In a series of cases, the Merit Systems Protection Board has ruled both for and against veterans preference in different circumstances. In Brandt v. Department of the Air Force, No. SF-3443-04-0614-1-3 (10/20/06), the Board held that a candidate considered under merit promotion procedures is not entitled to veterans preference in the selection. Although the statute on veterans preference was unclear as to whether veterans are entitled to preference under merit promotion procedures, the Board gave deference to the Office of Personnel Management’s (OPM) reasonable interpretation of the statute, 5 USC 3304(f)(1), as set forth in the OPM regulations – 5 CFR 335.106. Accordingly, the MSPB held that after reviewing the regulatory provisions governing merit promotion procedures and Board precedent, employees are not entitled to veterans preference in that situation.

In Joseph v. Federal Trade Commission, No. DC-3443-05-0141-1-1 (10/24/06), the MSPB gave deference to OPM’s Delegated Examining Operations Handbook that an agency may simultaneously solicit applications for a single position from internal candidates under merit promotion procedures and external candidates through competitive examinations. As in Brandt, when an agency uses merit promotion procedures to make a selection, there is no entitlement to veterans preference. While the appellant, a 10-point veteran, applied under both merit promotion and competitive procedures, the agency decided to make the selection under merit promotion procedures where he was included on the certificate with the selectee. Although the selectee was not listed on the certificate using competitive procedures, the Board found that the agency had the right to select an internal candidate without veterans preference from the merit promotion certificate. Again, the Board deferred to OPM’s reasonable interpretation of the statute – 5 USC 3304(f)(1) – which did not require an agency to conduct a competitive examination with veterans preference under merit promotion procedures.

Veterans fared better in Dean and Olson v. Department of Veterans Affairs, Nos. AT-0330-03-0076-R-1 and CH-3443-01-0706-R-1 (10/26/06). In these consolidated cases, the Board ruled that the Outstanding Scholar Program cannot be relied upon to avoid the competitive examination process when veterans preference rights are at issue, absent specific legislation or Executive Order. The Outstanding Scholar Program is a hiring method established for certain positions by the consent decree in a class action under Title VII of the Civil Rights Act. Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981).

The Board denied OPM’s petition for reconsideration, finding that OPM’s power to place positions in the excepted service does not authorize creation of the Outstanding Scholar Program which is a non-competitive method of making appointments to positions in the competitive service. It held that the Luevano decree did not authorize use of the program to override veterans preference and the Outstanding Scholar Program cannot be relied upon to avoid the competitive examination process where veterans preference rights are at issue. In a concurring opinion, Member Mary Rose emphasized that there is no indication that OPM has yet complied with the requirements of 5 USC 3302 by prescribing rules establishing and administering the Outstanding Scholar Program as a specific exception to competitive examining requirements and thus veterans preference provisions apply to the selection procedures in question.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **

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