Lawful authority to exclude potential applicants?

[inquisitive]

To date I have not seen anyone post the obvious question for discussion, so I will. What lawful authority does OPM have to exclude those that received a NOR on 10/30/07 from applying once again under the "open" announcement in an effort to improve their overall score? How is this exclusion of an entire group of 400+ qualified, potential applicants not arbitrary and capricious?

Don't competitive service principles suggest that all qualified, potential applicants should be allowed to apply if they can be within the first 600+ to timely do so?

Recall that the May 4, 2007 vacancy announcement closed on or around May 9, 2007. More than 14 months has elapsed since the May 2007 announcement closed.

Is it not highly likely that many on the current register have accomplishments within the past 14 months that would allow them to score higher now than they did back then? Perhaps someone received various awards or public recognition for their work as an attorney over the past 14 months. One would think that such an attorney could write an AR that describes the recent accomplishment and secure a higher score for the related competency(-ies).

What if within the past 14 months someone on the current register qualified for the very first time for 5 veteran's preference points? Should that individual be excluded from re-applying so as to obtain the benefit of their 5 points as well as their veteran's hiring preference? A mere five point bump could result in a jump over upwards of 75+ individuals on the register.

If anyone is aware of the purported legal authority (e.g. statutory provision or CFR) that authorizes OPM to exclude qualified, potential applicants, then please bring that to the attention of those of us on this forum.

[morgullord]

From the USDVA website:

Veterans preference applies to employment in the following ways:

1. Veterans Recruitment Appointment (VRA)
Veterans who qualify as preference eligibles under VRA are:

A disabled veteran;
A veteran who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge is authorized;
A veteran who, while serving in the Armed Forces, participated in a military operation for which an Armed Forces Service Medal was awarded; or
A recently separated veteran, meaning a veteran last separated from active duty within the last three (3) years.
These veterans are entitled to an additional 5 or 10 points added onto their earned rating in a competitive civil service examination. In all other situations (for example, selection from a merit promotion list or other "internal" action such as reassignment, transfer, or reinstatement), veterans' preference is not a factor.

A basic principle of Federal employment is that all candidates must meet the qualification requirements for the position for which they receive an appointment.

2. Veterans Employment Opportunities Act of 1998 (VEOA)
Veterans who qualify as preference eligibles under VEOA are:

A veteran separated after three (3) or more years of continuous active service performed under honorable conditions;
A veteran who was released shortly before competing a three (3) year tour are considered to be eligible.
This act gave veterans who qualify as preference eligibles and veterans with three (3) or more years of continuous active service access to jobs that might otherwise be closed to them. When an agency advertises for candidates outside its own workforce under merit promotion procedures, it must allow these veterans to apply. Of course, all applications are subject to any area of consideration that the agency has specified on the vacancy announcement. Thus, if the agency will only accept applications from status candidates within the local commuting area, veterans who are outside the commuting area are not eligible.

A basic principle of Federal employment is that all candidates must meet the qualification requirements for the position for which they receive an appointment.

Employment preference eligibility is ascertained when applying for a job...

[inquisitive]

Below is a nice summary as to just how much teeth the veterans' protection legislation truly has. Which again raises the issue, how can OPM deny a person on the current register the right to re-apply today in an effort to claim a 5-point veteran's bump acquired for the first time within the past 14 months?


LAW REVIEW 0761—UPDATE

By Captain Samuel F. Wright, JAGC, USN (Ret.)

In Law Review 0761, I wrote about Isabella v. Department of State, 2006 MSPB 163 (Merit Systems Protection Board June 9, 2006). Section 3312(a)(1) of title 5 of the United States Code [5 U.S.C. 3312(a)(1)] provides that a federal agency is required to waive a maximum age rule with respect to the hiring of a preference-eligible veteran unless the agency can establish that the age limit rule is essential (not just convenient).

Robert P. Isabella is eligible for the five-point veteran’s preference based on having received a campaign medal for active duty service in a qualifying military expedition. In 2004, a few months prior to his 37th birthday, he applied to the Department of State (DOS) for a Diplomatic Security Service (DSS) appointment. DOS refused to process his application, stating that his 37th birthday was fast approaching and that there simply was not time to process Mr. Isabella’s application and get him into a training class by Nov. 8, 2004 (his 37th birthday).

Mr. Isabella made a timely appeal to the Merit Systems Protection Board (MSPB), a quasi-judicial federal agency that adjudicates matters of federal civilian employment. In the cited case, the MSPB firmly rejected the DOS claim that the age-37 rule was essential and held that DOS violated 5 U.S.C. 3312(a)(1) by dismissing Mr. Isabella’s DSS application based on his approaching 37th birthday.

The MSPB remanded the matter to its Administrative Judge, who again ruled for the DOS. Mr. Isabella appealed again to the MSPB. More than a year after its original decision, the MSPB reaffirmed its holding that the age-37 rule cannot lawfully be applied to a preference-eligible veteran and ordered DOS to process Mr. Isabella’s DSS application without regard to the age-37 rule. The MSPB ordered DOS to act promptly (within 20 days after the order) and to process Mr. Isabella’s application to completion, despite the fact that he was then approaching his 40th birthday. Isabella v. Department of State, 2007 MSPB 186 (Aug. 10, 2007).

The Office of Personnel Management (OPM) then intervened, asserting that the MSPB’s decision would have a “substantial impact on a civil service law, rule, regulation, or policy directive.” OPM asked the MSPB to reconsider its decision once again, and another 11 months went by before the MSPB reaffirmed once again its holding that DOS must process Mr. Isabella’s DSS application to completion, without regard to the age-37 rule. Isabella v. Department of State, 2008 MSPB 146 (July 2, 2008). Mr. Isabella is now approaching his 41st birthday, and it is not clear that he even still wants to join the DSS, but this case has important implications for many folks, not just Mr. Isabella.

[pm]

Jul 31, 2008 15:00:18 GMT -5 inquisitive said:

Below is a nice summary as to just how much teeth the veterans' protection legislation truly has. Which again raises the issue, how can OPM deny a person on the current register the right to re-apply today in an effort to claim a 5-point veteran's bump acquired for the first time within the past 14 months?

Like notajudge mentions, I don't think you are looking at the correct issue. The issue is not your right to reapply. You really don't want to reapply. You just want the 5 points. I would write to OPM and ask them how to get your 5 points.