[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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