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 strength-
en veterans’ preference, to increase employment
opportunities for veterans, and for other pur-
poses.
JULY 12, 1996
Reported with an amendment, committed to the Commit-
tee of the Whole House on the State of the Union, and
ordered to be printed
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 veter-
ans’ preference, to increase employment opportunities for
veterans, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Veterans Employment
Opportunities Act of 1996’’.
SEC. 2. EQUAL ACCESS FOR VETERANS.
(a) COMPETITIVE SERVICE.—Section 3304 of title 5,
United States Code, is amended by adding at the end the
following:
‘‘(f)(1) No preference eligible, and no individual (other
than a preference eligible) who has been separated from the
armed forces under honorable conditions after 3 or more
years of active service, shall be denied the opportunity to
compete for an announced vacant position within an agen-
cy, in the competitive service or the excepted service, by rea-
son of—
‘‘(A) not having acquired competitive status; or
‘‘(B) not being an employee of such agency.
‘‘(2) Nothing in this subsection shall prevent an agency
from filling a vacant position (whether by appointment or
otherwise) solely from individuals on a priority placement
list consisting of individuals who have been separated from
the agency due to a reduction in force and surplus employ-
ees (as defined under regulations prescribed by the Office).’’.
(b) CIVIL SERVICE EMPLOYMENT INFORMATION.—
(1) VACANT POSITIONS.—Section 3327(b) of title
5, United States Code, is amended by striking ‘‘and’’
at the end of paragraph (1), by redesignating para-
graph (2) as paragraph (3), and by inserting after
paragraph (1) the following:
‘‘(2) each vacant position in the agency for
which competition is restricted to individuals having
competitive status or employees of such agency, ex-
cluding any position under paragraph (1), and’’.
(2) ADDITIONAL INFORMATION.—Section 3327 of
title 5, United States Code, is amended by adding at
the end the following:
‘‘(c) Any notification provided under this section shall,
for all positions under subsection (b)(1) as to which section
3304(f) applies and for all positions under subsection
(b)(2), include a notation as to the applicability of section
3304(f) with respect thereto.
‘‘(d) In consultation with the Secretary of Labor, the
Office shall submit to Congress and the President, no less
frequently than every 2 years, a report detailing, with re-
spect to the period covered by such report—
‘‘(1) the number of positions listed under this
section during such period;
‘‘(2) the number of preference eligibles and other
individuals described in section 3304(f)(1) referred to
such positions during such period; and
‘‘(3) the number of preference eligibles and other
individuals described in section 3304(f)(1) appointed
to such positions during such period.’’.
(c) GOVERNMENTWIDE LISTS.—
(1) VACANT POSITIONS.—Section 3330(b) of title
5, United States Code, is amended to read as follows:
‘‘(b) The Office of Personnel Management shall cause
to be established and kept current—
‘‘(1) a comprehensive list of all announcements
of vacant positions (in the competitive service and the
excepted service, respectively) within each agency that
are to be filled by appointment for more than 1 year
and for which applications are being or will soon be
accepted from outside the agency’s work force; and
‘‘(2) a comprehensive list of all announcements
of vacant positions within each agency for which ap-
plications are being or will soon be accepted and for
which competition is restricted to individuals having
competitive status or employees of such agency, ex-
cluding any position required to be listed under para-
graph (1).’’.
(2) ADDITIONAL INFORMATION.—Section 3330(c)
of title 5, United States Code, is amended by striking
‘‘and’’ at the end of paragraph (2), by redesignating
paragraph (3) as paragraph (4), and by inserting
after paragraph (2) the following:
‘‘(3) for all positions under subsection (b)(1) as
to which section 3304(f) applies and for all positions
under subsection (b)(2), a notation as to the applica-
bility of section 3304(f) with respect thereto; and’’.
(3) CONFORMING AMENDMENT.—Section 3330(d)
of title 5, United States Code, is amended by striking
‘‘The list’’ and inserting ‘‘Each list under subsection
(b)’’.
SEC. 3. SPECIAL PROTECTIONS FOR PREFERENCE ELIGI-
BLES IN REDUCTIONS IN FORCE.
Section 3502 of title 5, United States Code, as amend-
ed by section 1034 of the National Defense Authorization
Act for Fiscal Year 1996 (Public Law 104–106; 110 Stat.
430), is amended by adding at the end the following:
‘‘(g)(1) A position occupied by a preference eligible
shall not be placed in a single-position competitive level if
the preference eligible is qualified to perform the essential
functions of any other position at the same grade (or occu-
pational level) in the competitive area. In such cases, the
preference eligible shall be entitled to be placed in another
competitive level for which such preference eligible is quali-
fied. If the preference eligible is qualified for more than one
competitive level, such preference eligible shall be placed in
the competitive level containing the most positions.
‘‘(2) For purposes of paragraph (1)—
‘‘(A) a preference eligible shall be considered
qualified to perform the essential functions of a posi-
tion if, by reason of experience, training, or education
(and, in the case of a disabled veteran, with reason-
able accommodation), a reasonable person could con-
clude that the preference eligible would be able to per-
form those functions successfully within a period of
150 days; and
‘‘(B) a preference eligible shall not be considered
unqualified solely because such preference eligible does
not meet the minimum qualification requirements re-
lating to previous experience in a specified grade (or
occupational level), if any, that are established for
such position by the Office of Personnel Management
or the agency.
‘‘(h) In connection with any reduction in force, a pref-
erence eligible whose current or most recent performance
rating is at least fully successful (or the equivalent) shall
have, in addition to such assignment rights as are pre-
scribed by regulation, the right, in lieu of separation, to
be assigned to any position within the agency conducting
the reduction in force—
‘‘(1) for which such preference eligible is quali-
fied under subsection (g)(2)—
‘‘(A) that is within the preference eligible’s
commuting area and at the same grade (or occu-
pational level) as the position from which the
preference eligible was released, and that is then
occupied by an individual, other than another
preference eligible, who was placed in such posi-
tion (whether by appointment or otherwise)
within 6 months before the reduction in force if,
within 12 months prior to the date on which
such individual was so placed in such position,
such individual had been employed in the same
competitive area as the preference eligible; or
‘‘(B) that is within the preference eligible’s
competitive area and that is then occupied by an
individual, other than another preference eligible,
who was placed in such position (whether by ap-
pointment or otherwise) within 6 months before
the reduction in force; or
‘‘(2) for which such preference eligible is quali-
fied that is within the preference eligible’s competitive
area and that is not more than 3 grades (or pay lev-
els) below that of the position from which the pref-
erence eligible was released, except that, in the case of
a preference eligible with a compensable service-con-
nected disability of 30 percent or more, this para-
graph shall be applied by substituting ‘5 grades’ for
‘3 grades’.
In the event that a preference eligible is entitled to assign-
ment to more than 1 position under this subsection, the
agency shall assign the preference eligible to any such posi-
tion requiring no reduction (or, if there is no such position,
the least reduction) in basic pay. A position shall not, with
respect to a preference eligible, be considered to satisfy the
requirements of paragraph (1) or (2), as applicable, if it
does not last for at least 12 months following the date on
which such preference eligible is assigned to such position
under this subsection.
‘‘(i) A preference eligible may challenge the classifica-
tion of any position to which the preference eligible asserts
assignment rights (as provided by, or prescribed by regula-
tions described in, subsection (h)) in an action before the
Merit Systems Protection Board.
‘‘(j)(1) As soon as practicable, but not later than 120
days, after the date of the enactment of this subsection, each
agency shall establish an agencywide priority placement
program to facilitate employment placement for preference
eligibles who—
‘‘(A) are scheduled to be separated from service
due to a reduction in force; or
‘‘(B) are separated from service due to a reduc-
tion in force.
‘‘(2) Each agencywide priority placement program
shall include provisions under which a vacant position shall
not be filled by the appointment or transfer of any individ-
ual from outside of that agency (other than a former em-
ployee previously separated from that agency due to a re-
duction in force) or by any promotion, reassignment, or
other personnel action involving any individual from with-
in that agency (other than a preference eligible or, as de-
fined under regulations prescribed by the Office, a surplus
employee) if—
‘‘(A) there is then available any individual de-
scribed in paragraph (3) who is qualified for the posi-
tion; and
‘‘(B) the position—
‘‘(i) is at the same grade (or pay level) or
not more than 2 grades (or pay levels) below that
of the position last held by such individual before
placement in the new position; and
‘‘(ii) is within the same commuting area as
the individual’s residence or last-held position.
‘‘(3) For purposes of an agencywide priority place-
ment program under this subsection, an individual shall
be considered to be described in this paragraph if such indi-
vidual’s most recent performance rating was at least fully
successful (or the equivalent), and such individual is ei-
ther—
‘‘(A) a preference eligible of such agency who is
scheduled to be separated, as described in paragraph
(1)(A); or
‘‘(B) a preference eligible who became a former
employee of such agency as a result of a separation,
as described in paragraph (1)(B).
‘‘(4) A preference eligible shall cease to be eligible to
participate in a program under this subsection upon the
earlier of—
‘‘(A) the end of the 24-month period beginning
on the date on which the preference eligible first be-
comes eligible to participate under paragraph (3); or
‘‘(B) the date on which the individual accepts or
declines a bona fide offer (or, if the individual does
not act on the offer, the last day for accepting such
offer) from the affected agency of a position described
in paragraph (2)(B).’’.
SEC. 4. IMPROVED REDRESS FOR VETERANS.
(a) IN GENERAL.—Subchapter I of chapter 33 of title
5, United States Code, is amended by adding at the end
the following:
‘‘§ 3330a. Administrative redress
‘‘(a)(1) Any preference eligible or other individual de-
scribed in section 3304(f)(1) who alleges that an agency has
violated such individual’s rights under any statute or regu-
lation relating to veterans’ preference, or any right afforded
such individual by section 3304(f), may file a complaint
with the Secretary of Labor.
‘‘(2) A complaint under this subsection must be filed
within 60 days after the date of the alleged violation, and
the Secretary shall process such complaint in accordance
with sections 4322 (a) through (e)(1) and 4326 of title 38.
‘‘(b)(1) If the Secretary of Labor is unable to resolve
the complaint within 60 days after the date on which it
is filed, the complainant may elect to appeal the alleged
violation to the Merit Systems Protection Board in accord-
ance with such procedures as the Merit Systems Protection
Board shall prescribe, except that in no event may any such
appeal be brought—
‘‘(A) before the 61st day after the date on which
the complaint is filed under subsection (a); or
‘‘(B) later than 15 days after the date on which
the complainant receives notification from the Sec-
retary of Labor under section 4322(e)(1) of title 38.
‘‘(2) An appeal under this subsection may not be
brought unless—
‘‘(A) the complainant first provides written noti-
fication to the Secretary of Labor of such complain-
ant’s intention to bring such appeal; and
‘‘(B) appropriate evidence of compliance with
subparagraph (A) is included (in such form and
manner as the Merit Systems Protection Board may
prescribe) with the notice of appeal under this sub-
section.
‘‘(3) Upon receiving notification under paragraph
(2)(A), the Secretary of Labor shall not continue to inves-
tigate or further attempt to resolve the complaint to which
such notification relates.
‘‘(c) This section shall not be construed to prohibit a
preference eligible from appealing directly to the Merit Sys-
tems Protection Board from any action which is appealable
to the Board under any other law, rule, or regulation, in
lieu of administrative redress under this section.
‘‘§ 3330b. Judicial redress
‘‘(a) In lieu of continuing the administrative redress
procedure provided under section 3330a(b), a preference eli-
gible or other individual described in section 3304(f)(1)
may elect, in accordance with this section, to terminate
those administrative proceedings and file an action with
the appropriate United States district court not later than
60 days after the date of the election.
‘‘(b) An election under this section may not be made—
‘‘(1) before the 121st day after the date on which
the appeal is filed with the Merit Systems Protection
Board under section 3330a(b); or
‘‘(2) after the Merit Systems Protection Board
has issued a judicially reviewable decision on the
merits of the appeal.
‘‘(c) An election under this section shall be made, in
writing, in such form and manner as the Merit Systems
Protection Board shall by regulation prescribe. The election
shall be effective as of the date on which it is received, and
the administrative proceeding to which it relates shall ter-
minate immediately upon the receipt of such election.
‘‘§ 3330c. Remedy
‘‘(a) If the Merit Systems Protection Board (in a pro-
ceeding under section 3330a) or a court (in a proceeding
under section 3330b) determines that an agency has vio-
lated a right described in section 3330a, the Board or court
(as the case may be) shall order the agency to comply with
such provisions and award compensation for any loss of
wages or benefits suffered by the individual by reason of
the violation involved. If the Board or court determines that
such violation was willful, it shall award an amount equal
to backpay as liquidated damages.
‘‘(b) A preference eligible or other individual described
in section 3304(f)(1) who prevails in an action under sec-
tion 3330a or 3330b shall be awarded reasonable attorney
fees, expert witness fees, and other litigation expenses.’’.
(b) CLERICAL AMENDMENT.—The table of sections at
the beginning of chapter 33 of title 5, United States Code,
is amended by adding after the item relating to section 3330
the following:
‘‘3330a. Administrative redress.
‘‘3330b. Judicial redress.
‘‘3330c. Remedy.’’.
SEC. 5. EXTENSION OF VETERANS’ PREFERENCE.
(a) AMENDMENT
TO
TITLE
5, UNITED
STATES
CODE.—Paragraph (3) of section 2108 of title 5, United
States Code, is amended by striking ‘‘the Federal Bureau
of Investigation and Drug Enforcement Administration
Senior Executive Service, or the General Accounting Of-
fice;’’ and inserting ‘‘or the Federal Bureau of Investigation
and Drug Enforcement Administration Senior Executive
Service;’’.
(b) AMENDMENTS
TO TITLE 3, UNITED STATES
CODE.—
(1) IN GENERAL.—Chapter 2 of title 3, United
States Code, is amended by adding at the end the fol-
lowing:
‘‘§ 115. Veterans’ preference
‘‘(a) Subject to subsection (b), appointments under sec-
tions 105, 106, and 107 shall be made in accordance with
section 2108, and sections 3309 through 3312, of title 5.
‘‘(b) Subsection (a) shall not apply to any appoint-
ment to a position the rate of basic pay for which is at
least equal to the minimum rate established for positions
in the Senior Executive Service under section 5382 of title
5 and the duties of which are comparable to those described
in section 3132(a)(2) of such title or to any other position
if, with respect to such position, the President makes certifi-
cation—
‘‘(1) that such position is—
‘‘(A) a confidential or policy-making posi-
tion; or
‘‘(B) a position for which political affili-
ation or political philosophy is otherwise an im-
portant qualification; and
‘‘(2) that any individual selected for such posi-
tion is expected to vacate the position at or before the
end of the President’s term (or terms) of office.
Each individual appointed to a position described in the
preceding sentence as to which the expectation described in
paragraph (2) applies shall be notified as to such expecta-
tion, in writing, at the time of appointment to such posi-
tion.’’.
(2) CLERICAL AMENDMENT.—The table of sec-
tions at the beginning of chapter 2 of title 3, United
States Code, is amended by adding at the end the fol-
lowing:
‘‘115. Veterans’ preference.’’.
(c) LEGISLATIVE BRANCH APPOINTMENTS.—
(1) IN GENERAL.—Subject to paragraph (3), ap-
pointments to positions in the legislative branch of
the Government shall be made in accordance with sec-
tion 2108, and sections 3309 through 3312, of title 5,
United States Code.
(2) REDUCTIONS IN FORCE.—Subject to para-
graph (3), reductions in force in the legislative branch
of the Government shall provide preference eligibles
with protections substantially similar to those pro-
vided under subchapter I of chapter 35 of title 5,
United States Code.
(3) EXCLUSIONS.—Paragraphs (1) and (2) shall
not apply to—
(A) an appointment made by the President
with the advice and consent of the Senate;
(B) an appointment made by a Member of
Congress or by a committee or subcommittee of
either House of Congress; or
(C) an appointment to a position, the du-
ties of which are equivalent to those of a Senior
Executive Service position (within the meaning
of section 3132(a)(2) of title 5, United States
Code).
(4) REDRESS PROCEDURES.—The Board of Di-
rectors of the Office of Compliance (established by sec-
tion 301 of the Congressional Accountability Act of
1995) shall prescribe regulations, as soon as prac-
ticable after the date of the enactment of this Act, to
provide preference eligibles in the legislative branch of
the Government with administrative and judicial re-
dress procedures for alleged violations of any rights
provided by this subsection. Such procedures shall be
substantially similar to the procedures established by
the amendments made by section 4. The regulations
shall provide that the General Counsel of the Office of
Compliance (appointed under section 302(c) of the
Congressional Accountability Act of 1995) shall per-
form the functions assigned to the Secretary of Labor
under sections 4322 and 4326(a) of title 38, United
States Code.
(d) JUDICIAL BRANCH APPOINTMENTS.—
(1) IN GENERAL.—Subject to paragraph (2), ap-
pointments to positions in the judicial branch of the
Government shall be made in accordance with section
2108, and sections 3309 through 3312, of title 5,
United States Code.
(2) REDUCTIONS IN FORCE.—Subject to para-
graph (2), reductions in force in the judicial branch
of the Government shall provide preference eligibles
with protections substantially similar to those pro-
vided under subchapter I of chapter 35 of title 5,
United States Code.
(3) EXCLUSIONS.—Paragraphs (1) and (2) shall
not apply to—
(A) an appointment made by the President,
with the advice and consent of the Senate;
(B) an appointment as a judicial officer;
(C) an appointment as a law clerk or sec-
retary to a justice or judge of the United States;
or
(D) an appointment to a position, the du-
ties of which are equivalent to those of a Senior
Executive Service position (within the meaning
of section 3132(a)(2) of title 5, United States
Code).