[Federal Register Volume 67, Number 124 (Thursday, June 27, 2002)]
[Notices]
[Pages 43347-43349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16208]
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MERIT SYSTEMS PROTECTION BOARD
[MSPB Docket No. DA-3443-00-0217-I-1]
Opportunity to File Amicus Briefs in Kevdin D. Abrahamsen v.
Department of Veterans Affairs
AGENCY: Merit Systems Protection Board.
ACTION: The Merit Systems Protection Board is providing interested
parties with an opportunity to submit amicus briefs in the above
referenced appeal. The issues to be addressed in such briefs are set
forth in the Board's June 18, 2002, Order, which is reprinted in its
entirety in the Summary below.
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SUMMARY:
Order
The agency issued a vacancy announcement in which it solicited
applications to fill several positions as a Veterans Service
Representative, GS-0996-07 with promotion potential to the GS-10 grade,
in various agency offices, including four positions to be filled in the
agency's Muskogee, Oklahoma office, IAF, Tab 4, Subtab 4a. The vacancy
announcement stated that applicants would be evaluated on the basis of
the application package submitted, rated on the quality and extent of
their total accomplishments, experience, and/or education, and ranked
on the basis of the degree to which each candidate's background matched
the skills and ability requirements identified for the position. Id.
The vacancy announcement further provided that individuals could apply
for these positions if they met the criteria for one of the following
recruitment categories: (1) Outstanding Scholars; (2) Veterans
Readjustment Act (VRA) eligibles; (3) 30% or more disabled veterans;
(4) Preference eligibles and veterans separated after 3 or more years
of continuous active service; (5) Chapter 31 veterans; (6) Handicapped
eligibles; and (7) VA CTAP or Interagency CTAP eligibles. Id.
The appellant submitted an application for the vacancies in the
Muskogee office and attached a letter from the agency certifying his
status as a 30% or more disabled veteran. Id., Subtab 4b. After the
vacancy announcement closed, the agency's Human Resources Center
provided the selecting official with several memoranda, each of which
related to a specific recruitment category listed in the vacancy
announcement, listing the candidates who were eligible for
consideration under the corresponding recruitment category. Id. Subtab
4c. The memoranda listed the candidates in alphabetical order by last
name, and there is no indication that the candidates were rated or
ranked. The agency included the appellant's name on a memorandum of VRA
eligibles. On June 1, 1999, the selecting official noted his selections
on the memoranda and returned them to the Human Resources Center. Each
of the selected candidates had been included on the memorandum
corresponding to the Outstanding Scholar program, although one of the
selectees also had been included on the memorandum of VRA eligibles. By
letter dated June 4, 1999, the agency notified the appellant that he
had not been selected. IAF, Tab 4, Subtab 4d.
On November 12, 1999, the appellant wrote the agency requesting
further information regarding his nonselection.\1\ In its response, the
agency asserted that applications were accepted from special categories
of applicants, as authorized by the Office of Personnel Management
(OPM), and that veterans' preference was applied within each of these
special groups as required by law. IAF, Tab 1. The appellant filed a
complaint with the Department of Labor's Veterans' Employment and
Training Service (VETS) concerning his non-selection,\2\ and, by letter
dated January 7, 2000, VETS notified the appellant that it was closing
his case, ``indicating no merit.'' Id.
On January 25, 2000, the appellant filed an appeal under the
Veterans Employment Opportunities Act (VEOA), 5 U.S.C. 3330a, in which
he claimed that the agency violated his veterans' preference rights.
IAF, Tab 1. Specifically, the appellant claimed that the agency
misapplied the Outstanding Scholar program when it selected the four
candidates that appeared on the Outstanding Scholar program memorandum
because the agency's use of this program ``as a primary tool and not as
a supplement did not allow the full entitlement of veterans preference
when the selections were made.'' Id. The administrative judge issued an
acknowledgement order requiring the appellant to submit evidence and
argument to show that the agency violated his rights under a specific
statute or regulation relating to veterans' preference. IAF, Tab 2. In
his response to this order, the appellant alleged that the agency
violated 5 U.S.C. 2302(b)(1), (b)(11)(A) and (B), and (b)(12), as well
as 38 U.S.C. 4214(a)(1). IAF, Tab 3. In its response to the appeal, the
agency argued that veterans' preference does not apply to appointment
made under the Outstanding Scholar program and that the Board lacks
jurisdiction over any allegation that the agency abused or misused the
program. IAF, Tab 4.
On March 22, 2000, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction, finding that
the appellant failed to meet his burden of proof on the issue of
jurisdiction. Initial Decision (ID) at 4-5; see 5 CFR 1201.56(a)(2)(1).
The administrative judge found that the Outstanding Scholar program
hiring authority permitted the agency to hire individuals without
regard to veterans' preference and stated that the appellant failed to
identify a specific statute or regulation relating to his veterans'
preference rights which the agency violate when it used the Outstanding
Scholar hiring authority as a basis for its selections. ID at 4-5. The
appellant has filed a timely petition for review in which he states
that the Outstanding Scholar program is outside the Board's
jurisdiction but argues that the administrative judge erred in
concluding that the agency did not violate his veterans' preference
rights under 38 U.S.C. 4214(a)(1). Petition for Review File (PFRF), Tab
1. The agency has filed a response in which it argues that 38 U.S.C.
4214(a)(1) is not a statute relating to veterans' preference. PFRF, Tab
3.
[[Page 43348]]
The Board has previously discussed the issue presented by this case
in Augustine v. Department of Veterans Affairs, 88 M.S.P.R. 407 (2001).
In Augustine, the Board found that the Veterans Service Representative
position is a competitive service position, and it discussed the means
by which veterans' preference is applied in the competitive examining
process. Augustine, 88 M.S.P.R. 407, ]] 8, 10-11. In order to qualify
for an appointment to a competitive service position, an applicant must
pass an examination or be specifically excepted from examination under
section 3302 of title 5, United States Code. 5 U.S.C. 3304(b). In this
case, there is no indication that any of the candidates the agency
referred to the selecting official passed an examination for the
Veterans Service Representative position.\3\ However, when the
competitive examining process is used to fill vacancies for competitive
service positions other than scientific and professional positions in
the grades of GS-09 or higher, disabled veterans who have a compensable
service-connected disability of 10 percent or more, such as the
appellant, are entered onto registers and referred on certificates of
eligibles in order of their ratings ahead of all remaining applicants.
5 U.S.C. 3313(2), 3317(a). Furthermore, the appointing authority is
required to select for appointment to each vacancy from the highest
three eligibles available for appointment on the certificate of
eligibles provided by the examining authority. 5 U.S.C. 3318(a). If the
appointing authority proposes to pass over a preference eligible on a
certificate in order to select an individual who is not preference
eligible, the appointing authority must file written reasons for the
pass over with OPM and obtain OPM's approval. 5 U.S.C. 3318(b)(1). In
the case of a preference eligible veteran with a service-connected
disability of 30% or ore, such as the appellant, the veteran is
entitled to notice of the proposed pass over and an opportunity to
respond to OPM. 5 U.S.C. 3318(b)(2).
It appears that only one of the candidates the agency selected was
a veteran, and there is no indication that any of the selected
candidates were preference eligible.\4\ Thus, had the agency used
competitive examining procedures to fill the positions at issue in this
case, the appellant, as a preference eligible veteran with a service-
connected disability of 10 percent or more, would have been ranked
ahead of at least three of the candidates the agency selected, and the
agency could not have selected any of these three candidates without
obtaining OPM's approval to pass over the appellant. As the Board
pointed out in Augustine, however, OPM's official guidance concerning
the Outstanding Scholar program states:
Under the terms of the Luevano [v. Campbell, 93 F.R.D. 68
(D.D.C. 1981)] consent decree the Outstanding Scholar program was
established as a supplement to the competitive examining process
where under-representation of Blacks and Hispanics exists. This
authority was not intended to replace competitive examining, nor to
become the primary method of hiring. This authority allows agencies
to appoint Outstanding Scholars [meeting specified college grade-
point or class standing criteria] as an exception to normal
competitive procedures, that is, the rule of three [5 U.S.C.
3318(a)] and veterans' preference [5 U.S.C. 3318(b)] do not apply.
Office of Personnel Management, Delegated Examining Operations
Handbook, Sec. 2.8(A). Therefore, by considering the selected
candidates under the non-competitive Outstanding Scholar program, the
agency deprived the appellant of a significant advantage he would have
had over these candidates if the agency had used competitive examining
procedures.
While an agency generally has the discretion to fill a vacancy
through any authorized method, see Sherwood v. Department of Veterans
Affairs, 88 M.S.P.R. 208, ] 10 (2001), the record does not establish
that the agency was authorized to use the Outstanding Scholar program
in this case. The Delegated Examining Operations Handbook lists the
criteria that positions must meet before they are covered under the
Luevano consent decree:
There are two additional limitations on the types of occupations
for which agencies can examine:
1. Positions Covered Under the Luevano Consent Decree (formerly
called Administrative Careers With America--ACWA) Defined. The
series and job titles covered under the Luevano Consent Decree are
listed in Appendix B. In addition to the series being one of those
listed in the Appendix, a covered position must also meet ALL of the
following criteria:
(a) it is being filled at either GS-5 or GS-7;
(b) it is classified at 2-grade intervals; and
(c) it must have promotion potential to GS-9, or higher.
Agencies are reminded that the Luevano consent decree required
the establishment and application of an approved rating procedure
for entry into these covered positions. OPM continues to administer
an approved examining instrument on a case-by-case basis;
alternatively, OPM will administer the written test developed for
the Luevano positions for an agency, upon request. When using the
approved rating instrument, the specialized qualification questions
can be modified, but the rating questions cannot be changed.
Agencies that wish to consider developing an alternative examining
instrument must obtain approval from the Department of Justice and
the plaintiffs prior to implementation. Agencies should also be
aware that there are data collection and reporting requirements that
go along with examining for Luevano positions.
The Outstanding Scholar provision of the Luevano decree is still
available as a supplement to a formal competitive examination.
Id., Sec. 1.2(B) (emphasis in the original).
It appears that the positions at issue in this case meet most of
the Luevano criteria identified in the OPM handbook. The 0996
classification series is identified in Appendix B of the handbook, and
the vacancy announcement indicated that the positions were being filled
at the grade of GS-7 with promotion potential to the GS-10 grade.
However, the job title identified in Appendix B of the OPM handbook for
the 0996 classification series is ``Veterans Claims Examining,'' while
the job title of the advertised positions in this case was ``Veterans
Service Representative.'' In addition, it is unclear whether the
position of ``Veterans Service Representative'' is classified in 2-
grade intervals. Therefore, to the extent that the agency relied on
authority delegated from OPM to appoint Outstanding Scholar program
candidates to positions covered by the Luevano consent decree, the
record, as it currently stands, does not establish that the positions
at issue were covered by that decree.
Furthermore, even if the positions were covered by the Luevano
consent decree, the record does not show that the agency's use of the
Outstanding Scholar program in this case was consistent with OPM's
requirement that the program be invoked ``as a supplement to the
competitive examining process where the under-representation of Blacks
and Hispanics exists.'' Delegated Examining Operations Handbook,
Sec. 2.8(A); see Augustine, 88 M.S.P.R. 407, ] 18. As mentioned
previously, the record does not indicate that the agency conducted a
competitive examination before selecting the four individuals to fill
the vacancies at issue in this case. If it had, preference eligible
candidates who should have taken and passed the competitive examination
presumably would have been afforded their veterans' preference rights,
at least with respect to the positions filled through the competitive
examining process. Furthermore, the record contains no evidence to
support the proposition that the agency invoked the Outstanding
[[Page 43349]]
Scholar appointing authority in this case to ameliorate ``under-
representation of Blacks and Hispanics.'' See Augustine, 88 M.S.P.R.
407, ] 18.
With respect to the three selectees who were not included on the
VRA memoranda, the agency has not identified any authority, other than
the Outstanding Scholar program, that would have allowed these
candidates to be appointed to the positions for which they were
selected without passing an examination. Therefore, if the agency was
not authorized to use the Outstanding Scholar hiring authority in this
case, it could not have properly hired these candidates without
conducting an examination. 5 U.S.C. 3304(b) (``An individual may be
appointed in the competitive service only if he has passed an
examination or is specifically excepted from examination under section
3302 of this title.''). In addition, because at least 36 applicants
applied for the four vacancies, it appears that any examination the
agency may have administered should have been an open, competitive
examination in which the appellant and other preference eligible
candidates would have had the opportunity to compete with the selected
candidates. 5 U.S.C. 3304(a)(1). Following such an examination, the
agency would have been required to augment the ratings of any
preference eligible candidates who passed the examination by the
appropriate number of veterans' preference points. 5 U.S.C. 3309. In
addition, if the appellant had taken and passed the examination, his
name would have been entered ahead of the names of any of the
candidates who were not disabled veterans with a compensable service-
connected disability of 10 percent or more, and the agency would have
had to obtain OPM's approval to pass over the appellant to select any
of the candidates it actually selected who did not qualify for a non-
competitive appointment under some other statutory or regulatory
authority. 5 U.S.C. 3313(2), 3318(a), (b).
Accordingly, the agency's use of the Outstanding Scholar hiring
authority essentially precluded the appellant from exercising any
veterans' preference rights he may have had in relation to the
Outstanding Scholar candidates. Because the record as it currently
stands, does not establish that the agency was properly authorized to
use the Outstanding Scholar program when it filled the vacancies at
issue in this appeal, we ORDER the agency to show cause why the Board
should not find that the agency's use of the Outstanding Scholar hiring
authority violated the appellant's veterans' preference rights by
allowing the agency to appoint non-preference eligible candidates
without affording the appellant the opportunity to compete against
these candidates and exercise the veterans' preference rights he would
have been afforded in a competitive examining process.
Within 30 days of the date of this order, the agency shall submit
evidence and argument which (1) identifies the rules governing the use
of the Outstanding Scholar appointing method, both in general, and
when, as in this case, a qualified individual with veterans' preference
applies for a competitive service position; and (2) establishes that
the agency's use of the Outstanding Scholar hiring authority in this
case complied with the rules identified in (1). The appellant may
respond to the agency's submission within 30 days of the date of the
service of the agency's argument and evidence.
The Clerk is directed to cause this order to be printed in the
Federal Register, and to advice any interested party that it may submit
an amicus brief on the issues identified above, within 30 days of the
date of publication. The notice shall instruct amici to file two copies
of their briefs with the Clerk of the Board, and shall include
instruction for service of briefs on the agency. The Clerk will serve
copies of amicus briefs on the appellant.
The agency and the appellant may respond to any amicus briefs filed
within 20 days from the latest date an amicus brief is served, but in
any case no later than 60 days from the date of publication of the
notice in the Federal Register.
\1\ Although the record does not include a copy of the
appellant's letter to the agency, the agency's response identified
the date of the letter and briefly summarized its contents as a
request for ``information regarding your nonselection as a 30
percent or greater disabled veteran for the position of Veterans
Service Representative in our Veterans Service Center, at the
Muskogee VA Regional Office.'' IAF, Tab 1.
\2\ Because the record does not include a copy of the complaint
the appellant filed with VETS, it is not clear when the appellant
filed his complaint with the Department of Labor.
\3\ OPM requires written and/or performance tests for positions
at the grades of GS-05 and GS-07 in the 0996 occupational series.
Office of Personnel Management Operating Manual, Qualification
Standards for General Schedule Positions, Sec. 5, <http://www.opm.gov/qualifications/sec-v/sec-v.htm.
\4\ As mentioned previously, one of the candidates selected
appeared on the Outstanding Scholar program memorandum and the VRA
memorandum. Persons qualified for a VRA appointment include veterans
of the Vietnam era and veterans who first became a member of the
Armed Forces or first entered on active duty as a member of the
Armed Forces after May 7, 1975, and were discharged or released from
active duty under conditions other than dishonorable. 38 U.S.C.
4214(b)(2). However, veterans who are eligible for VRA appointments
are not necessarily preference eligible. Still, it is possible that
this candidate was preference eligible. See 5 U.S.C. 2108(3)(A),
(B), (C) (defining the veterans who are preference eligible).
\5\ The names of 36 applicants appear on the 6 memoranda the
agency Human Resources Center provided the selecting official. IAF,
Tab 4, Subtab 4c. The first merit system principle states that
``[r]ecruitment should be from qualified individuals * * * after
fair and open competition which assures that all receive equal
opportunity,'' 5 U.S.C. 2301(b)(1), but the statute provides that
the President may prescribe rules which shall provide for
noncompetitive examinations when competent applicants do not compete
after notice has been given of the existence of the vacancy. 5
U.S.C. 3304(a)(2).
DATES: All briefs in response to this notice shall be filed with the
Clerk of the Board on or before July 29, 2002.
ADDRESSES: All briefs shall include the case name and docket number
noted above (Kevin D. Abrahamsen v. Department of Veterans Affairs,
MSPB Docket No. DA-3443-00-0217-I-1) and be entitled `` Amicus Brief,''
and shall be submitted in duplicate. Briefs shall be filed with the
Office of the Clerk, Merit Systems Protection Board, 1615 M St., NW.,
Washington, DC 20419. Because of possible mail delays caused by the
closure of the Brentwood Mail facility, respondents are encouraged to
file with the Clerk by facsimile transmittal to (202) 653-7130. A copy
of any amicus brief that is submitted must also be served on Stephanie
R. Darr, Esq., Office of Regional Counsel, Department of Veterans
Affairs, 125 South Main Street, Muskogee, OK 74401.
FOR FURTHER INFORMATION CONTACT: Shannon McCarthy, Deputy Clerk of the
Board, or Matthew Shannon, Legal Counsel to the Clerk, at (202) 653-
7200.
Dated: June 21, 2002.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 02-16208 Filed 6-26-02; 8:45 am]
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