may elect, in accordance with this section, to terminate

3 those administrative proceedings and file an action with

4 the appropriate United States district court not later than

5 60 days after the date of the election.

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

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

8 the appeal is filed with the Merit Systems Protection

9 Board under section 3330a(b); 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 election

16 shall be effective as of the date on which it is received, and

17 the administrative proceeding to which it relates shall ter18 minate immediately upon the receipt of such election.

19 ‘‘§ 3330c. 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 court

24 (as the case may be) shall order the agency to comply with

25 such provisions and award compensation for any loss of
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1 wages or benefits suffered by the individual by reason of

2 the violation involved. If the Board or court determines that

3 such violation was willful, it shall award an amount equal

4 to backpay as liquidated damages.

5 ‘‘(b) A preference eligible or other individual described

6 in section 3304(f)(1) who prevails in an action under sec7 tion 3330a or 3330b shall be awarded reasonable attorney

8 fees, expert witness fees, and other litigation expenses.’’.

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

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

11 is amended by adding after the item relating to section 3330

12 the following:

‘‘3330a. Administrative redress.

‘‘3330b. Judicial redress.

‘‘3330c. Remedy.’’.

13 SEC. 5. 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 Investigation

20 and Drug Enforcement Administration Senior Executive

21 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 fol3 lowing:

4 ‘‘§ 115. Veterans’ preference

5 ‘‘(a) Subject to subsection (b), appointments under sec6 tions 105, 106, and 107 shall be made in accordance with

7 section 2108, and sections 3309 through 3312, of title 5.

8 ‘‘(b) Subsection (a) shall not apply to any appoint9 ment to a position the rate of basic pay for which is at

10 least equal to the minimum rate established for positions

11 in the Senior Executive Service under section 5382 of title

12 5 and the duties of which are comparable to those described

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

14 if, with respect to such position, the President makes certifi15 cation—

16 ‘‘(1) that such position is—

17 ‘‘(A) a confidential or policy-making posi18 tion; or

19 ‘‘(B) a position for which political affili20 ation or political philosophy is otherwise an im21 portant qualification; and

22 ‘‘(2) that any individual selected for such posi23 tion is expected to vacate the position at or before the

24 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 in

3 paragraph (2) applies shall be notified as to such expecta4 tion, 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 fol9 lowing:

‘‘115. Veterans’ preference.’’.

10 (c) LEGISLATIVE BRANCH APPOINTMENTS.—

11 (1) IN GENERAL.—Subject to paragraph (3), ap12 pointments to positions in the legislative branch of

13 the Government shall be made in accordance with sec14 tion 2108, and sections 3309 through 3312, of title 5,

15 United States Code.

16 (2) REDUCTIONS IN FORCE.—Subject to para17 graph (3), reductions in force in the legislative branch

18 of the Government shall provide preference eligibles

19 with protections substantially similar to those pro20 vided under subchapter I of chapter 35 of title 5,

21 United States Code.

22 (3) EXCLUSIONS.—Paragraphs (1) and (2) shall

23 not apply to—

24 (A) an appointment made by the President

25 with the advice and consent of the Senate;
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1 (B) an appointment made by a Member of

2 Congress or by a committee or subcommittee of

3 either House of Congress; or

4 (C) an appointment to a position, the du5 ties of which are equivalent to those of a Senior

6 Executive Service position (within the meaning

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

8 Code).

9 (4) REDRESS PROCEDURES.—The Board of Di10 rectors of the Office of Compliance (established by sec11 tion 301 of the Congressional Accountability Act of

12 1995) shall prescribe regulations, as soon as prac13 ticable after the date of the enactment of this Act, to

14 provide preference eligibles in the legislative branch of

15 the Government with administrative and judicial re16 dress procedures for alleged violations of any rights

17 provided by this subsection. Such procedures shall be

18 substantially similar to the procedures established by

19 the amendments made by section 4. The regulations

20 shall provide that the General Counsel of the Office of

21 Compliance (appointed under section 302(c) of the

22 Congressional Accountability Act of 1995) shall per23 form the functions assigned to the Secretary of Labor

24 under sections 4322 and 4326(a) of title 38, United

25 States Code.
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1 (d) JUDICIAL BRANCH APPOINTMENTS.—

2 (1) IN GENERAL.—Subject to paragraph (2), ap3 pointments to positions in the judicial branch of the

4 Government shall be made in accordance with section

5 2108, and sections 3309 through 3312, of title 5,

6 United States Code.

7 (2) REDUCTIONS IN FORCE.—Subject to para8 graph (2), reductions in force in the judicial branch

9 of the Government shall provide preference eligibles

10 with protections substantially similar to those pro11 vided under subchapter I of chapter 35 of title 5,

12 United States Code.

13 (3) EXCLUSIONS.—Paragraphs (1) and (2) shall

14 not apply to—

15 (A) an appointment made by the President,

16 with the advice and consent of the Senate;

17 (B) an appointment as a judicial officer;

18 (C) an appointment as a law clerk or sec19 retary to a justice or judge of the United States;

20 or

21 (D) an appointment to a position, the du22 ties of which are equivalent to those of a Senior

23 Executive Service position (within the meaning

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

25 Code).
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1 (4) REDRESS PROCEDURES.—The Judicial Con2 ference of the United States shall prescribe regulations

3 under which redress procedures (substantially similar

4 to the procedures established by the amendments made

5 by section 4) shall be available for alleged violations

6 of any rights provided by this subsection.

7 (5) DEFINITIONS.—For purposes of this sub8 section—

9 (A) the term ‘‘judicial officer’’ means a jus10 tice, judge, or magistrate judge listed in subpara11 graph (A), (B), (F), or (G) of section 376(a)(1)

12 of title 28, United States Code; and

13 (B) the term ‘‘justice or judge of the United

14 States’’ has the meaning given such term by sec15 tion 451 of such title 28.

16 SEC. 6. VETERANS’ PREFERENCE REQUIRED FOR REDUC17 TIONS IN FORCE IN THE FEDERAL AVIATION

18 ADMINISTRATION.

19 Section 347(b) of the Department of Transportation

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

21 460) is amended by striking ‘‘and’’ at the end of paragraph

22 (6), by striking the period at the end of paragraph (7) and

23 inserting ‘‘; and’’, and by adding at the end the following:

24 ‘‘(8) sections 3501–3504, as such sections relate

25 to veterans’ preference.’’.