The board cited a court ruling that the VEOA applies to initial appointments, not promotions. Image: Pixel-Shot/Shutterstock.com
By: FEDweek StaffThe MSPB has issued two rulings taking a narrow view of veterans preference rights in federal employment, including one in which it overturned its own prior precedent.
That case, No. 2022 MSPB 30, involved a current federal employee who contended that he was denied the “opportunity to compete” provided by the Veterans Employment Opportunities Act when he was not selected for a merit promotion that was open to current or former competitive service employees inside or outside the agency.
However, an MSPB hearing officer (now the board) noted that in a 2015 case, the Federal Circuit appeals court “determined that current federal employees, by virtue of their employment status, are not entitled to corrective action for a claim that they were denied the opportunity to compete for vacancies announced under merit promotion procedures and for which the agency accepted applications from individuals outside of its own workforce.
The Federal Circuit determined that the statutory text and the legislative history of VEOA only evinced an intent to assist veterans in obtaining an initial appointment to the federal service – not subsequent promotions or other intra-agency movement,” according to a summary of the case.
In view of that court precedent, the board overruled several prior decisions turning on that issue.
The other case, 2022 MSPB 29, involved an alleged violation of the VEOA for failure to hire a preference-eligible veteran into a DoD acquisition position being filled under “direct hire” authority. While veterans preference does not apply to direct hire, the candidate argued that DoD’s general discretion to use expedited hiring authorities did not extend to using direct hire for that position.
However, the MSPB said that the DoD has specific authority to use direct hire to fill “any category of positions within its acquisition workforce for which there exists a severe shortage of candidates and for which there is a critical hiring need.” It also said that DoD policy that candidates with veterans preference should be considered when they are found to best meet mission requirements did not guarantee preference to veterans but only affirmed their general right to compete for the positions.
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