Veterans Chalk Up Wins at MSPB and Court – Part Two

This is part two of Steve Oppermann’s article on “Veterans Chalk up Wins at MSPB and Court” and a string of wins for veterans in recent cases.

I noted in part one of this article that I viewed John E. Kirkendall v. Department of the Army as one of a string of wins for veterans in recent cases before the Merit Systems Protection Board (MSPB/Board) and/or the Court. 

For example, in Robert P. Isabella v. Department of State and Office of Personnel Management (OPM), the Board reviewed OPM guidance stating that maximum entry-age restrictions were not waived for persons entitled to veterans’ preference. It found that such guidance was in conflict with a section in the Veterans Preference Act. As a result of this decision, the Director of OPM issued a memorandum, dated 8/26/09, indicating that an agency must waive maximum entry-age restrictions for qualified veterans’ preference eligibles unless it determines that such a restriction is essential to the position. 
The Isabella case had some aspects I found to be particularly interesting. The Diplomatic Security Service’s job description called for someone 37 or younger. Mr. Isabella was 36 years old at the time he applied. When he turned 37, the agency stopped processing his application, figuring that he was too close to the cutoff age. Unless the Department of State assumed that it would take them another year to fill the position, that decision made no sense to me. 
And any argument on the agency’s part that a maximum entry-age of 37 was essential to the position was rendered moot when Mr. Isabella’s attorney pointed out that State had extended the mandatory retirement age to 60 on a number of occasions. The Board determined, according to a July 15, 2008, article by Brittany Ballenstedt, that "in this case the sole purpose of the age restriction was to allow agents to enjoy a full career before reaching the mandatory retirement age" of 57.
In David Dean v. Department of Agriculture, an MSPB administrative judge (AJ) found that the agency’s appointment from an Outstanding Scholar certificate, rather than a certificate for which veterans’ preference is afforded, violated Mr. Dean’s veterans’ preference rights. He determined that the Luevano consent decree on which the agency relied for its action was insufficient authority to permit its choice not to use competitive examining in filling the position, especially when a qualified veteran applies for an announced vacancy.
In a similar case, Matthew S. Olson v. Department of Veterans Affairs, the AJ denied Mr. Olson’s VEOA claim. She found that the Outstanding Scholar program was properly authorized by the Luevano consent decree as a supplement to the competitive examining process in situations where there is under-representation of blacks and Hispanics. She therefore concluded that the agency’s use of the program did not violate Mr. Olson’s veterans’ preference rights.
In Olson, the full Board held, for the same reasons stated in Dean, "that the Luevano consent decree did not create an exception from competitive examination that supersedes veterans’ preference rights under the competitive process. Thus the Board held that Mr. Olson’s rights under a statute relating to veterans’ preference were violated by the agency’s appointments from the Outstanding Scholar list."
The Director of OPM filed a petition for reconsideration of these decisions. The Board reconsidered the two cases together, as Dean v. Department of Veterans Affairs and Matthew S. Olson v. Department of Veterans Affairs, and Office of Personnel Management, Petitioner. After reviewing OPM’s arguments, the Board denied its petition for reconsideration. Subsequently, OPM issued guidance to Federal agency heads strongly advising against further use of the Outstanding Scholar Program.
In Stephen W. Gingery v. Department of Defense, Mr. Gingery, a preference-eligible veteran with a service-connected disability rated at 30% or more, applied for three auditor positions the Defense Contract Audit Agency (DCAA) planned to fill via the Federal Career Intern Program (FCIP). (Susan Smith reported and analyzed this case for on December 29, 2008.)
Using a category rating system; the agency placed Mr. Gingery in Category 1. There were no other applicants in Category 1, or in Categories 2 or 3. There were six candidates in Category 4. Because there were fewer than three candidates in Category 1, DCAA considered the applicants in Category 4 under section 302.401(a). The agency did not select Mr. Gingery, instead hiring two auditors under the FCIP. 
Mr. Gingery appealed to MSPB, alleging that DCAA willfully violated his veterans’ preference rights under the VEOA when it failed to select him for any of the positions, failed to request permission from OPM to pass him over, and failed to notify him of its intent to pass him over under 5 USC 3318(b). The AJ concluded that DCAA did not violate Mr. Gingery’s veterans’ preference rights.
He petitioned the Board for review, alleging that DoD’s hiring under the FCIP constituted improper circumvention of his preference rights. MSPB granted review and concluded that the FCIP constituted a valid exception to hiring in the competitive service because the hiring program "was expressly authorized by an Executive order promulgated under 5 USC 3302." The Board thus affirmed the AJ’s initial decision.
Mr. Gingery appealed the MSPB’s final decision on two grounds. He argued that 1) OPM’s passover regulation [5 CFR 302.401(b)] is invalid because it is inconsistent with the passover procedures of 5 USC 3318(b) when applied to the excepted service via 5 USC 3320, and 2) the FCIP is unlawful in its entirety. 
The Court agreed that OPM’s regulation – 5 CFR 302.401(b) – was invalid because it provided "30% or more disabled Veterans with less protection than Congress guaranteed them in Section 3318. Accordingly, it reversed and remanded the Board’s decision. The Court stated that "Because we conclude that OPM’s passover regulation is invalid and that Mr. Gingery’s veterans’ preference rights were violated, we need not reach the broader question of the FCIP’s validity." (emphasis added)
Judge Newman, in a concurring opinion, stated that Mr. Gingery had raised the issue of the validity of the FCIP and that the "MSPB granted review and concluded that the FCIP constituted a valid exception to hiring in the competitive service." Accordingly, Judge Newman believed that the issue was "before this court, and it should be discussed and resolved." 
Judge Newman’s opinion in the Gingery case was noted by the Board in a subsequent FCIP case, Alvern C. Weed v. Social Security Administration. In that case, the AJ had dismissed for lack of jurisdiction Mr. Weed’s appeals under the VEOA and USERRA. When Mr. Weed appealed, the Board granted his petition for review, reversed the initial decision, and remanded the appeal for further adjudication consistent with its Opinion and Order.
The final case I will address here is Richard Erickson v. United States Postal Service
Background: Mr. Erickson was employed by the Postal Service from 1988 until 2000. During that period, he was absent from his USPS position for lengthy periods of active duty with the National Guard. In January 2000, a labor relations specialist from the Postal Service contacted Mr. Erickson by telephone to see if he intended to return to his position with the agency or continue serving in the military. Mr. Erickson responded that he would not report back to the agency until he completed the current tour of duty in September 2001. In the course of that conversation, he allegedly stated that he preferred military service to working for the Post Office.
Shortly thereafter, the Postal Service proposed Mr. Erickson’s removal for excessive use of military leave. He did not respond, but nine months after the end of his military duty, Mr. Erickson appealed to the MSPB alleging that the USPS had violated his USERRA rights by removing him based on his military service. The AJ found that Mr. Erickson’s cumulative military leave had not exceeded the five-year limit set by USERRA, but concluded that Mr. Erickson had waived his USERRA rights by abandoning his civilian career in favor of a military one.
Mr. Erickson appealed to the Board. The agency opposed the petition and filed a cross-petition for review alleging that the AJ had erred in failing to address its argument that Erickson did not make a proper request for reemployment with the agency. 
The Board upheld the agency’s action as nondiscriminatory, relying on the fact that an agency is otherwise entitled to remove an employee for prolonged non-military leaves of absence. In its notice of removal, the Postal Service stated that the sole reason for removing Mr. Erickson from his position was his excessive use of military leave. 
The full Board acknowledged that "on its face" that admitted purpose would seem to constitute direct evidence of discrimination under USERRA.  Nonetheless, the Board found that Mr. Erickson had failed to show that his military service was a motivating factor for the agency’s action because the ‘real reason’ for his removal was his absence from work – regardless of whether that absence was caused by his military obligation."
Mr. Erickson then appealed to the Court of Appeals for the Federal Circuit. The Court agreed with the Board that Mr. Erickson had failed to make a timely request for reemployment after his military service, and therefore upheld the Board’s ruling that the Postal Service did not unlawfully refuse to reemploy Mr. Erickson. 
The Court, however, disagreed with the Board’s rationale for rejecting Mr. Erickson’s claim of discrimination based on military service, and remanded the case to the Board to address the AJ’s finding that Mr. Erickson had waived his USERRA rights by abandoning his civilian career in favor of one in the military. 
In its analysis, the Court stated that "An employer cannot escape liability under USERRA by claiming that it was merely discriminating against an employee on the basis of his absence when that absence was for military service. As other courts have held, military service is a motivating factor for an adverse employment action if the employer ‘relied on, took into account, considered, or conditioned its decision’ on the employee’s military-related absence or obligation…
"The most significant – and predictable – consequence of reserve service with respect to the employer is that the employee is absent to perform that service. To permit an employer to fire an employee because of his military absence would eviscerate the protections afforded by USERRA, the overarching goal of which is to prevent those who serve in the uniformed services from being disadvantaged by virtue of performing their military obligations.   (emphasis added)
"…Thus, the fact that the Postal Service could have lawfully removed Mr. Erickson if his absence had not been service related does not excuse its action in this case. Mr. Erickson was absent from work because of his military service, and USERRA protects against removal for that reason. The agency’s explanation that firing Mr. Erickson was necessary in order to fill his position in the Postal Service is similarly without merit. 
"Congress enacted USERRA in part to make clear that discrimination in employment occurs when a person’s military service is ‘a motivating factor,’ and not to require…that military service be the sole motivating factor for the adverse employment action." (emphasis added)
My Comments: The pattern I see in these cases is that the Board—at least intermittently—and the Court are telling Federal agencies in general and OPM in particular that the statutory protections of veterans cannot be ignored and that excepted appointing authorities cannot be used to circumvent veterans’ rights.. In the employment cases, the Court is not saying that veterans must be selected but that they do have to receive bona fide consideration if qualified. Nor can they be removed based on absences due to their military service, subject to the five-year limitation of USERRA.
MSPB has essentially told OPM to kiss the Outstanding Scholar appointing authority goodbye. (See Veterans Preference, Federal Hiring and Outstanding Scholars)
The authority was created under the Luevano consent decree to benefit blacks and Hispanics, the two groups which had successfully challenged both the Federal Service Entrance Exam (FSEE) and its successor, the Professional and Administrative Career Examination (PACE), as having a discriminatory effect. 
MSPB had questioned for several years whether the Outstanding Scholar authority was principally benefiting blacks and Hispanics as it was designed to do and had advised OPM to cancel it. OPM had resisted those efforts, but in light of the Dean and Olson cases, the battle appears to be over.
The Federal Career Intern Program (FCIP) was created by Executive Order 13162 in 2000. Based on the Gingery and Weed cases, the future of the FCIP may be in question as well. The Board pointed out in Weed that 5 USC 3302 does not grant OPM the authority to delegate to agencies the responsibility for identifying positions not subject to competitive positions, but found that OPM "appears to have delegated to agencies the authority to identify positions for the FCIP."  Clearly, OPM will have to make such decisions itself in the future, but it appears that both the Board and the Court will be scrutinizing OPM’s rationale for identifying positions that are necessary exceptions from the competitive service. 
Under Isabella, waiver of mandatory entry-age restrictions must be granted to preference eligibles unless the agency can demonstrate that the restriction is essential to the position. 
It seems that the timing of these and other recent third-party cases couldn’t be much better for the veterans who will be returning from war, particularly those who have been stationed in Iraq. The drawdown in Iraq is expected to leave 120,000 troops there by the end of October, a decrease of 23,000 since January, with a goal of reducing the number to 50,000 by August 2010. 
While current troop strength in Afghanistan is approximately 68,000, and the need for more is currently the subject of intense debate at the White House and in Congress, those veterans, too, will be returning to the U.S. at some point, and many will be looking for civilian employment, with the Federal Government considering itself to be the employer of first resort for veterans – the statistics back that claim up – and disabled veterans in particular. 
I will close by gratefully acknowledging the assistance I received from Sue Willis, a Human Resources Officer for the National Park Service in Denver, in updating my knowledge and understanding of veterans’ preference and special appointing authorities for veterans.


About the Author

Steve Oppermann completed his Federal career on March 31, 1997, after more than 26 years of service, virtually all in human resources management. He served as Regional Director of Personnel for GSA and advised and represented management in six agencies during his federal career. Steve passed away after a battle with cancer on December 22, 2013.