Sunday, January 25, 2015

merit promotion process, do not apply veteran preference

The merit promotion process is used when the position is to be filled by an employee of the agency or by an applicant from outside the agency who has "status" in the competitive serviceSee 5 C.F.R. § 335.103(b)(1); see also Perkins v. United States Postal Serv., 100 M.S.P.R. 48, 51 (2005).

status candidates, which means "current competitive service employees."

Veterans' point preferences under the competitive appointment process do not apply in the merit promotion processPerkins, 100 M.S.P.R. at 51. Congress has provided, however, that "for all merit promotion announcements . . . veterans . . . are eligible to apply."5 U.S.C. §§ 3304(f)(3)-(4). Veterans "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."5 U.S.C. § 3304(f)(1). Congress further provided, however, that the latter provision does not "confer an entitlement to veterans' preference that is not otherwise required by law."5 U.S.C. § 3304(f)(3).

under the merit promotion process, the requirement to appoint a veteran who is at the top of the list did not apply

Congress adopted a different approach in dealing with veterans and merit promotion. It guaranteed veterans only a right to apply and an opportunity to compete for such positions. It said nothing about the basis upon which the agency could make its selection.

The critical statutory provision is 5 U.S.C. § 3304(f)(1), which was added to the veterans statutes by the Veterans Employment Opportunity Act of 1998 ("VEOA"). It provides that "all merit promotion announcements . . . shall indicate that . . . veterans . . . are eligible to apply . . ." and that specified categories of veterans
may not be denied the opportunity to compete for vacant positions for which the agency . . . will accept applications from individuals outside its own work-force under merit promotion procedures.
provision entitles veterans to is "the opportunity to compete for vacant positions" to be filled "under merit promotion procedures."

an employee is not entitled to veterans' preference in the merit promotion process." Perkins, 100 M.S.P.R. at 51.

The [Commission] gave Mr. [Joseph] the opportunity to compete for the . . . vacant position[;] the VEOA did not require that the [Commission] give Mr. [Joseph] a position if he scored the most points. . . . In short, Mr. [Joseph] had the opportunity to compete and did compete; the [Commission's] decision . . . to fill the position [through the merit system rather than through the competitive process] did not violate Mr. [Joseph's] rights under the VEOA.

 5 C.F.R. § 211.102(c), veterans' preference does not apply to merit promotion actions

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