Tuesday, February 03, 2015

PPP11,veteran preference, MSPB can't order corrective action

May MSPB order corrective action based on a violation of 2302(b)(11)?

No.  Interestingly, along with 2302(b)(11), VEOA also added subsection 2302(e)(2), which states that:

Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11).  Nothing in this paragraph shall be considered to affect any authority under section 1215 (relating to disciplinary action). 
Therefore, unlike other PPPs, the Board may not order corrective action under 2302(b)(11).  Legislative history does not specifically address why Congress enacted subsection 2302(e)(2).  However, MSPB does have authority under VEOA and the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) to order relief where agencies have violated various veterans’ rights.  Therefore additional authority to do so under 2302(b)(11) might have been viewed as unnecessary or confusing.  The Board’s authority to order a VEOA remedy based upon a violation of 2302(b)(11) remains an open question.  See Villamarzo, 92 M.S.P.R. at 164 n. 2. 

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