U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Fonda Brown, Alphonso Adams, and Angela Hapier v. Department of Veterans Affairs, Nos. 00-3278, -3313, -3314 (Fed. Cir., April 18, 2001).

Neither the Veterans Preference Act (VPA) nor the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) accord veterans preference for promotions and intra-agency transfers.

Ms. Brown, a disabled veteran entitled to a ten-point veterans' preference, was a DVA Medical Clerk. In April of 1999, she applied for a promotion to the position of Program Support Assistant within the DVA. On June 28, 1999, the DVA informed her that although she was qualified for the position, she was not selected. The DVA did not accord Ms. Brown any veterans' preference points when it considered her application.

Ms. Napier was a Lead Secretary at the DVA Medical Center. In February of 1999, she applied for a promotion to the position of Contract Specialist. On April 6, 1999, she was informed that although she was qualified for the position, she had not been selected. The DVA did not accord Ms. Napier any veterans' preference points when it considered her application.

Mr. Adams was a DVA Police Officer at the DVA Medical Center. In April of 1999 he applied for a promotion to the position of Supervisory Police Officer. On May 17, 1999, the DVA informed him that he would not be considered for the position because he did not meet time and grade requirements.

The appellants filed petitions for remedial action with the Merit Systems Protection Board claiming that the DVA disregarded their preferred status in violation of veterans preference law. The petitioners claimed that the DVA violated numerous statutory provisions regarding veterans' preference, including 38 U.S.C. § 4214(a). The administrative judge held that Ms. Brown is not entitled to any preference "when seeking promotions or transfers within a department of the government." The AJ concluded that veterans receive preference only when "seeking initial appointment or retention in employment." Similarly an AJ held that neither Ms. Napier nor Mr. Brown are entitled to any preference because they sought promotions.

The appellants petitioned the Federal Circuit for review of the MSPB decisions arguing that the Board improperly interpreted 38 U.S.C. § 4214(a) by holding that they do not receive preference "when seeking promotions or transfers."

Upon review, the Federal Circuit concluded that there is no dispute that the granting of preference to veterans in certain aspects of public employment is an established principle of law. Under the Veterans Preference Act of 1944, veterans may be accorded special point and service credit preference. However, veterans are not accorded limitless rights and benefits. In Crowley v. United States, 527 F.2d 1182, (Ct. Cl. 1975) the Court of Claims declined to accord veterans preference under the VPA stating: "[T]here is perhaps no principle more settled in this area of the law than that promotion and non-promotion of employees within a department or agency of the Government is a matter of supervisory discretion not ordinarily subject to judicial review."

Courts also have determined that under the VPA, veterans preference "does not apply to an employee's transfer or other intra-agency movement." Veterans preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency. Nether the VPA nor the associated regulations accord veterans preferential treatment in promotions. The court went on to consider and reject the appellant's reliance on VEVRAA, a 1974 act (38 USC § 4214(a)) which guarantees the rights of employees called into military service to return to their old jobs and requires certain employers to provide employment opportunities for veterans of the Vietnam War era. The court held that VEVRAA, like the VPA, accords preference only for initial appointment.

The court affirmed the proposition established in Crowley, namely that veterans are not accorded any preference when seeking promotion or intra-agency transfers. The court affirmed the decision of the Board.