Federal Manager's Daily Report

A remedy for a veterans preference violation requires reconstructing the selection process for the position. Image: Jonathan Weiss/Shutterstock.com

The MSPB has clarified the steps an agency must take after violating veterans preference in hiring — which the agency admitted in the case, involving an applicant with a 10-point preference based on service-connected disabilities who was not hired for a medical support position at a VA medical facility.

In case 2022 MSPB 23, the MSPB said that when the applicant complained to the Department of Labor, the VA “acknowledged that the appellant had applied for the position, that it had selected another candidate, and that it had violated the appellant’s veterans’ preference rights in the process.”

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In response, the VA put him on a 120 day priority hiring list but the Labor Department investigator said that the VA had to either hire the applicant into a comparable position or reannounce it to allow him to compete while being afforded his preference rights. The VA then canceled the original announcement, returned the person it had hired to his previous position, and issued a new vacancy announcement.

Meanwhile, the applicant appealed to the MSPB. where a hearing officer similarly found that the VA had violated his veterans preference rights and ruled that the VA had provided sufficient relief by reannouncing the vacancy.

On appeal of that ruling, the merit board said that a remedy for a veterans preference violation requires reconstructing the selection process for the position and that the VA had not done that.

“To properly reconstruct a selection, an agency must conduct an actual selection process based on the same circumstances surrounding the original faulty selection,” it said. “This includes taking the original selectee out of the position, conducting and evaluating interviews so that they are meaningfully comparable with the original selectee’s interview, and filling the same number of vacancies as before.”

“Here, although the agency attempted to comply with one of the remedies proffered by the DOL investigator, it did not conduct a selection process based on the same circumstances surrounding the original selection and, therefore, it never remedied its original faulty selection process,” the board said in ordering the VA to do so within 30 days.

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