Fed Government Continues Sparring with Veterans in MSPB

The federal government continues to fumble with veteran’s preference matters, even as it attempts to employ more veterans returning from tours in Iraq and Afghanistan. With a new law streamlining the process that provides veterans with preference in the federal hiring process, it remains to be seen how many more veterans will be working for the federal government or appealing personnel actions that violate their rights.

According to the Merit System Protection Board’s latest annual report, MSPB regional and local field offices decisions on Veterans Employment Opportunity Act cases rose by 1 percent to 215 in the 2011 fiscal year, compared to the previous fiscal year. It would not be surprising to see the number of VEOA complaints continue to rise in the near future, owing partly to the incompetence of federal agencies.

VEOA cases primarily deal with veteran’s preference issues, such as awards of five to 10 extra “preference points” on civil service examination scores, depending on when the veterans served and their disability status. Other preferences include exemptions from minimum education level requirements for federal positions and the special consideration of all valuable experience (i.e. service, welfare, religious, civic, and organizational activities) in regard to experience level requirements, according to the MSPB.

Last fall, President Barack Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011. The VOW Act featured a bevy of initiatives aimed at spurring the hiring of veterans in the public or private sectors. One of the act’s provisions enabled service members to initiate the process of obtaining veteran’s preference status before they undergo separation.

The VOW Act builds on the administration’s efforts to grow the ranks of veterans in the federal civil service, particularly through the creation of the Council of Veterans in 2009 under Executive Order 13518. This initiative helped drive the 47,172 Executive Branch new veteran hires that the Office of Personnel Management reported for the first three quarters of the 2011 fiscal year.

Even though the federal government has gotten better at hiring veterans, recent MSPB and U.S. Federal Circuit Court of Appeals decisions suggest its understanding of their VEOA rights still needs improvement. For example, in the case of Lazaro v. Dep’t of Veterans Affairs (2012), a preference-eligible veteran claimed that the Department of Veterans Affairs failed to grant him special consideration for an IT specialist position with a required minimum experience level. The VA argued that the MSPB had no right to second guess its determination that the applicant was not qualified, and the Board denied the veteran relief under VEOA.

The Federal Circuit, however, found that there was no record of the agency taking into consideration the veteran’s “other valuable experience,” as required by VEOA. The Federal Circuit rejected the VA’s claim that its qualification determinations are outside the jurisdiction of the MSPB. Under the VA’s reasoning, “a veteran could never assert a claim within the jurisdiction of the Board,” the Court said. “There is simply no way to analyze whether a veteran’s preference rights were violated without examining the grounds upon which the veteran’s non-selection was predicated.” The Federal Circuit vacated the MSPB’s decision and remanded the case.

Another case showing how agencies will trample VEOA rights is Russell v. Dep’t of Health and Human Services (2011), in which the Department of Health and Human Services denied a service-disabled veteran his full 10 preference points simply because he used the wrong fax cover letter when sending supporting documentation to the agency. DHHS only granted him five preference points and selected a higher-scoring, non-veteran for the position. Had the veteran received the extra five points for his disabled status, he would have received the highest score.

The Board slammed DHHS, saying that “the agency deprived the appellant of his full 10-point preference because of what is at most a minor technical mistake, even though the information the agency had should have alerted it that he might be eligible for the preference.” The Board reversed an administrative judge’s decision and ordered the agency to reconstruct the hiring process and grant the veteran his 10 preference points.

Clearly, mistakes are being made in the application of veteran’s preferences in the federal hiring process. With more veterans returning to the civilian work force and applying for federal jobs, more mistakes are bound to happen. Veterans who believe they were wrongly passed over for a federal position should immediately consult a federal employment law attorney.

© 2016 Mathew B. Tully, Esq.. All rights reserved. This article may not be reproduced without express written consent from Mathew B. Tully, Esq..

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at mtully@fedattorney.com. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.

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  1. CaptBuck says:

    VA managers are known, more than otheds, for announcing and rescinding job announcements multiple time until the person they’ve already chosen for the job is the most “qualified”. This happens throughout all agencies and needs to be stopped.

  2. Jmmgj5 says:

    When the military went from a draft to a volunteer army in the early 70’s all veterans preference items or laws where supposed to have been voided as the military increased the pay and other benefits along with a much better G I bill, better retirement in order to get soldiers to volunteer for the services. So according to the law doing away with the draft there is no such thing as veterans prefence now. The bad thing is that after everything was signed off on, someone renigned and did not elimate the prefence part.

  3. Peter Werp says:

    “…such as awards of five to 10 extra “preference points” on civil service examination scores, depending on when the veterans served and their disability status. “
    I’ve always wondered how the above works when typically there are no examinations now. So, it seems this preference is not very usable?

  4. Danl_P says:

    The DHHS action was not a mistake. HHS has a policy of avoiding hiring veterans when ever and however possible. It was bad under the Bush administration and has become criminally worse under Sibelius. HHS/OCR directors have discussed openly methods to avoid hiring veterans.

  5. maxie5000 says:

    I think the HR field needs to be looked at.  There seems to be a rash of non qualified veterans in all fed agencies (regardless of experience), but for some reason why there seems to be an awful lot of unqualified managers and supervisors and their families/spouses/significant others in positions that THEY are not qualified for.

  6. freakydeaky says:

    There are always ways around hiring a vet (especially “friends” preference) by just posting a job for current employees. I like how the non-vet employees whine about “veterans” preference – the vets sense of entitlement – but it’s fine for the agencies to use “friends” preference – there’s no sense of entitlement there! NOT!

  7. msgrowan says:

    There appear to be a couple problems with some statements in the article.  It refers to “… exemptions from minimum education level requirements for federal positions and the special consideration of all valuable experience (i.e. service, welfare, religious, civic, and organizational activities) in regard to experience level requirements” for preference eligibles.  The only “exemption” for preference eligibles in the qualifications area involves the possible waiver of physical qualifications (see 5 USC 3312).  To qualify for professional and scientific positions normally involves meeting a requirement for possession of completed academic work in a relevant field, as this is the principal means of acquiring the professional knowledge necessary to function in such a position.  To exempt preference eligibles from having to meet such an expectation would make no sense, as they could not perform successfully without such. Regarding the point about crediting “all valauble experience” gained by preference eligibles, this is indeed so stated in 5 USC 3311, but OPM has for decades, going back to its pre-1978 CSRA days when it was the U.S. Civil Service Commission, long extended the same expectation that agencies will consider all sources of potentially qualifying experience for ALL competing applicants regardless of their possession of preference or not.  The cited Obama executive order is credited – for no explained reason – with “having help drive” the 47,000 plus veteran hires in the first three quarters of FY 2011.  In fact, the strong emphasis on hiring veterans has been a key initiative of many successive adminstrations, as anyone who has done any cursory research on the Federal veterans employment program would know.  To imply that the recent Obama executive order was anything other than a continuation of a long-standing policy is mistaken.  A little more rigor is called for in preparing such articles.

    • cd says:

      Good job msgrowan. I was looking for someone to add some sanity to this discussion. The author also appears to be behind the times in other areas, such as category rating requirement.

      • FedHRXpert says:

        Actually, category rating requirement is an old rating scheme used way before the 1978 CSRA. Msgrowan is correct though that all of the current federal HR policies announced by the current administration are but just continuations of old federal HR policies, programs under different names. Ironically, OPM could have been Obama’s legacy had the right person with the right technical KSAs and experience in federal HR bee brought in to help Berry lead, upgrade and modernize federal personnel programs within 60 to 90 days. Instead, lacking this technical leadership OPM has languished and has become a political liability and a national embarrassment. 

    • $15300432 says:

      and you know that they wouldn’t be successful because??

      • msgrowan says:

        Well, maybe you might be wiling to fly on an airplane inspected by a FAA aeronautical engineer without a degree in that field who was hired due to his being a veterans prefererence eligible, but I’d have my own reservations on that score.

        • $15300432 says:

          An FAA inspector??? Really they don’t fix planes never have, they don’t inspect repairs their only function is to insure that the paperwork is filled out on 1 out of 1000 planes. The vast majority of repairs are being done overseas and that way companies don’t have to fool with folks that have never walked the walk

          • Msgrowan says:

            You’re misinformed.  FAA’s Aviation Safety (AVS) is tasked with administering the aircraft certification program and indeed has long been involved in aircraft inspection (NOT repair) activity.

          • $15300432 says:

            The paperwork ONLY nothing more

    • Moretothestory says:

      Actually there are three instances in which veteran preference eligibles are exempt from qualification requirements which precede the 1978 CSRA.  Despite being highly-qualified and eligible for noncompetitive appointments, less than 10% of ALL 5500 to 6000 disabled veteran hires rated  30% or more are being hired noncompetitively. Bottom  line, despite being highly-qualified and noncompetitive appointment eligible HR offices are requiring 90% of ALL compensably disabled veteran hires to undergo the entire documentation-riddled, labor and time consuming federal hiring process.  Think about how much time, effort and resources could be saved if HR offices began using noncompetitive hiring authorities to hire highly qualified 30% or more disabled veterans which also significantly reduce the federal hiring process. For these reasons, HR hiring practices warrant review by the GAO as to why HR’s continued systemic failure to utilize noncompetitive hiring authorities such as this making the hiring process much more costly and extended than it needs to be for highly qualified veterans to get a federal job. 

  8. Project Manager says:

    Excuse me, but this who premise of the “highest score” gets the position is a load of BULL.  The scoring is a mechanism used by HR to screen & score applicants resumes.  From there, they add 5 or 10 more points for veterans.  From the point totals, they select the top 3-5-7 candidates and forward those candidates to the interview panel in the OpDiv/branch who has the vacancy.  Only these folks are capable of assessing true technical competency.  Like a HR person is going to know if a doctor, scientist or engineer is qualified…..NOT!!!  
     
    I have been on these panels.  Once the pool of selected candidates makes it to the interview panel, the scoring system is gone.  It down to experience.  Everyone is asked the same exact questions and the panelists score the individual on their answers and then select the top 2-3 persons to forward to the branch chief, with our findings, for selection.
     
     

    • NoDonkey says:

      Agree, the scoring is where the evaluation and selection process really starts, not where it ends. 

  9. Lee Eilers says:

    Excuse me, but this who premise of the “highest score” gets the position is a load of BULL.  The scoring is a mechanism used by HR to screen & score applicants resumes.  From there, they add 5 or 10 more points for veterans.  From the point totals, they select the top 3-5-7 candidates and forward those candidates to the interview panel in the OpDiv/branch who has the vacancy.  Only these folks are capable of assessing true technical competency.  Like a HR person is going to know if a doctor, scientist or engineer is qualified…..NOT!!!  

    I have been on these panels.  Once the pool of selected candidates makes it to the interview panel, the scoring system is gone.  It down to experience.  Everyone is asked the same exact questions and the panelists score the individual on their answers and then select the top 2-3 persons to forward to the branch chief, with our findings, for selection.

    • Disabled vet says:

      Yeah as long as they are your friends, friends of friends or family right?  Quit defending your obvious gaming of the system.  It’s people like you that keep the vets out.  Why?  Because they come in with corporate knowledge and are a threat to your little empire.

    • $15300432 says:

      Obviously from your comments your agency is 1 of the problem children

  10. Morenag says:

    i think you have VOW and VEOA mixed up in your article.  Please research the differences and clarify your notes.

  11. MarchMarine17 says:

    I still am left to wonder, long after asking repeatedly while working for Customs and Border Protection without ever a response exactly how many Veterans has CBP hired in the last few years at JFK Airport? Each federal agency is required, by federal law, “to hire and promote Veterans” but CBP seems to be very lacking in that ‘requirement’. C’mon CBP,prove me wrong on this, please!

  12. RobH says:

    The reason most supervisors won’t hire veterans is because no one makes them.  I worked for a supervisor who consistently went out of his way to circumvent the veterans preference list and guess what, he’s still there!    Obviously, of all those veteran applications, not a single one is qualified enough for him.

  13. bh11234 says:

    Sounds like qualifications are taking a back seat here.

    • $15300432 says:

      These are CS jobs hardly some special intelect being  required

    • maxie5000 says:

      Ironically VA is the worst when it comes to employing, retaining, and promoting vets.  I got passed over (I am a vet, I’ve worked for VA as an eligibility clerk for 16 years) for the six higher elilgibility positions to include the lead eligibility clerk, regardless of the fact that I was the one training all new clerks in enrollment/eligibility/community based clinics, regardless of my vet pref, my experience and I even had a priority cosideration in my record because HR “forgot to interview me a couple of times” for positons.  An outside HR specialist got hired and he was the one to catch it. I got beat out by a lab tech with a degree in culinary arts and a bank teller.  Eight months later he informed me the he was going to quit to go work in another VA in another VISN, because VISN 10 “sucks a** and has serious internal problems when it comes to the treatment of vet’s both as employees and patients” as he put it.

  14. Tired of all the Whining! says:

    Should immediately consult a federal employment law attorney ???
    Sounds like a plea for customers here!

    • HRGuy71 says:

      Based on my decades of working in federal HR, the advice to seek the assistance of a federal employment law attorney is good advice. Moreover, comments from some readers on this site who have tried to represent themselves reach the same conclusion after they lost a case they were convinced they would win once the third party knew “the truth” of their personal situation. And, in the event another negative thought will immediately come to mind from some people, I do not know the author of the article or anything about him other than his advice is is well founded.

      I don’t think a knee jerk negative reaction of “a plea for customers here” is too negative and will hurt some people who may have a case but decide to “save money” by failing to pay for an experienced representative which will often (usually?) make the difference between winning or losing before a third party. 

      • Management Attorney says:

        As a 30+ year veteran of federal HR at the management level, I agree with HR Guy.   Staffing/hiring is the weakest part of federal HR and it is scandalous how many violations of legal rights occur.

        • Retired HR Spec says:

          What is scandalous is how many applicants are chasing settlements, thinking that they are “wronged” just because they are not selected.  If five disabled veterans are correctly referred, and one is selected, some of the others will get an attorney and waste a lot of time and effort for nothing.

        • CancerFromIRS says:

          I agree, HR is a disgrace – I was misclassified by HR and IRS as probationary when I was a fully career tenured employee.  Almost 20 years of nothing but excellent evaluations, then suddenly terminated due to the hiring manager’s unqualified daughter being out of work and needing our jobs.  1/2 to 1/3 terminated in certain locations at IRS, some on illegal 2nd and horrific probations while the relatives do no real probations at all. All of my due process rights were denied due to HR and IRS’s fraudulent misclassification of me as probationary.  MSPB blindly accepted the fraudulent probationary document, so I was denied all due process rights, while my files were completely falsified, with memos to the wrong agent, cases discussed in my files that were not even mine, etc….  A terrorist would be treated better, with a free lawyer, all paid for by us taxpayers.  

    • GovtBee says:

      I believe the intent is to give the Veteran a small advantage as a reward for his or her service to the Nation in the Armed Services, all other qualifications being equal.  Hire a qualified Veteran and let’s get those unemployment statistics down!

  15. steve5656546346 says:

    “…the Department of Health and Human Services denied a service-disabled veteran his full 10 preference points simply because he used the wrong fax cover letter when sending supporting documentation to the agency.”

    With automated hiring–largely thought free hiring–this kind of petty nonsense is become a recurring and serious problem.

    • FedHRXpert says:

      Ironically, the VA of all agencies continues to be the leading agency violating and undermining veteran preference laws demonstrated by the number of times it has been summoned to explain their actions in federal courts and before the MSPB for the past 10 years! Yup – that is what I said… over the past 10 years! VA also continues to have a disproportionate number of cases before the MSPB every year with giving it the dubious distinction of having the highest ratio of cases before the MSPB per employee among all agencies with hundreds of thousands of employees. Considering that only HR Specialists are authorized to sign off thereby approving ALL of these HR actions beckon for GAO to conduct investigations into these ongoing abuse of personnel signing authorities by HR officials.

  16. $15300432 says:

    Its really past time for people to be made examples of. The laws on Vet preference have been around since the Civil War longer than Civil Service. Yet we ave a number of agencies and HR people who just don’t get it. Any agency fond to be not in compliance should be forced to eliminate the HR folks involved in the decision. Once that happens you can bet HR will start complying.
    Even the Fellows program and recent college graduates program are all in violation of the law and need to be eliminated or forced to insure Vets are part of the programs 

    • Moretothestory says:

      Excellent point onedonewong! Chief Human Capital Officers (CHCOs) and top OPM officials collaborated in 2000 to develop recruitment procedures for filling trainee positions under the excepted service hiring authority known as the Federal Career Intern Program (FCIP). The FCIP was developed to provide agencies with a quick noncompetitive hiring authority for filling mostly GS-5 and GS-7 trainee jobs in administrative and professional positions including apprenticeship jobs in the blue collar occupations and other entry level jobs in technical positions. To get around having to hire veteran preference eligibles, CHCOs and OPM officials agreed to include a regulation in the program which allowed agencies to fill these under the FCIP without regard to veterans preference.  Although vetted via the Federal Register and subsequently placed in the CFR veteran preference eligibles who were being denied any consideration for these jobs filed and won in federal courts which saw this rule as a violation of veterans preference as early as 2004. Despite these early victories and ominous signs VA, SSA, DOD, OPM and MSPB allowed the hiring practice of disregarding applications from veteran preference eligibles under the FCIP until the FCIP was terminated in November 2010. By then as many as 100,000 hires had been made between 2001 and 2010.  To date, none of the CHCOs or OPM officials involved in developing the rule to disregard veteran preference eligibles have been disciplined. In addition, none of the HR Specialists who denied or who approved not having to consider veteran preference eligibles for these noncompetitive appointments to trainee positions under the FCIP have been disciplined. Until and unless HR officials are held accountable HR officials will continue to undermine veterans preference and any other merit principles to suit their interests without fear of being held accountable for their actions.

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