LAW REVIEW 18010 1 January 2018 Can I Use Veterans Preference T Avid a Layff in a RIF? By Captain Samuel F. Wright, JAGC, USN (Ret.) 2 Update n CAPT Sam Wright 8.0 Veterans preference Q: I am a retired Army Reserve Clnel and a life member f the Reserve Officers Assciatin (ROA). I have read with great interest many f yur Law Review articles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA) and ther laws that are especially pertinent t thse wh serve ur cuntry in unifrm. I am particularly interested in Law Reviews 18008 and 18009, the tw mst recent articles in the series, abut hw the federal Veterans Preference Act (VPA) applies t peple like me wh have served fr a career in a Reserve Cmpnent (RC) f the armed frces and wh seek r hld federal civilian jbs. I was brn in May 1951, and I graduated frm high schl in May 1969. I went t cllege and graduated in May 1973. While in cllege, I participated in the Army s Reserve Officers Training Crps (ROTC). When I graduated, I was simultaneusly cmmissined a Secnd Lieutenant. I remained n active duty fr ten years, until May 1983, when I was released frm 1 I invite the reader s attentin t www.ra.rg/lawcenter. Yu will find mre than 1600 Law Review articles abut the Unifrmed Services Emplyment and Reemplyment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Unifrmed and Overseas Citizens Absentee Vting Act (UOCAVA), the Unifrmed Services Frmer Spuse Prtectin Act (USFSPA), and ther laws that are especially pertinent t thse wh serve ur cuntry in unifrm. Yu will als find a detailed Subject Index, t facilitate finding articles abut very specific tpics. The Reserve Officers Assciatin (ROA) initiated this clumn in 1997. I am the authr f mre than 1400 f the articles. 2 BA 1973 Nrthwestern University, JD (law degree) 1976 University f Hustn, LLM (advanced law degree) 1980 Gergetwn University. I served in the Navy and Navy Reserve as a Judge Advcate General s Crps fficer and retired in 2007. I am a life member f ROA. I have dealt with USERRA and the Veterans Reemplyment Rights Act (VRRA the 1940 versin f the federal reemplyment statute) fr 35 years. I develped the interest and expertise in this law during the decade (1982-92) that I wrked fr the United States Department f Labr (DOL) as an attrney. Tgether with ne ther DOL attrney (Susan M. Webman), I largely drafted the prpsed VRRA rewrite that President Gerge H.W. Bush presented t Cngress, as his prpsal, in February 1991. On 10/13/1994, President Bill Clintn signed int law USERRA, Public Law 103-353, 108 Stat. 3162. The versin f USERRA that President Clintn signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is cdified in title 38 f the United States Cde at sectins 4301 thrugh 4335 (38 U.S.C. 4301-35). I have als dealt with the VRRA and USERRA as a judge advcate in the Navy and Navy Reserve, as an attrney fr the Department f Defense (DOD) rganizatin called Emplyer Supprt f the Guard and Reserve (ESGR), as an attrney fr the United States Office f Special Cunsel (OSC), as an attrney in private practice, and as the Directr f the Service Members Law Center (SMLC), as a full-time emplyee f ROA, fr six years (2009-15). Please see Law Review 15052 (June 2015), cncerning the accmplishments f the SMLC. My paid emplyment with ROA ended 5/31/2015, but I have cntinued the wrk f the SMLC as a vlunteer. Yu can reach me by e-mail at SWright@ra.rg.
active duty as a Captain. I affiliated with the Army Reserve shrtly after I left active duty. I als tk a federal civilian jb shrtly after I left active duty in 1983. In the last 35 years, I have mved up steadily in my Army Reserve career and my federal civilian career. I was recalled t active duty in 1990-91 (fr service in Saudi Arabia, Kuwait, and Iraq), in 1997-98 (fr service in frmer Yugslavia), and in 2001-2 (fr INCONUS service in the immediate aftermath f the terrrist attacks f 9/11/2001). I was prmted t Clnel in December 1995. In May 2003, 30 years after I was cmmissined a Secnd Lieutenant, I reached my Mandatry Remval Date (30 years f cmmissined service). I transferred t the Inactive Status List (cllquially called gray area retiree ) until May 2011, when I reached my 60 th birthday and started drawing my Army Reserve retirement mney. While n my final active duty perid, I suffered a serius injury in the line f duty, and I received a 50% disability rating when I retired in May 2003. As a disabled veteran, I believe that I am entitled t ten-pint veterans preference. I am eligible t retire frm my federal civilian jb, but I am nt ready t retire. I want t cntinue wrking fr a few mre years. The federal agency where I wrk is rerganizing and dwnsizing. It is likely that there will be a Reductin in Frce (RIF) in the cming mnths. Am I eligible t use my ten-pint veterans preference t prtect me frm being laid ff in the event f a RIF? A: Pssibly. The VPA des prvide sme prtectin t certain preference-eligible veterans in frestalling layff when a federal agency dwnsizes r rerganizes, but the VPA prtectins in this situatin are much mre limited and restricted than the VPA prvisins that apply t getting hired by the Federal Gvernment in the first place. Mst but nt all federal statutes grant rulemaking authrity t federal executive agencies, t clarify and expand upn the wrds enacted by Cngress. Validly adpted regulatins have the same legal frce and effect as federal statutes, unless a curt finds that the regulatins are cntrary t the intent f Cngress when it enacted the relevant statute. Regarding federal civilian persnnel matters, Cngress has granted brad rulemaking authrity t the United States Office f Persnnel Management (OPM). The VPA prvisins fr veterans preference in the RIF situatin can be fund in sectins 3501 and 3502 f title 5 f the United States Cde (U.S.C.) and in sectin 351.501 f title 5 f the Cde f Federal Regulatins (C.F.R.). The C.F.R. prvisin is as fllws:
(a) Cmpeting emplyees shall be classified n a retentin register n the basis f their tenure f emplyment, veteran preference, length f service, and perfrmance in descending rder as fllws: (1) By tenure grup I, grup II, grup III; and (2) Within each grup by veteran preference subgrup AD, subgrup A, subgrup B; and (3) Within each subgrup by years f service as augmented by credit fr perfrmance under 351.504, beginning with the earliest service date. (b) Grups are defined as fllws: (1) Grup I includes each career emplyee wh is nt serving a prbatinary perid. (A supervisry r managerial emplyee serving a prbatinary perid required by subpart I f part 315 f this title is in grup I if the emplyee is therwise eligible t be included in this grup.) The fllwing emplyees are in grup I as sn as the emplyee cmpletes any required prbatinary perid fr initial appintment: (i) An emplyee fr whm substantial evidence exists f eligibility t immediately acquire status and career tenure, and whse case is pending final reslutin by OPM (including cases under Executive Order 10826 t crrect certain administrative errrs); (ii) An emplyee wh acquires cmpetitive status and satisfies the service requirement fr career tenure when the emplyee's psitin is brught int the cmpetitive service; (iii) An administrative law judge; (iv) An emplyee appinted under 5 U.S.C. 3104, which prvides fr the emplyment f specially qualified scientific r prfessinal persnnel, r a similar authrity; and (v) An emplyee wh acquires status under 5 U.S.C. 3304(c) n transfer t the cmpetitive service frm the legislative r judicial branches f the Federal Gvernment. (2) Grup II includes each career-cnditinal emplyee, and each emplyee serving a prbatinary perid under subpart H f part 315 f this chapter. (A supervisry r managerial emplyee serving a prbatinary perid required by subpart I f part 315 f this title is in grup II if the emplyee has nt cmpleted a prbatinary perid under subpart H f part 315 f this title.) Grup II als includes an emplyee when substantial evidence exists f the emplyee's eligibility t immediately acquire status and careercnditinal tenure, and the emplyee's case is pending final reslutin by OPM (including cases under Executive Order 10826 t crrect certain administrative errrs). (3) Grup III includes all emplyees serving under indefinite appintments, temprary appintments pending establishment f a register, status qu appintments, term appintments, and any ther nnstatus nntemprary appintments which meet the definitin f prvisinal appintments cntained in 316.401 and 316.403 f this chapter. (c) Subgrups are defined as fllws: (1) Subgrup AD includes each preference eligible emplyee wh has a cmpensable service-cnnected disability f 30 percent r mre. (2) Subgrup A includes each preference eligible emplyee nt included in subgrup AD. (3) Subgrup B includes each nnpreference eligible emplyee.
(d) A retired member f a unifrmed service is cnsidered a preference eligible under this part nly if the member meets at least ne f the cnditins f the fllwing paragraphs (d)(1), (2), r (3) f this sectin, except as limited by paragraph (d)(4) r (d)(5): (1) The emplyee's military retirement is based n disability that either: (i) Resulted frm injury r disease received in the line f duty as a direct result f armed cnflict; r (ii) Was caused by an instrumentality f war incurred in the line f duty during a perid f war as defined by sectins 101 and 301 f title 38, United States Cde. (2) The emplyee's retired pay frm a unifrmed service is nt based upn 20 r mre years f full-time active service, regardless f when perfrmed but nt including perids f active duty fr training. (3) The emplyee has been cntinuusly emplyed in a psitin cvered by this part since Nvember 30, 1964, withut a break in service f mre than 30 days. (4) An emplyee retired at the rank f majr r abve (r equivalent) is cnsidered a preference eligible under this part if such emplyee is a disabled veteran as defined in sectin 2108(2) f title 5, United States Cde, and meets ne f the cnditins cvered in paragraph (d)(1), (2), r (3) f this sectin. (5) An emplyee wh is eligible fr retired pay under chapter 67 f title 10, United States Cde, [Reserve Cmpnent Retirement] and wh retired at the rank f majr r abve (r equivalent) is cnsidered a preference eligible under this part at age 60, nly if such emplyee is a disabled veteran as defined in sectin 2108(2) f title 5, United States Cde. 3 T have the right t the ten-pint veterans preference in hiring, althugh yu are receiving the RC retirement (after yur 60 th birthday) in the grade f O-4 r abve, yu nly need t shw that yu have a service-cnnected disability that is a disability that yu sustained in the line f duty while n active duty. T have the right t the ten-pint veterans preference in the RIF scenari, yu must meet a much mre stringent test. Yu must shw that yur disability resulted frm injury r disease received in the line f duty as a direct result f armed cnflict 4 r that yur disability was caused by an instrumentality f war incurred in the line f duty during a perid f war as defined by sectins 101 and 301 f title 38, United States Cde. 5 Fr example, Mary Jnes was n active duty when she was badly injured and disabled in a vehicle accident n a Saturday afternn. Mary was driving her wn vehicle and was perfrming a persnal errand unrelated t her military duties. The accident and the resulting injuries and disability are in the line f duty s lng a Mary was nt in an unauthrized absence situatin at the time and s lng as the accident and injuries were nt the result f Mary s wn miscnduct (like driving while intxicated). In this scenari, a persn like Mary is entitled t the ten-pint veterans preference in hiring but nt in frestalling a layff in case f a RIF. 3 5 C.F.R. 351.501 (emphasis supplied). 4 5 C.F.R. 351.501(d)(1)(i). 5 5 C.F.R. 351.501(d)(1)(ii).
Q: The direct result f armed cnflict rule seems clear enugh. What des the instrumentality f war rule mean? A: Let me answer that by ffering a cncrete example. Bb Jnes and Cnnie Cx are bth active duty sldiers participating, in the line f duty, in live-fire rifle training at a firing range. Because f the negligence (r wrse) f Jnes, Cx is sht and seriusly injured and suffers a service-cnnected disability. A military rifle is an instrumentality f war. Cx suffered her disability due t an instrumentality f war. If the incident ccurred during a time f war, and we are currently in a time f war fr VPA purpses, Cx is entitled t the ten-pint veterans preference in the RIF scenari as well as the hiring scenari. The result wuld be different if Jnes and Cx had been participating, alng with ther sldiers, in a march and if Jnes had negligently pushed Cx dwn the slpe f a hill. The slpe f a hill is nt an instrumentality f war.