The Dead Letter Veterans Preference Act: How the Federal Government Is Failing to Lead by Example in Hiring Veterans

• Publication year: 2022

46 Creighton L. Rev. 343. THE DEAD LETTER VETERANS PREFERENCE ACT: HOW THE FEDERAL GOVERNMENT IS FAILING TO LEAD BY EXAMPLE IN HIRING VETERANS

THE DEAD LETTER VETERANS PREFERENCE ACT: HOW THE FEDERAL GOVERNMENT IS FAILING TO LEAD BY EXAMPLE IN HIRING VETERANS

KENT A. EILER(fn*)

The issue of veterans' unemployment is receiving considerable attention with the U.S. economy in its longest slump in decades. As U.S. involvement in the wars of Afghanistan and Iraq comes to a close, and the drawdown of service-members from all branches of the U.S. military seems imminent, many observers worry veteran unemployment will increase. The reported unemployment rate for Gulf War II veterans has, according to the Bureau of Labor Statistics, ping-ponged back and forth: from 8.9% in July 2012,(fn1) spiking upward again to 10.9% in August 2012,(fn2) and down again to 9.7% in September 2012;(fn3) these statistics are well above the general population's unemployment rate that is around 8%.(fn4) Politicians on all sides of the political spectrum claim to support action that will alleviate veteran unemployment and assert veterans bring invaluable skills to the civilian workforce. In this environment, one would think the federal government itself would take whatever steps it could to hire veterans. In practice, however, neither the executive branch nor the legislative branch has undertaken meaningful steps to maximize the federal government's role as a model employer. Congress has not passed significant legislation on the federal government's hiring practices since 9/11. Additionally, the federal government's Office of Personnel Management ("OPM") has designed rules for the government's hiring practices that effectively strip veterans of preference when they apply to a broad range of positions in the executive branch.

In Part I, this Article will discuss the modern legal landscape Congress designed to encourage and require the hiring of veterans by the federal government.(fn5) Part II of this Article will discuss the executive branch's application of the law to the federal government's hiring practices-focusing on the key role OPM plays.(fn6) Finally, Part III of this Article will suggest steps both the executive and legislative branch could take, respectively, to close the gap between political rhetoric and real action on veteran employment.(fn7)

I. CONGRESSIONAL ACTION ON THE EMPLOYMENT OF VETERANS IN THE FEDERAL GOVERNMENT

Congress cannot compel private businesses to hire veterans; it can only encourage and cajole the private sector with incentives.(fn8) At least some of the federal government's initiatives to encourage the hiring of veterans in the private sector have been praised as successful.(fn9) Ultimately, the decision whether to hire a veteran rests with the individual employer in the private sector. By contrast, Congress can, and has required the federal government as an employer, to take advantage of the skill sets offered by veterans.

A. THE VETERANS PREFERENCE ACT OF 1944

Though preference has been given to veterans since the Civil War, the Veterans Preference Act of 1944(fn10) ("Veterans Act"), which incorporated prior legislation, remains the defining federal law today dealing with what government agencies must consider when filling an available vacancy.(fn11) The Veterans Act identified that preference is to be given to veterans as a reward for patriotic duties by a grateful country that recognizes the sacrifices made by these veterans. Preference, as applied by the Veterans Act, includes positions in the classified civil service (now the competitive service); the unclassified civil service (positions excepted from the competitive service); the civil service of the District of Columbia; and in any temporary or emergency establishment, agency, bureau, administration, project, and department created by acts of Congress or presidential executive order.(fn12)

Of course, the granting of preference to one group meant the denial of preference in hiring other groups. Nevertheless, the grant of preference to veterans by Congress has, when challenged, been repeatedly upheld by courts.(fn13) For instance, two years after the passage of the Veterans Act, the United States Supreme Court, in Fishgold v. Sullivan Drydock & Repair Corp.,(fn14) held that veteran legislation "is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need."(fn15)

Congress incorporated the Veterans Act into title five of the United States Code(fn16) ("U.S.C.") titled, "Government Organization and Employees," upon title five's enactment in 1966. At that time, the classified civil service became what is still-known today as the competitive service, and the unclassified civil service became what is still-known today as the excepted service.(fn17) Under this section of the U.S.C., Congress outlines the rules for the examination, certification, and appointment of civil servants for the competitive service.(fn18)

Under these rules, not every veteran is automatically eligible for preference.(fn19) To qualify for preference, a veteran must have served honorably, as evidenced by nothing less than a discharge under honorable conditions.(fn20) Additionally, there is a minimum amount of time he or she must have served on active duty during wartime hostilities in order to qualify.(fn21) In the competitive service, the job candidate with the highest number of points will typically, though not necessarily, be awarded the vacancy.

Today, a veteran can receive an additional five to ten points to his or her examination for entrance into the competitive service by meeting the qualifications discussed above(fn22) and receiving a passing grade on the examination.(fn23) The nature of the veteran's service will determine whether they receive five to ten additional points on their examination.(fn24) For example, a veteran who has served during a time of hostilities for at least six months receives five points.(fn25) In contrast, a veteran who is awarded a Purple Heart receives ten points.(fn26) Though the Veterans Act remains an active law on the books, Part II of this Article demonstrates how the executive branch's interpretation of the Veterans Act has quietly, but certainly, weakened the federal government's preference to hire veterans and in many instances rendered the Veterans Act moot.(fn27)

B. THE CIVIL SERVICE REFORM ACT

In 1978 Congress passed the Civil Service Reform Act,(fn28) which restructured the federal government's civil service. The U.S. Civil Service Commission disappeared and its functions were taken over by three separate agencies: the Office of Personnel Management ("OPM"), the Merit Systems Protection Board ("MSPB"), and the Federal Labor Relations Authority.(fn29) Congress specifically charged OPM with administering the merit system under which applicants competed for competitive service positions in the federal government.(fn30)

The Civil Service Reform Act was also notable in its creation of a new civil servant category, the civil servant category of senior executive service ("SES").(fn31) Congress designed SES to be a corps of senior executives selected for their leadership qualifications who would serve in "key positions just below top Presidential appointees."(fn32) SES members were to act as the link between "appointees and the rest of the Federal work force."(fn33) Congress did not address the role of veteran preference in the SES, and thus veteran preference plays no formal role in the selection of civil servants in the SES.

C. THE UNIFORMED SERVICE EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT OF 1998

Congress has taken some positive steps in assisting veterans dealing with the pressing problem of unemployment. Specifically, it passed the Uniformed Services Employment and Reemployment Rights Act of 1994(fn34) ("USERRA") and the Veterans Employment Opportunities Act of 1998(fn35) ("VEOA") to assist veterans, reservists and members of the National Guard. Under USERRA, returning service-members have to be reemployed in the job they would have retained had they not been absent because of their military service. in doing so, USERRA bolstered the reemployment rights of veterans and reservists working in the federal, state, and private sectors.(fn36) Additionally under this law, the Department of Labor had to provide assistance to all veterans with preference eligibility who claimed their veterans' preference was violated.(fn37) If the resolution of a claim proved unsuccessful following an investigation, the returning service-member could have his or her claim referred to the Department of Justice for consideration of representation in the appropriate district court.(fn38)

Under VEOA, veterans are allowed to apply for competitive service vacancies that are only listed as open to current competitive service employees.(fn39) Additionally, VEOA provided the Merit Systems Protection Board ("MSPB") jurisdiction to adjudicate claims that federal agencies violated veterans' preference rights, under the Veterans Preference Act of 1944(fn40) ("Veterans Act"), of federal employees and applicants.(fn41) Despite these steps to improve the problem, veteran unemployment remains unacceptably high and veterans made up just barely over a quarter of the new hires by the federal government in fiscal year 2010 and...