IIA

104TH CONGRESS

2D SESSION H. R. 3586

IN THE SENATE OF THE UNITED STATES

JULY 31, 1996

Received; read twice and referred to the Committee on Veterans’ Affairs

AN ACT

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

9 (other than a preference eligible) who has been separated

10 from the armed forces under honorable conditions after

11 3 or more years of active service, shall be denied the op12 portunity to compete for an announced vacant position

13 within an agency, in the competitive service or the ex14 cepted service, by reason 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 agen18 cy from filling a vacant position (whether by appointment

19 or otherwise) solely from individuals on a priority place20 ment list consisting of individuals who have been sepa21 rated from the agency due to a reduction in force and sur22 plus employees (as defined under regulations prescribed

23 by the Office).’’.

24 (b) CIVIL SERVICE EMPLOYMENT INFORMATION.—

25 (1) VACANT POSITIONS.—Section 3327(b) of

26 title 5, United States Code, is amended by striking
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1 ‘‘and’’ at the end of paragraph (1), by redesignating

2 paragraph (2) as paragraph (3), and by inserting

3 after paragraph (1) the following:

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

5 which competition is restricted to individuals having

6 competitive status or employees of such agency, ex7 cluding any position under paragraph (1), and’’.

8 (2) ADDITIONAL INFORMATION.—Section 3327

9 of title 5, United States Code, is amended by adding

10 at the end the following:

11 ‘‘(c) Any notification provided under this section

12 shall, for all positions under subsection (b)(1) as to which

13 section 3304(f) applies and for all positions under sub14 section (b)(2), include a notation as to the applicability

15 of section 3304(f) with respect thereto.

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

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

18 frequently than every 2 years, a report detailing, with re19 spect to the period covered by such report—

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

21 section during such period;

22 ‘‘(2) the number of preference eligibles and

23 other individuals described in section 3304(f)(1) re24 ferred to such positions during such period; and
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1 ‘‘(3) the number of preference eligibles and

2 other individuals described in section 3304(f)(1) ap3 pointed to such positions during such period.’’.

4 (c) GOVERNMENTWIDE LISTS.—

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

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

7 follows:

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

9 to be established and kept current—

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

11 of vacant positions (in the competitive service and

12 the excepted service, respectively) within each agency

13 that are to be filled by appointment for more than

14 1 year and for which applications are being or will

15 soon be accepted from outside the agency’s work

16 force; and

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

18 of vacant positions within each agency for which ap19 plications are being or will soon be accepted and for

20 which competition is restricted to individuals having

21 competitive status or employees of such agency, ex22 cluding any position required to be listed under

23 paragraph (1).’’.

24 (2) ADDITIONAL INFORMATION.—Section

25 3330(c) of title 5, United States Code, is amended
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1 by striking ‘‘and’’ at the end of paragraph (2), by

2 redesignating paragraph (3) as paragraph (4), and

3 by inserting after paragraph (2) the following:

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

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

6 under subsection (b)(2), a notation as to the applica7 bility of section 3304(f) with respect thereto; and’’.

8 (3) CONFORMING AMENDMENT.—Section

9 3330(d) of title 5, United States Code, is amended

10 by striking ‘‘The list’’ and inserting ‘‘Each list

11 under subsection (b)’’.

12 SEC. 3. SPECIAL PROTECTIONS FOR PREFERENCE ELIGI13 BLES IN REDUCTIONS IN FORCE.

14 Section 3502 of title 5, United States Code, as

15 amended by section 1034 of the National Defense Author16 ization Act for Fiscal Year 1996 (Public Law 104–106;

17 110 Stat. 430), is amended by adding at the end the fol18 lowing:

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

20 shall not be placed in a single-position competitive level

21 if the preference eligible is qualified to perform the essen22 tial functions of any other position at the same grade (or

23 occupational level) in the competitive area. In such cases,

24 the preference eligible shall be entitled to be placed in an25 other competitive level for which such preference eligible
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1 is qualified. If the preference eligible is qualified for more

2 than one competitive level, such preference eligible shall

3 be placed in the competitive level containing the most posi4 tions.

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

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

7 qualified to perform the essential functions of a posi8 tion if, by reason of experience, training, or edu9 cation (and, in the case of a disabled veteran, with

10 reasonable accommodation), a reasonable person

11 could conclude that the preference eligible would be

12 able to perform those functions successfully within a

13 period of 150 days; and

14 ‘‘(B) a preference eligible shall not be consid15 ered unqualified solely because such preference eligi16 ble does not meet the minimum qualification require17 ments relating to previous experience in a specified

18 grade (or occupational level), if any, that are estab19 lished for such position by the Office of Personnel

20 Management or the agency.

21 ‘‘(h) In connection with any reduction in force, a

22 preference eligible whose current or most recent perform23 ance rating is at least fully successful (or the equivalent)

24 shall have, in addition to such assignment rights as are

25 prescribed by regulation, the right, in lieu of separation,
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1 to be assigned to any position within the agency conduct2 ing the reduction in force—

3 ‘‘(1) for which such preference eligible is quali4 fied under subsection (g)(2)—

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

6 commuting area and at the same grade (or oc7 cupational level) as the position from which the

8 preference eligible was released, and that is

9 then occupied by an individual, other than an10 other preference eligible, who was placed in

11 such position (whether by appointment or oth12 erwise) within 6 months before the reduction in

13 force if, within 12 months prior to the date on

14 which such individual was so placed in such po15 sition, such individual had been employed in the

16 same competitive area as the preference eligible;

17 or

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

19 competitive area and that is then occupied by

20 an individual, other than another preference eli21 gible, who was placed in such position (whether

22 by appointment or otherwise) within 6 months

23 before the reduction in force; or

24 ‘‘(2) for which such preference eligible is quali25 fied that is within the preference eligible’s competi-
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1 tive area and that is not more than 3 grades (or pay

2 levels) below that of the position from which the

3 preference eligible was released, except that, in the

4 case of a preference eligible with a compensable

5 service-connected disability of 30 percent or more,

6 this paragraph shall be applied by substituting ‘5

7 grades’ for ‘3 grades’.

8 In the event that a preference eligible is entitled to assign9 ment to more than 1 position under this subsection, the

10 agency shall assign the preference eligible to any such po11 sition requiring no reduction (or, if there is no such posi12 tion, the least reduction) in basic pay. A position shall not,

13 with respect to a preference eligible, be considered to sat14 isfy the requirements of paragraph (1) or (2), as applica15 ble, if it does not last for at least 12 months following

16 the date on which such preference eligible is assigned to

17 such position under this subsection.

18 ‘‘(i) A preference eligible may challenge the classifica19 tion of any position to which the preference eligible asserts

20 assignment rights (as provided by, or prescribed by regula21 tions described in, subsection (h)) in an action before the

22 Merit Systems Protection Board.

23 ‘‘(j)(1) Not later than 3 months after the date of the

24 enactment of this subsection, each Executive agency shall
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1 establish an agencywide priority placement program to fa2 cilitate employment placement for employees who—

3 ‘‘(A)(i) are scheduled to be separated from serv4 ice due to a reduction in force under—

5 ‘‘(I) regulations prescribed under this sec6 tion; or

7 ‘‘(II) procedures established under section

8 3595; or

9 ‘‘(ii) are separated from service due to such a

10 reduction in force; and

11 ‘‘(B)(i) have received a rating of at least fully

12 successful (or the equivalent) as the last perform13 ance rating of record used for retention purposes; or

14 ‘‘(ii) occupy positions excluded from a perform15 ance appraisal system by law, regulation, or admin16 istrative action taken by the Office of Personnel

17 Management.

18 ‘‘(2)(A) Each agencywide priority placement program

19 under this subsection shall include provisions under which

20 a vacant position shall not (except as provided in this

21 paragraph or any other statute providing the right of re22 employment to any individual) be filled by the appoint23 ment or transfer of any individual from outside of that

24 agency (other than an individual described in subpara25 graph (B)) if—
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1 ‘‘(i) there is then available any individual de2 scribed in subparagraph (B) who is qualified for the

3 position; and

4 ‘‘(ii) the position—

5 ‘‘(I) is at the same grade or pay level (or

6 the equivalent) or not more than 3 grades (or

7 grade intervals) below that of the position last

8 held by such individual before placement in the

9 new position;

10 ‘‘(II) is within the same commuting area

11 as the individual’s last-held position (as referred

12 to in subclause (I)) or residence; and

13 ‘‘(III) has the same type of work schedule

14 (whether full-time, part-time, or intermittent)

15 as the position last held by the individual.

16 ‘‘(B) For purposes of an agencywide priority place17 ment program, an individual shall be considered to be de18 scribed in this subparagraph if such individual—

19 ‘‘(i)(I) is an employee of such agency who is

20 scheduled to be separated, as described in paragraph

21 (1)(A)(i); or

22 ‘‘(II) is an individual who became a former em23 ployee of such agency as a result of a separation, as

24 described in paragraph (1)(A)(ii), excluding any in-
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1 dividual who separated voluntarily under subsection

2 (f); and

3 ‘‘(ii) satisfies clause (i) or (ii) of paragraph

4 (1)(B).

5 ‘‘(3)(A) If after a reduction in force the agency has

6 no positions of any type within the local commuting areas

7 specified in this subsection, the individual may designate

8 a different local commuting area where the agency has

9 continuing positions in order to exercise reemployment

10 rights under this subsection. An agency may determine

11 that such designations are not in the interest of the Gov12 ernment for the purpose of paying relocation expenses

13 under subchapter II of chapter 57.

14 ‘‘(B) At its option, an agency may administratively

15 extend reemployment rights under this subsection to in16 clude other local commuting areas.

17 ‘‘(4)(A) In selecting employees for positions under

18 this subsection, the agency shall place qualified present

19 and former employees in retention order by veterans’ pref20 erence subgroup and tenure group.

21 ‘‘(B) An agency may not pass over a qualified present

22 or former employee to select an individual in a lower veter23 ans’ preference subgroup within the tenure group, or in

24 a lower tenure group.
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1 ‘‘(C) Within a subgroup, the agency may select a

2 qualified present or former employee without regard to the

3 individual’s total creditable service.

4 ‘‘(5) An individual is eligible for reemployment prior5 ity under this subsection for 2 years from the effective

6 date of the reduction in force from which the individual

7 will be, or has been, separated under this section or section

8 3595, as the case may be.

9 ‘‘(6) An individual loses eligibility for reemployment

10 priority under this subsection when the individual—

11 ‘‘(A) requests removal in writing;

12 ‘‘(B) accepts or declines a bona fide offer under

13 this subsection or fails to accept such an offer within

14 the period of time allowed for such acceptance, or

15 ‘‘(C) separates from the agency before being

16 separated under this section or section 3595, as the

17 case may be.

18 A present or former employee who declines a position with

19 a representative rate (or equivalent) that is less than the

20 rate of the position from which the individual was sepa21 rated under this section retains eligibility for positions

22 with a higher representative rate up to the rate of the indi23 vidual’s last position.

24 ‘‘(7) Whenever more than one individual is qualified

25 for a position under this subsection, the agency shall select
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1 the most highly qualified individual, subject to paragraph

2 (4).

3 ‘‘(8) The Office of Personnel Management shall issue

4 regulations to implement this subsection.’’.

5 SEC. 4. IMPROVED REDRESS FOR VETERANS.

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

7 5, United States Code, is amended by adding at the end

8 the following:

9 ‘‘§ 3330a. Administrative redress

10 ‘‘(a)(1) Any preference eligible or other individual de11 scribed in section 3304(f)(1) who alleges that an agency

12 has violated such individual’s rights under any statute or

13 regulation relating to veterans’ preference, or any right

14 afforded such individual by section 3304(f), may file a

15 complaint with the Secretary of Labor.

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

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

18 the Secretary shall process such complaint in accordance

19 with sections 4322 (a) through (e)(1) and 4326 of title

20 38.

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

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

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

24 violation to the Merit Systems Protection Board in accord25 ance with such procedures as the Merit Systems Protec-
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1 tion Board shall prescribe, except that in no event may

2 any such appeal be brought—

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

4 which the complaint is filed under subsection (a); or

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

6 the complainant receives notification from the Sec7 retary of Labor under section 4322(e)(1) of title 38.

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

9 brought unless—

10 ‘‘(A) the complainant first provides written no11 tification to the Secretary of Labor of such com12 plainant’s intention to bring such appeal; and

13 ‘‘(B) appropriate evidence of compliance with

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

15 manner as the Merit Systems Protection Board may

16 prescribe) with the notice of appeal under this sub17 section.

18 ‘‘(3) Upon receiving notification under paragraph

19 (2)(A), the Secretary of Labor shall not continue to inves20 tigate or further attempt to resolve the complaint to which

21 such notification relates.

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

23 a preference eligible from appealing directly to the Merit

24 Systems Protection Board from any action which is ap-
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1 pealable to the Board under any other law, rule, or regula2 tion, in lieu of administrative redress under this section.

3 ‘‘§ 3330b. Judicial redress

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

5 procedure provided under section 3330a(b), a preference

6 eligible or other individual described in section 3304(f)(1)

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

8 those administrative proceedings and file an action with

9 the appropriate United States district court not later than

10 60 days after the date of the election.

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

12 made—

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

14 which the appeal is filed with the Merit Systems

15 Protection Board under section 3330a(b); or

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

17 has issued a judicially reviewable decision on the

18 merits of the appeal.

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

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

21 Protection Board shall by regulation prescribe. The elec22 tion shall be effective as of the date on which it is received,

23 and the administrative proceeding to which it relates shall

24 terminate immediately upon the receipt of such election.
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1 ‘‘§ 3330c. Remedy

2 ‘‘(a) If the Merit Systems Protection Board (in a pro3 ceeding under section 3330a) or a court (in a proceeding

4 under section 3330b) determines that an agency has vio5 lated a right described in section 3330a, the Board or

6 court (as the case may be) shall order the agency to com7 ply with such provisions and award compensation for any

8 loss of wages or benefits suffered by the individual by rea9 son of the violation involved. If the Board or court deter10 mines that such violation was willful, it shall award an

11 amount equal to backpay as liquidated damages.

12 ‘‘(b) A preference eligible or other individual de13 scribed in section 3304(f)(1) who prevails in an action

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

15 attorney fees, expert witness fees, and other litigation ex16 penses.’’.

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

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

19 Code, is amended by adding after the item relating to sec20 tion 3330 the following:

‘‘3330a. Administrative redress.

‘‘3330b. Judicial redress.

‘‘3330c. Remedy.’’.

21 SEC. 5. EXTENSION OF VETERANS’ PREFERENCE.

22 (a) AMENDMENT TO TITLE 5, UNITED STATES

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

24 States Code, is amended by striking ‘‘the Federal Bureau
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1 of Investigation and Drug Enforcement Administration

2 Senior Executive Service, or the General Accounting Of3 fice;’’ and inserting ‘‘or the Federal Bureau of Investiga4 tion and Drug Enforcement Administration Senior Execu5 tive Service;’’.

6 (b) AMENDMENTS TO TITLE 3, UNITED STATES

7 CODE.—

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

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

10 following:

11 ‘‘§ 115. Veterans’ preference

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

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

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

15 title 5.

16 ‘‘(b) Subsection (a) shall not apply to any appoint17 ment to a position the rate of basic pay for which is at

18 least equal to the minimum rate established for positions

19 in the Senior Executive Service under section 5382 of title

20 5 and the duties of which are comparable to those de21 scribed in section 3132(a)(2) of such title or to any other

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

23 makes certification—

24 ‘‘(1) that such position is—
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1 ‘‘(A) a confidential or policy-making posi2 tion; or

3 ‘‘(B) a position for which political affili4 ation or political philosophy is otherwise an im5 portant qualification; and

6 ‘‘(2) that any individual selected for such posi7 tion is expected to vacate the position at or before

8 the end of the President’s term (or terms) of office.

9 Each individual appointed to a position described in the

10 preceding sentence as to which the expectation described

11 in paragraph (2) applies shall be notified as to such expec12 tation, in writing, at the time of appointment to such posi13 tion.’’.

14 (2) CLERICAL AMENDMENT.—The table of sec15 tions at the beginning of chapter 2 of title 3, United

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

17 following:

‘‘115. Veterans’ preference.’’.

18 (c) LEGISLATIVE BRANCH APPOINTMENTS.—

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

20 subsection, the terms ‘‘employing office’’, ‘‘covered

21 employee’’, and ‘‘Board’’ shall each have the mean22 ing given such term by section 101 of the Congres23 sional Accountability Act of 1995 (2 U.S.C. 1301).

24 (2) RIGHTS AND PROTECTIONS.—The rights

25 and protections established under section 2108, sec-
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1 tions 3309 through 3312, and subchapter I of chap2 ter 35, of title 5, United States Code, shall apply to

3 covered employees.

4 (3) REMEDIES.—

5 (A) IN GENERAL.—The remedy for a viola6 tion of paragraph (2) shall be such remedy as

7 would be appropriate if awarded under applica8 ble provisions of title 5, United States Code, in

9 the case of a violation of the relevant cor10 responding provision (referred to in paragraph

11 (2)) of such title.

12 (B) PROCEDURE.—The procedure for con13 sideration of alleged violations of paragraph (2)

14 shall be the same as apply under section 401 of

15 the Congressional Accountability Act of 1995

16 (and the provisions of law referred to therein)

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

18 title II of such Act

19 (4) REGULATIONS TO IMPLEMENT SUB20 SECTION.—

21 (A) IN GENERAL.—The Board shall, pur22 suant to section 304 of the Congressional Ac23 countability Act of 1995 (2 U.S.C. 1384), issue

24 regulations to implement this subsection.
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1 (B) AGENCY REGULATIONS.—The regula2 tions issued under subparagraph (A) shall be

3 the same as the most relevant substantive regu4 lations (applicable with respect to the executive

5 branch) promulgated to implement the statu6 tory provisions referred to in paragraph (2) ex7 cept insofar as the Board may determine, for

8 good cause shown and stated together with the

9 regulation, that a modification of such regula10 tions would be more effective for the implemen11 tation of the rights and protections under this

12 subsection.

13 (C) COORDINATION.—The regulations is14 sued under subparagraph (A) shall be consist15 ent with section 225 of the Congressional Ac16 countability Act of 1995 (2 U.S.C. 1361).

17 (5) APPLICABILITY.—Notwithstanding any

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

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

20 include an employee—

21 (A) whose appointment is made by the

22 President with the advice and consent of the

23 Senate;
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1 (B) whose appointment is made by a Mem2 ber of Congress or by a committee or sub3 committee of either House of Congress; or

4 (C) who is appointed 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 (6) EFFECTIVE DATE.—Paragraphs (2) and (3)

10 shall be effective as of the effective date of the regu11 lations under paragraph (4).

12 (d) JUDICIAL BRANCH APPOINTMENTS.—

13 (1) IN GENERAL.—Subject to paragraph (2),

14 appointments to positions in the judicial branch of

15 the Government shall be made in accordance with

16 section 2108, and sections 3309 through 3312, of

17 title 5, United States Code.

18 (2) REDUCTIONS IN FORCE.—Subject to para19 graph (2), reductions in force in the judicial branch

20 of the Government shall provide preference eligibles

21 with protections substantially similar to those pro22 vided under subchapter I of chapter 35 of title 5,

23 United States Code.

24 (3) EXCLUSIONS.—Paragraphs (1) and (2)

25 shall not apply to—
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1 (A) an appointment made by the Presi2 dent, with the advice and consent of the Senate;

3 (B) an appointment as a judicial officer;

4 (C) an appointment as a law clerk or sec5 retary to a justice or judge of the United

6 States; or

7 (D) an appointment to a position, the du8 ties of which are equivalent to those of a Senior

9 Executive Service position (within the meaning

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

11 Code).

12 (4) REDRESS PROCEDURES.—The Judicial Con13 ference of the United States shall prescribe regula14 tions under which redress procedures (substantially

15 similar to the procedures established by the amend16 ments made by section 4) shall be available for al17 leged violations of any rights provided by this sub18 section.

19 (5) DEFINITIONS.—For purposes of this sub20 section—

21 (A) the term ‘‘judicial officer’’ means a

22 justice, judge, or magistrate judge listed in sub23 paragraph (A), (B), (F), or (G) of section

24 376(a)(1) of title 28, United States Code; and
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1 (B) the term ‘‘justice or judge of the Unit2 ed States’’ has the meaning given such term by

3 section 451 of such title 28.

4 SEC. 6. VETERANS’ PREFERENCE REQUIRED FOR REDUC5 TIONS IN FORCE IN THE FEDERAL AVIATION

6 ADMINISTRATION.

7 Section 347(b) of the Department of Transportation

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

9 460) is amended by striking ‘‘and’’ at the end of para10 graph (6), by striking the period at the end of paragraph

11 (7) and inserting ‘‘; and’’, and by adding at the end the

12 following:

13 ‘‘(8) sections 3501–3504, as such sections re14 late to veterans’ preference.’’.

15 SEC. 7. DEFINITIONAL AMENDMENT.

16 Subparagraph (A) of section 2108(1) of title 5, Unit17 ed States Code, is amended by inserting ‘‘during a mili18 tary operation in a qualified hazardous duty area (within

19 the meaning of the first 2 sentences of section 1(b) of

20 Public Law 104–117) and in accordance with require21 ments that may be prescribed in regulations of the Sec22 retary of Defense,’’ after ‘‘for which a campaign badge

23 has been authorized,’’.

Passed the House of Representatives July 30, 1996.

Attest: ROBIN H. CARLE,

Clerk.