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Home
        Prohibited Personnel Practices
        Frequently Asked Questions
          1- Non-Discrimination
          2 - Proper Considerations
          3 - Coercing  Political Activity
          4 -  Obstructing the Right to Compete for Employment
          5 - Influencing  Withdrawal from Competition
          6 - Granting  Any Preference or Advantage Not Authorized by Law
          7 - Nepotism
          8 - Whistleblower Protection
          9 - Protection Against Retaliation
          10 - Conduct Not Adversely Affecting Performance
          11 - Violating Veterans' Preference
          12 - Violating Merit System Principles
          13 - Nondisclosure Forms, Policies & Agreements
          14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 11: Violating Veterans' Preference
	
	
	
  Prohibited Personnel Practice of the Month
 
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
      (A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement;1or
(B) Knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference  requirement;2***Where  is this Prohibited Personnel Practice (PPP) found in the law?***
    This  11th PPP is set forth in subsection 2302(b)(11) of Title  5 of the United States Code.  It was  added to subsection 2302(b) by the Veterans Employment Opportunities Act of  1998 (VEOA), Public Law  105-339,  §6.  The VEOA permits individuals who  believe their veterans’ preference rights have been violated to appeal to the  Merit Systems Protection Board (MSPB or Board) after review by the Department  of Labor (DOL) has not resulted in corrective action.  For a discussion of the Board’s jurisdiction  in VEOA cases, see *Willingham v. Department  of the Navy,* 118 M.S.P.R. 21 (2012).
 
***What  is the purpose of 5 U.S.C. § 2302(b)(11)?***
  The  VEOA strengthened and broadened the applicability of veterans’ preference, Government-wide,  in order to improve redress for preference eligibles.  S. Rep. No. 105-340, at 14-18 (1998).
  Subsection  2302(b)(11) reinforces the Government’s commitment to protecting and preserving  the rights of veterans by making it a PPP to knowingly violate certain  veterans’ preference laws, rules, and regulations.  During the March 24, 1998 Senate hearing on  VEOA, Senator Chuck Hagel, a principal sponsor of the legislation, stated that  adding 2302(b)(11) to the list of PPPs would put “teeth” into the veterans’  preference statute.
  Further  information about veterans’ preference rights can be found on the Office of  Personnel Management’s website at https://www.opm.gov/policy-data-oversight/veterans-services/vet-guide-for-hr-professionals/ and DOL’s  website at https://www.dol.gov/agencies/vets.
  ***What  is MSPB’s jurisdiction to review an alleged violation of 5 U.S.C. §  2302(b)(11)?***
    As  with most PPPs, an alleged violation of section 2302(b)(11) alone is not a  basis for MSPB appellate jurisdiction.   Such a violation can be raised before MSPB only as  an affirmative defense in a matter over which the MSPB otherwise has appellate  jurisdiction.  *See Davis v. Department of  Defense,* 105 M.S.P.R. 604 (2007).
  ***Does 2302(b)(11)  cover all "veterans’ preference requirements"?***
  
  No.  As indicated in footnote 1, it includes only  those requirements that are specified in 2302(e)(1).  For example, 5 U.S.C. § 3304 (competitive examinations)  is a statutory provision that is not specified in 2302(e)(1).  Therefore, neither this statute nor its implementing  regulations at 5 C.F.R.  Part 337 (examining system) may form the basis for a claim that 2302(b)(11) has been  violated.  *Ramsey v. Office of Personnel Management,*87 M.S.P.R. 98 (2000).***Does a statute’s  exclusion from 2302(e)(1) preclude a VEOA claim based on that statute?***  No.  These are two separate provisions of  law.  Commission of a PPP under  2302(b)(11) is not necessary for a viable claim under VEOA.  For example, an individual who believes that  he or she was denied the right to compete for a vacancy under 5 U.S.C.  § 3304(f) may pursue a claim under VEOA without alleging that the agency  knowing violated one of statutes listed at 2302(e)(1).  *See,  e.g., Walker v. Department of the Army,*104 M.S.P.R. 96 (2006) (failure  to allow competition of veterans’ preference candidate under 5 U.S.C.  § 3304(f) violated VEOA despite 3304’s exclusion from 2302(e)(1)).
  ***May MSPB order  corrective action based on a violation of 2302(b)(11)?***
  No.  Interestingly, along with 2302(b)(11), VEOA  also added subsection 2302(e)(2), which states that:
  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).
  Therefore,  unlike other PPPs, the Board may not order corrective action under  2302(b)(11).  Legislative history does  not specifically address why Congress enacted subsection 2302(e)(2).  However, MSPB does have authority under VEOA  and the Uniformed Services Employment and Reemployment Rights Act of 1994  (codified at 38 U.S.C.  §§ 4301-4333)  (USERRA) to order relief where agencies have violated various veterans’ rights.  Therefore additional authority to do so under  2302(b)(11) might have been viewed as unnecessary or confusing.  The Board’s authority to order a VEOA remedy  based upon a violation of 2302(b)(11) remains an open question.  *See  Villamarzo,*92 M.S.P.R. at 164 n. 2.
  ***May MSPB bring  action against an employee who violates 2302(b)(11)?***
  No.  However, as with other PPPs, the Office of  Special Counsel (OSC), under 5 U.S.C.  § 1215(a)(1),  may bring a disciplinary action against an employee for consideration by the  Board.  Disciplinary action can include  reprimand, reduction-in-grade, suspension, removal, debarment from Federal  employment for up to 5 years, and a civil penalty not to exceed $1,000.  5 U.S.C. §1215(a)(3).
  ***Is  an inadvertent violation of veterans’ preference laws, rules, or regulations a  PPP under 2302(b)(11)?***
    There  is no case law on this question at present.  The  key is the interpretation of “knowingly.”   The language of the statute could be read to mean that “knowingly” refers to taking, recommending,  or approving, or failing to take, recommend, or approve a tainted personnel  action, whether or not the offending employee actually knew about veterans’  preference laws, rules, and regulations.  *Cf. Special  Counsel v. Ware,* 114 M.S.P.R. 128,  ¶ 27  (2010) (OSC need not demonstrate an employee acted knowingly in disregard of work-place  political activity prohibitions to warrant removal).
However,  the legislative history of 2302(b)(11) could be read to suggest that the use of  the word “knowingly” in the subsection  means that the PPP would be established only if a person were found to have  knowingly “fail[ed] to comply with veterans’ preference requirements.”  S. Rep. No. 105-340, at 17 (1998).
  We must await future case law to know the answer to  this question.
 1
    For the purpose  of 5  U.S.C. § 2302, 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    eligible referred to  in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.  
(B) Section 943(c)(2) and 1784(c) of title 10.  
(C) Section 1308(b) of Alaska National Interest Lands Conservation  Act.
(D)  Section 301(c) of the Foreign Service Act of  1980.  
(E)  Section 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 purpose 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.25  U.S.C. § 2302(e)(1).  *See Villamarzo v. Environmental Protection Agency,*92 M.S.P.R. 159  (2002).
  Those who have “veterans’  preference” include veterans, spouses, widows, or mothers who meet the  definition of “preference eligible” in 5  U.S.C. 2108.  Preference eligibles are  entitled to have 5 or 10 points added to their earned score on a civil service  examination (see 5  U.S.C. 3309).  They are also accorded a  higher retention standing in the event of a reduction in force (see 5  U.S.C. 3502).  Preference does not  apply, however, to in-service placement actions such as promotions.  5 C.F.R. § 211.102(c).  *See Lynch  v. Office of Personnel Management,*115 M.S.P.R. 480 (2011).


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