Deadline for Vets to file VEOA Complaints with DOL

[inquisitive]

Tolling of Deadlines for Filing Veterans Preference Complaints

In Kirkendall v. Department of the Army, No. 05-3077, (Fed. Cir. Mar. 7, 2007), the Court of Appeals for the Federal Circuit issued a split en banc decision that allowed "tolling" or extension of deadlines for complaints filed under the Veterans Employment Opportunities Act (VEOA). Additionally, the court found that veterans who allege violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are entitled to a hearing by the Merit Systems Protection Board (MSPB).

In general, the VEOA grants veterans points on selection lists and other advantages when applying for federal employment. The USERRA allows for veterans to sue any employer that has discriminated against them due to their veteran status.

John E. Kirkendall, a 100 percent disabled veteran, applied for a position as Supervisory Equipment Specialist (Aircraft), with the Department of the Army. Kirkendall's service and disability entitled him to a 10-point preference. On January 5, 2000, Kirkendall discovered that the Army did not select him for the position. Kirkendall filed several complaints against the Army contesting his non-selection, but the Army did not change its employment decision. On April 29, 2001, Kirkendall filed a formal complaint with the Veterans' Employment and Training Services (VETS) of the Department of Labor, the office responsible for investigating alleged violations of VEOA. On November 29, 2001, VETS rejected Kirkendall's complaint because it was untimely.

If a veteran suspects that a federal employer has violated the VEOA preference regulations, he or she must file a complaint with VETS within 60 days of the alleged violation. 5 U.S.C. 3330a(a)(2)(A). After the filing a complaint, VETS will investigate and make a determination on whether the agency violated the VEOA. Congress granted VETS 60 days to make a decision. If the veteran is not satisfied with the VETS decision, he or she may appeal the VETS decision to the MSPB under two situations. First, if VETS does not issue a decision within 60 days of the complaint, the veteran may file an appeal anytime after the 61st day. However, if VETS issues a decision, the veteran must file an appeal within 15 days after receiving the decision.

If the description of the VEOA deadlines was confusing to you, you are not alone. In the Kirkendall opinion, the court recognized that not all veterans would be aware of the VEOA or understand the deadlines for filing a VEOA complaint. The court also found it was relevant that Kirkendall did not have the benefit of legal representation. The court concluded that even though Kirkendall missed both the 60-day deadline to file a complaint with VETS and the 15-day deadline to appeal the VETS decision with the MSPB, his appeal with the MSPB would be reinstated for a decision on the merits.

In the Kirkendall opinion, the court recognized that when Congress enacted the VEOA, it was "an expression of gratitude by the federal government to the men and women who have risked their lives in defense of the United States" and that it "should be liberally construed for the benefit of those who left private life to serve their country in its hour of great need." Although the court allowed for the possibility of excusing deadlines under the VEOA, the court did not specifically identify situations when the VEOA deadlines would be tolled.

Because of this continuing ambiguity, veterans should familiarize themselves with the protections granted to them. If you are a veteran and suspect (1) a federal employer has failed to afford you the requisite preference under the VEOA or (2) any employer has discriminated against you based on your veteran status under the USERRA, you should contact an attorney with knowledge of these complex laws.

This article also appears in FEDweek (www.fedweek.com), a weekly newsletter for federal employees.

[inquisitive]

If you have not already done so, all preference eligibles that believe you were improperly passed over in favor of a non-preference eligible during the SSA ODAR ALJ selection process should write OPM and formally request a copy of the "reasons submitted by [SSA] in support of the [] passover, and the findings of [OPM]." See 5 U.S.C. Section 3318(b)(3).



From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]

[CITE: 5 USC 3318]


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III--EMPLOYEES

Subpart B--Employment and Retention

CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT

Sec. 3318. Competitive service; selection from certificates

(a) The nominating or appointing authority shall select for
appointment to each vacancy from the highest three eligibles available
for appointment on the certificate furnished under section 3317(a) of
this title, unless objection to one or more of the individuals certified
is made to, and sustained by, the Office of Personnel Management for
proper and adequate reason under regulations prescribed by the Office.

(b)(1) If an appointing authority proposes to pass over a preference
eligible on a certificate in order to select an individual who is not a
preference eligible, such authority shall file written reasons with the
Office for passing over the preference eligible. The Office shall make
the reasons presented by the appointing authority part of the record of
the preference eligible and may require the submission of more detailed
information from the appointing authority in support of the passing over
of the preference eligible. The Office shall determine the sufficiency
or insufficiency of the reasons submitted by the appointing authority,
taking into account any response received from the preference eligible
under paragraph (2) of this subsection. When the Office has completed
its review of the proposed passover, it shall send its findings to the
appointing authority and to the preference eligible. The appointing
authority shall comply with the findings of the Office.

(2) In the case of a preference eligible described in section
2108(3)(C) of this title who has a compensable service-connected
disability of 30 percent or more, the appointing authority shall at the
same time it notifies the Office under paragraph (1) of this subsection,
notify the preference eligible of the proposed passover, of the reasons
therefor, and of his right to respond to such reasons to the Office
within 15 days of the date of such notification. The Office shall,
before completing its review under paragraph (1) of this subsection,
require a demonstration by the appointing authority that the passover
notification was timely sent to the preference eligible's last known
address.

(3) A preference eligible not described in paragraph (2) of this
subsection, or his representative, shall be entitled, on request, to a
copy of--
(A) the reasons submitted by the appointing authority in support
of the proposed passover, and
(B) the findings of the Office.

(4) In the case of a preference eligible described in paragraph (2)
of this subsection, the functions of the Office under this subsection
may not be delegated.
(c) When three or more names of preference eligibles are on a
reemployment list appropriate for the position to be filled, a
nominating or appointing authority may appoint from a register of
eligibles established after examination only an individual who qualifies
as a preference eligible under section 2108(3)(C)-(G) of this title.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 421; Pub. L. 90-83, Sec. 1(8),
Sept. 11, 1967, 81 Stat. 197; Pub. L. 95-454, title III, Sec. 307(d),
title IX, Sec. 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1148, 1224.)

[pm]

If you're thinking about doing this you might want to first try to understand what it means to pass over a preference eligible. This topic has been obliquely discussed at length lately and it's very clear that many do not have a clue what it means. Many believe that any time a veteran doesn't get an offer, that it's a situation involving passing over a preference eligible.

Otherwise, people are going to make these requests and be shocked and amazed to find out that no written reasons exist for their failure to receive an offer. Then there will be even more conspiracy theories trotted out on the two boards.