A recent case in the United States Court of Appeals for the federal circuit outlined how far veterans' preference requirements extend in hiring.
Dean v. Dep't of Labor (2015) was brought on appeal to the court after the appellant was denied a hearing by the Merit Systems Protection Board (MSPB). David Dean, a preference-eligible veteran, was denied placement into a "recent graduate" position. While the Pathways Program, signed into law by President Barack Obama in 2010, is normally limited to graduates of the past two years, "certain veterans are eligible within six years of obtaining a qualifying degree." Dean was ineligible because he had obtained his degree more than six years ago. The court ruled that the MSPB had validly denied the appeal and had not abused its discretion in doing so.
As outlined in Dean, a federal job applicant or employee is permitted certain preferences as a veteran. 5 U.S.C. § 2302(b)(11) states that an agency shall not "(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."
This permits a veteran to complain about an agency's action to Office of Special Counsel if the agency does not properly execute the veterans' preference laws. It is a prohibited personnel practice to fail to follow the applicable federal rules. However, under federal law, veterans' preference protection expressly does not extend to actions that occur during employment.
Crucially, veterans' preference does not protect veterans from being charged with or disciplined for misconduct. Therefore, charges may be imposed on a veteran federal employee without reference to veteran or non-veteran status.
Federal employees who are eligible for veterans' preference in hiring should be mindful that they are not entitled to this preference when it comes to disciplinary actions. However, employees who believe they are the victims of abuse of the disciplinary process or those who have been denied valid veterans' preference under applicable federal statutes should immediately contact a federal employment law attorney to determine their rights.
Cheri Cannon is a partner at Tully Rinckey PLLC and the former chief counsel to the chairman of the Merit Systems Protection Board. She concentrates her practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
