elaws - Veterans' Preference Advisor

Veterans' Preference Advisor

P.L. 105-338

105th CONGRESS 2d Session

S. 1021

AN ACT To amend title 5, United States Code, to provide that consideration may not be denied to preference eligibles applying for certain positions in the competitive service, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the `Veterans Employment Opportunities Act of 1998'.

Section 3304 of title 5, United States Code, is amended by adding at the end the following:

`(f)(1) Preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.

`(2) This subsection shall not be construed to confer an entitlement to veterans' preference that is not otherwise required by law.

`(3) The area of consideration for all merit promotion announcements which include consideration of individuals of the Federal workforce shall indicate that preference eligibles and veterans who have been separated from the armed forces under honorable conditions after 3 years or more of active service are eligible to apply. The announcements shall be publicized in accordance with section 3327.

`(4) The Office of Personnel and Management shall establish an appointing authority to appoint such preference eligibles and veterans.'.

(a) IN GENERAL- Subchapter I of chapter 33 of title 5, United States Code, is amended by adding at the end the following:

`Sec. 3330a. Preference eligibles; administrative redress

`(a)(1) A preference eligible who alleges that an agency has violated such individual's rights under any statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor.

`(2)(A) A complaint under this subsection must be filed within 60 days after the date of the alleged violation.

`(B) Such complaint shall be in writing, be in such form as the Secretary may prescribe, specify the agency against which the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.

`(3) The Secretary shall, upon request, provide technical assistance to a potential complainant with respect to a complaint under this subsection.

`(b)(1) The Secretary of Labor shall investigate each complaint under subsection (a).

`(2) In carrying out any investigation under this subsection, the Secretary's duly authorized representatives shall, at all reasonable times, have reasonable access to, for purposes of examination, and the right to copy and receive, any documents of any person or agency that the Secretary considers relevant to the investigation.

`(3) In carrying out any investigation under this subsection, the Secretary may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In case of disobedience of the subpoena or contumacy and on request of the Secretary, the Attorney General may apply to any district court of the United States in whose jurisdiction such disobedience or contumacy occurs for an order enforcing the subpoena.

`(4) Upon application, the district courts of the United States shall have jurisdiction to issue writs commanding any person or agency to comply with the subpoena of the Secretary or to comply with any order of the Secretary made pursuant to a lawful investigation under this subsection and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order of the Secretary as a contempt of court.

`(c)(1)(A) If the Secretary of Labor determines as a result of an investigation under subsection (b) that the action alleged in a complaint under subsection (a) occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the agency specified in the complaint complies with applicable provisions of statute or regulation relating to veterans' preference.

`(B) The Secretary of Labor shall make determinations referred to in subparagraph (A) based on a preponderance of the evidence.

`(2) If the efforts of the Secretary under subsection (b) with respect to a complaint under subsection (a) do not result in the resolution of the complaint, the Secretary shall notify the person who submitted the complaint, in writing, of the results of the Secretary's investigation under subsection (b).

`(d)(1) If the Secretary of Labor is unable to resolve a complaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought--

`(A) before the 61st day after the date on which the complaint is filed; or

`(B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2).

`(2) An appeal under this subsection may not be brought unless--

`(A) the complainant first provides written notification to the Secretary of such complainant's intention to bring such appeal; and

`(B) appropriate evidence of compliance with subparagraph (A) is included (in such form and manner as the Merit Systems Protection Board may prescribe) with the notice of appeal under this subsection.

`(3) Upon receiving notification under paragraph (2)(A), the Secretary shall not continue to investigate or further attempt to resolve the complaint to which the notification relates.

`(e)(1) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board from any action which is appealable to the Board under any other law, rule, or regulation, in lieu of administrative redress under this section.

`(2) A preference eligible may not pursue redress for an alleged violation described in subsection (a) under this section at the same time the preference eligible pursues redress for such violation under any other law, rule, or regulation.

`Sec. 3330b. Preference eligibles; judicial redress

`(a) In lieu of continuing the administrative redress procedure provided under section 3330a(d), a preference eligible may elect, in accordance with this section, to terminate those administrative proceedings and file an action with the appropriate United States district court not later than 60 days after the date of the election.

`(b) An election under this section may not be made--

`(1) before the 121st day after the date on which the appeal is filed with the Merit Systems Protection Board under section 3330a(d); or

`(2) after the Merit Systems Protection Board has issued a judicially reviewable decision on the merits of the appeal.

`(c) An election under this section shall be made, in writing, in such form and manner as the Merit Systems Protection Board shall by regulation prescribe. The election shall be effective as of the date on which it is received, and the administrative proceeding to which it relates shall terminate immediately upon the receipt of such election.

`Sec. 3330c. Preference eligibles; remedy

`(a) If the Merit Systems Protection Board (in a proceeding under section 3330a) or a court (in a proceeding under section 3330b) determines that an agency has violated a right described in section 3330a, the Board or court (as the case may be) shall order the agency to comply with such provisions and award compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. If the Board or court determines that such violation was willful, it shall award an amount equal to backpay as liquidated damages.

`(b) A preference eligible who prevails in an action under section 3330a or 3330b shall be awarded reasonable attorney fees, expert witness fees, and other litigation expenses.'.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 33 of title 5, United States Code, is amended by adding after the item relating to section 3330 the following:

`3330a. Preference eligibles; administrative redress.

`3330b. Preference eligibles; judicial redress.

`3330c. Preference eligibles; remedy.'.

(a) AMENDMENT TO TITLE 5, UNITED STATES CODE- Paragraph (3) of section 2108 of title 5, United States Code, is amended by striking `the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service, or the General Accounting Office;' and inserting `or the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service;'.

(b) AMENDMENTS TO TITLE 3, UNITED STATES CODE-

(1) IN GENERAL- Chapter 2 of title 3, United States Code, is amended by adding at the end the following:

`Sec. 115. Veterans' preference

`(a) Subject to subsection (b), appointments under sections 105, 106, and 107 shall be made in accordance with section 2108, and sections 3309 through 3312, of title 5.

`(b) Subsection (a) shall not apply to any appointment to a position the rate of basic pay for which is at least equal to the minimum rate established for positions in the Senior Executive Service under section 5382 of title 5 and the duties of which are comparable to those described in section 3132(a)(2) of such title or to any other position if, with respect to such position, the President makes certification--

`(1) that such position is--

`(A) a confidential or policy-making position; or

`(B) a position for which political affiliation or political philosophy is otherwise an important qualification; and

`(2) that any individual selected for such position is expected to vacate the position at or before the end of the President's term (or terms) of office.

Each individual appointed to a position described in the preceding sentence as to which the expectation described in paragraph (2) applies shall be notified as to such expectation, in writing, at the time of appointment to such position.'.

(2) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 2 of title 3, United States Code, is amended by adding at the end the following:

`115. Veterans' preference.'.

(1) DEFINITIONS- For the purposes of this subsection, the terms `covered employee' and `Board' shall each have the meaning given such term by section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301).

(2) RIGHTS AND PROTECTIONS- The rights and protections established under section 2108, sections 3309 through 3312, and subchapter I of chapter 35, of title 5, United States Code, shall apply to covered employees.

(3) REMEDIES-

(A) IN GENERAL- The remedy for a violation of paragraph (2) shall be such remedy as would be appropriate if awarded under applicable provisions of title 5, United States Code, in the case of a violation of the relevant corresponding provision (referred to in paragraph (2)) of such title.

(B) PROCEDURE- The procedure for consideration of alleged violations of paragraph (2) shall be the same as apply under section 401 of the Congressional Accountability Act of 1995 (and the provisions of law referred to therein) in the case of an alleged violation of part A of title II of such Act.

(4) REGULATIONS TO IMPLEMENT SUBSECTION-

(A) IN GENERAL- The Board shall, pursuant to section 304 of the Congressional Accountability Act of 1995 (2 U.S.C. 1384), issue regulations to implement this subsection.

(B) AGENCY REGULATIONS- The regulations issued under subparagraph (A) shall be the same as the most relevant substantive regulations (applicable with respect to the executive branch) promulgated to implement the statutory provisions referred to in paragraph (2) except insofar as the Board may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this subsection.

(C) COORDINATION- The regulations issued under subparagraph (A) shall be consistent with section 225 of the Congressional Accountability Act of 1995 (2 U.S.C. 1361).

(5) APPLICABILITY- Notwithstanding any other provision of this subsection, the term `covered employee' shall not, for purposes of this subsection, include an employee--

(A) whose appointment is made by the President with the advice and consent of the Senate;

(B) whose appointment is made by a Member of Congress or by a committee or subcommittee of either House of Congress; or

(C) who is appointed to a position, the duties of which are equivalent to those of a Senior Executive Service position (within the meaning of section 3132(a)(2) of title 5, United States Code).

(6) EFFECTIVE DATE- Paragraphs (2) and (3) shall be effective as of the effective date of the regulations under paragraph (4).

(d) JUDICIAL BRANCH APPOINTMENTS-

(1) IN GENERAL- Subject to paragraphs (2) and (3), the Judicial Conference of the United States shall prescribe procedures to provide for--

(A) veterans' preference in the consideration of applicants for employment, and in the conduct of any reductions in force, within the judicial branch; and

(B) redress for alleged violations of any rights provided for under subparagraph (A).

(2) PROCEDURES- Under the procedures, a preference eligible (as defined by section 2108 of title 5, United States Code) shall be afforded preferences in a manner and to the extent consistent with preferences afforded to preference eligibles in the executive branch.

(3) EXCLUSIONS- Nothing in the procedures shall apply with respect to an applicant or employee--

(A) whose appointment is made by the President with the advice and consent of the Senate;

(B) whose appointment is as a judicial officer;

(D) whose appointment is to a position, the duties of which are equivalent to those of a Senior Executive Service position (within the meaning of section 3132(a)(2) of title 5, United States Code).

(4) DEFINITIONS- For purposes of this subsection, the term `judicial officer' means a justice, judge, or magistrate judge listed in subparagraph (A), (B), (F), or (G) of section 376(a)(1) of title 28, United States Code.

(5) SUBMISSION TO CONGRESS; EFFECTIVE DATE-

(A) SUBMISSION TO CONGRESS- Not later than 12 months after the date of enactment of this Act, the Judicial Conference of the United States shall submit a copy of the procedures prescribed under this subsection to the Committee on Government Reform and Oversight and the Committee on the Judiciary of the House of Representatives and the Committee on Governmental Affairs and the Committee on the Judiciary of the Senate.

(B) EFFECTIVE DATE- The procedures prescribed under this subsection shall take effect 13 months after the date of enactment of this Act.

Section 347(b) of the Department of Transportation and Related Agencies Appropriations Act, 1996 (109 Stat. 460) is amended--

(1) by striking `and' at the end of paragraph (6);

(2) by striking the period at the end of paragraph (7) and inserting `; and'; and

(3) by adding at the end the following:

`(8) sections 3501-3504, as such sections relate to veterans' preference.'.

(a) IN GENERAL- Subsection (b) of section 2302 of title 5, United States Code, is amended--

(1) by striking `or' at the end of paragraph (10);

(2) by redesignating paragraph (11) as paragraph (12); and

(3) by inserting after paragraph (10) the following:

`(11)(A) knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans' preference requirement; or

`(B) knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans' preference requirement; or'.

(b) DEFINITION; LIMITATION- Section 2302 of title 5, United States Code, is amended by adding at the end the following:

`(e)(1) For the purpose of this section, the term `veterans' preference requirement' means any of the following provisions of law:

`(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with respect to a preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.

`(B) Sections 943(c)(2) and 1784(c) of title 10.

`(C) Section 1308(b) of the Alaska National Interest Lands Conservation Act.

`(D) Section 301(c) of the Foreign Service Act of 1980.

`(E) Sections 106(f), 7281(e), and 7802(5) of title 38.

`(F) Section 1005(a) of title 39.

`(G) Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans' preference requirement for the purposes of this subsection.

`(H) Any regulation prescribed under subsection (b) or (c) of section 1302 and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs.

`(2) Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action).'.

(1) SECTION 1599c OF TITLE 10, UNITED STATES CODE-

(A) REPEAL- Section 1599c of title 10, United States Code, is repealed.

(B) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 81 of such title is amended by striking out the item relating to section 1599c.

(2) SECTION 2302(a)(1) OF TITLE 5, UNITED STATES CODE- Subsection (a)(1) of section 2302 of title 5, United States Code, is amended to read as follows:

`(a)(1) For the purpose of this title, `prohibited personnel practice' means any action described in subsection (b).'.

(d) SAVINGS PROVISION- This section shall be treated as if it had never been enacted for purposes of any personnel action (within the meaning of section 2302 of title 5, United States Code) preceding the date of enactment of this Act.

(a) COVERED VETERANS- Section 4212 of title 38, United States Code, is amended--

(1) in subsection (a)--

(A) by striking out `$10,000' and inserting in lieu thereof `$25,000'; and

(B) by striking out `special disabled veterans and veterans of the Vietnam era' and inserting in lieu thereof `special disabled veterans, veterans of the Vietnam era, and any other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized';

(2) in subsection (b), by striking out `special disabled veteran or veteran of the Vietnam era' and inserting in lieu thereof `veteran covered by the first sentence of subsection (a)'; and

(3) in subsection (d)(1), by striking out `veterans of the Vietnam era or special disabled veterans' both places it appears and inserting in lieu thereof `special disabled veterans, veterans of the Vietnam era, or other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized'.

(b) PROHIBITION ON CONTRACTING WITH ENTITIES NOT MEETING REPORTING REQUIREMENTS- (1) Subchapter III of chapter 13 of title 31, United States Code, is amended by adding at the end the following:

`Sec. 1354. Limitation on use of appropriated funds for contracts with entities not meeting veterans' employment reporting requirements

`(a)(1) Subject to paragraph (2), no agency may obligate or expend funds appropriated for the agency for a fiscal year to enter into a contract described in section 4212(a) of title 38 with a contractor from which a report was required under section 4212(d) of that title with respect to the preceding fiscal year if such contractor did not submit such report.

`(2) Paragraph (1) shall cease to apply with respect to a contractor otherwise covered by that paragraph on the date on which the contractor submits the report required by such section 4212(d) for the fiscal year concerned.

`(b) The Secretary of Labor shall make available in a database a list of the contractors that have complied with the provisions of such section 4212(d).'.

(2) The table of sections at the beginning of chapter 13 of such title is amended by adding at the end the following:

`1354. Limitation on use of appropriated funds for contracts with entities not meeting veterans' employment reporting requirements.'.

Section 4212(d)(1) of title 38, United States Code, as amended by section 7(a)(3) of this Act, is further amended--

(1) by striking out `and' at the end of subparagraph (A);

(2) by striking out the period at the end of subparagraph (B) and inserting in lieu thereof `; and'; and

(3) by adding at the end the following:

`(C) the maximum number and the minimum number of employees of such contractor during the period covered by the report.'.

Passed the Senate October 5 (legislative day, October 2), 1998.

Attest:

Secretary.

105th CONGRESS

2d Session

S. 1021AN ACTTo amend title 5, United States Code, to provide that consideration may not be denied to preference eligibles applying for certain positions in the competitive service, and for other purposes.

END