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  • #46
    Originally posted by GreenLine View Post
    So once again, the "done deal" as far as age requirements for all fed agencies is legislation, not a single MSPB decision.
    The legislation HAS been passed. The agencies are not implementing it. How many cases do you think will go before the MSPB with a positive outcome for the vet before the MSPB goes back on itself to force a decision from a court or come out with instructions to all agencies that they must follow the law in all cases.
    But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security.

    For the intelectually challenged: If the government screws the people enough, it is the right and responsibility of the people to revolt and form a new government.

    Comment


    • #47
      (1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position;
      That is the law. Please note the portion in bold though, and also please note that the reason the mandatory retirement age for those jobs exists, is because it was decided the age requirement was essential to the performance of the duties of those positions.

      If any agencies want to continue fighting this, and there is a decent chance some will, then this far from a "done deal."

      Greenline is correct, the MSPB ruling is not "law", and the decisions on matter of law, including the law that creates the special LE/firefighter/ATC retirement and mandatory retirement age, has not been conclusively decided.

      Again, for those folks hoping to get on after age 36 (again, you guys realize that's the magic number right?), I hope this helps you. However, do not bury your head in the sand, and pretend there is no risk of the age restriction staying in place.

      Comment


      • #48
        SA13 and Greenline. I know I said I wouldn't beat the horse any more but I think you both are missing the point. First off no one is saying that the MSPB ruling is law. The Law is in title 5 of the U.S. code which says that unless agencies can show that age (in this case 37) is essential to performing the job then they shall waive the age requirements for preference eligibles. I think we can all agree that the U.S. Code is law correct? My question which neither of you thus far has answered is how can an agency argue and prove that age (againg being 37) is essential to performing the job when there are people 50 and older that are currently on the job. Wait wait, I know,being 37 or below is not essential to perform the job its only essential to make it through the Criminal Investigator course at FLETC and then agency specific training right because it is so physically demanding. 50 year old agents don't have to worry about doing anything physically demanding right?

        So please explain to me how age (being 37)is essential to performing the job. That's a simple enough question. We're just a bunch of average joes kicking an idea around. We're not discussing the minimum retirement age or anything like that because the U.S. code doesn't address that, simply whether being 37 or below is essential to being hired to perform as an 1811.

        13 you left a little bit off of the quote from title 5 that you pasted above. Obviously being over 60 or so would make it a little hard to perform as an 1811 but how does that equate to someone 38 not being able to do the job. Again we are not talking about whether they can retire with 20 years by the mandatory retirement age. I am sure that you all know one or two people that came on at whatever age and then after several years decided to move on to something else. Or should agencies only hire people that can and will be able to do a minimum of twenty years? Good luck with that one. I can see the vacancy announcement now "if you aren't young enough for us to get 20years out of you before you reach the mandatory retirement age then don't bother applying"

        Once the appeals court for the Federal Circuit hears one of these cases and renders a decision then even more of a precedence will be set and I don't think that MSPB, OPM or anyone else will continue to let agencies waste time continuing to bring individual cases before a hearing body whether it being quasi judicial (MSPB) or an actual judicial body. The existing policies will be changed and re-written so that it is perfectly clear. Again we are only talking about a small segement of the population that this even applies to.
        Last edited by DSS Hopeful; 12-28-2008, 03:17 PM.

        Comment


        • #49
          The legislation HAS been passed.
          It has? If that were the case, agency hiring rules regarding age wouldn't stand where they do today. Until the current law that dictates age limits for 6c/12d covered positions is overturned, we're looking at the same ballgame we've always been looking at, albeit with the rights of an individual giving some people a glimmer of hope if they want to fight their way through the MSPB system.

          My question which neither of you thus far has answered is how can an agency argue and prove that age (againg being 37) is essential to performing the job when there are people 50 and older that are currently on the job.
          I have not attempted to answer your question because I agree with you; 37 is NOT essential to being able to perform the job. I never argued that. What I DID say was that agencies will fight a gov't wide change in required age not because an agent has to be "younger" to do the job, but because it likely means that those on the job today will be required to work longer. You can't fill up the space on the ground floor without raising the cieling. There was never any point that I missed - it's just that the one you're making is different from mine; that an MSPB decision (which covers ONE person, only) and existing law (which applies to everyone) are two different things, and the former cannot trump the latter, hence the nonexistnce of this so-called "done deal."

          Once again, getting rid of this age limit is not as simple as some people seem to think it is. People who are far above the paygrades of any of us are going to have to hash this out, and it's highly likely that many of them will have never been 6c/12d-covered, to begin with, so they'll understand it even less than the agencies who implement it.
          "Sir, does this mean that Ann Margaret's not coming?"

          Comment


          • #50
            DSSHopeful, you're being a bit of a jerk about this, and deliberately obtuse. NO ONE is claiming that 37, 38, 39 or 42 is too old to do the job. HOWEVER, the claim has been made repeatedly that 57 is too old to do the job, not by anyone here, but by the people who established the mandatory retirement age of the 57th birthday. That mandatory retirement age is tied to a requirement that to get the retirement you must serve a minimum of 20 years in a "covered" position, which means a person must be hired and working in a "covered" job prior to their 37th birthday. That is the point that YOU are ignoring.

            You can make your snide remarks about how strenuous FLETC or working as an 1811 are, but the reality is there is a long established mandatory retirement age.

            Again, I hope this all works out as planned, and you get the job you want. However, your repeated claims that this is a "done deal" are not correct. There is the very real possibility that the MSPB ruling could be challenged, or future challenges will be made by other agencies when applicants over age 36 push the issue.

            But hey, you don't need to convince me, I'm not in HR at DSS, or any other agency for that matter, and I am not part of OPM, the MSPB, or a judge on the relevant Circuit Court of Appeals.

            I'm done, as you refuse to listen to logic on this topic.

            However, I'll leave you with this bit of advice since you may soon be working in LE. Interpreting and applying the law is not nearly as simple and straightforward as you are making it out to be here, whether it's that section of Title 5 or any other statute. You might want to figure that out before you start trying to apply the law to real world situations.

            Good luck.
            Last edited by SA13; 12-28-2008, 08:09 PM.

            Comment


            • #51
              Employment Vs. Retirement Age

              Originally posted by SA13 View Post
              not by anyone here, but by the people who established the mandatory retirement age of the 57th birthday. That mandatory retirement age is tied to a requirement that to get the retirement you must serve a minimum of 20 years in a "covered" position, which means a person must be hired and working in a "covered" job prior to their 37th birthday. That is the point that YOU are ignoring.

              You can make your snide remarks about how strenuous FLETC or working as an 1811 are, but the reality is there is a long established mandatory retirement age.

              Again, I hope this all works out as planned, and you get the job you want. However, your repeated claims that this is a "done deal" are not correct. There is the very real possibility that the MSPB ruling could be challenged, or future challenges will be made by other agencies when applicants over age 36 push the issue.

              But hey, you don't need to convince me, I'm not in HR at DSS, or any other agency for that matter, and I am not part of OPM, the MSPB, or a judge on the relevant Circuit Court of Appeals.

              I'm done, as you refuse to listen to logic on this topic.

              However, I'll leave you with this bit of advice since you may soon be working in LE. Interpreting and applying the law is not nearly as simple and straightforward as you are making it out to be here, whether it's that section of Title 5 or any other statute. You might want to figure that out before you start trying to apply the law to real world situations.

              Good luck.
              I agree the key here is not the age you start at, but the age your eligible for retirement at..... this was discussed in the case and retirement age can not be the sole determinant. However, many 6c jobs have already raised their age at some point or have the authority to raise their hiring age to 40. I think we will need to look at how veterans service time links into 6c retirement (NOT SURE, anyone know)

              I think this ruling applies to all government agencies not excluding any, as per a Attorney Advisor I spoke with... it is a matter of veterans standing up for their rights now. I imagine it will get a lot easier under the new administration. keep in mind it was decided by "The Board" therefore is precedent's in other decisions to follow.

              One would believe Industrial psychologist and other Social Scientist dealing with Human factors just got employment security to research and prove for each agency that the age limit is a business necessity.

              Comment


              • #52
                I'm sure it was already pointed out. The starting age is a retirement requirement not a job requirement. There is no exemption or provision for a person to be able to retire. The law only addresses age in relation to a persons ability to perform the job, not retire from it.

                Greenline--A copy of the legislation has been posted in this thread. It clearly states that age cannot be used when determining if a Vet is able to perform a job in the competitive service. I do believe when the law was passed the major hiring initiatives now in existence were not even thought of, there was mostly competitive service and that was it. Since then, the government has started new hiring programs that they consider "non-competitive" service. I think many of these programs will be included in the section of law we are discussing if their hiring practices are taken to task. Some of the unions are already arguing their point to federal judges in an attempt to bring back the power of the vets.
                But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security.

                For the intelectually challenged: If the government screws the people enough, it is the right and responsibility of the people to revolt and form a new government.

                Comment


                • #53
                  However, many 6c jobs have already raised their age at some point or have the authority to raise their hiring age to 40.
                  You're correct in that some agencies have raised their limits, but those who have done so have simply applied a waiver to the existing law and by granting such, they are agreeing to allow those individuals to work up until age 60 to get in their 20 years. This does not affect the minimum retirement age of anyone else in the agency.

                  Agencies have always been able to grant waivers and they've always been few and far between and only to individuals. Only recently have they been applied agency-wide.

                  An important point to remember that is anyone hired by one of these agencies under such a waiver will be "stuck" there unless they apply to another agency which is likewise willing to grant them the same waiver and allow them to work until age 60. Not a huge deal, especially if you like where you're at, but it's something to consider.

                  Greenline--A copy of the legislation has been posted in this thread.
                  If you're talking about VEOA, that is not legislation that will remove the currrent policy, because again, the current policy is NOT just about a certain age being required to physically do the job on the front end of one's career. It's also about the mandatory retirement age and people needing to be able to work 20 years. VEOA has no power to remove that mandatory retirement age, which is what needs to occur before the mandatory entry age can be challenged. VEOA also applies only to veterans, so it's severely limited in that respect. Any legislation that removes this age requirement will have to apply to everyone in a covered position, and there's no way on earth that a law applying to veterans, only, can be used to remove existing restrictions on non-veterans.

                  There's a lot of talk here about how a 39, 40, 41 year-old can easily do this job, PT, and what not. That's all very true, but no one thinks about the opposite end of the spectrum. You may have a different opinion when you get hired and see a 59 or 60-year-old agent who really can't do it anymore (mentally or physically), but who is hanging on because he or she got a waiver back in the day that the agency is required to honor. When you have to think about THAT person backing you up, you might consider this entire conversation in a different light. And no bringing up the argument that agents should have mandatory PT tests to determine continued job suitability, because THAT kind of standard has failed to get legally implemented for even longer than people have been challenging the age requirements. You'll see age standards go away LONG before you'll see job-dependent PT testing.
                  "Sir, does this mean that Ann Margaret's not coming?"

                  Comment


                  • #54
                    Greenline,

                    "current policy" is not in compliance with the law (VEOA is the law) - MSPB is not legislation, as you have pointed out, but an adjudicating body which resolves differing interpretations of the law and (specifically) whether federal agencies are in compliance with the law in question.

                    MSPB has already ruled that DOS/DSS was not in compliance with VEOA in the Isabella case (which now is a part of case law related to VEOA - something I believe you are overlooking).

                    You are correct that FBI/USSS/ATF/DEA have retained their own age limits and that this is "current policy." I believe that this "current policy" represents an explicit violation of VEOA, and I believe that MSPB will rule against each of these agencies as specific grievances are filed against them by vet pref applicants.

                    As has been stated repeatedly, VEOA (which is the "law") mandates that maximum age limits must be waived for vet pref applicants unless it can be demonstrated that the age requirement is essential to the performance of the job - that is the only exception provided for in the retention of the age restriction in VEOA.

                    Please note that VEOA does not grant an exception to retain age limits because a 37+ applicant will not be able to retire at 57 so all of the arguments about the mandatory retirement age are irrelevant to this discussion.

                    Additionally, it has already been pointed out that a 37+ vet pref applicant could still retire at 57 by paying into the retirement fund a predetermined lump sum in order to make up for the # of lost years. If I am not mistaken, VEOA has a provision for this very circumstance. Further, other LE agencies allow for this, so this isn't as insurmountable of a problem as you and the others seem to believe (e.g., Illinois State Police, which also has a Mandatory Retirement Age, allows for this for vets).

                    Originally posted by GreenLine View Post
                    If you're talking about VEOA, that is not legislation that will remove the currrent policy, because again, the current policy is NOT just about a certain age being required to physically do the job on the front end of one's career. It's also about the mandatory retirement age and people needing to be able to work 20 years. VEOA has no power to remove that mandatory retirement age, which is what needs to occur before the mandatory entry age can be challenged. VEOA also applies only to veterans, so it's severely limited in that respect. Any legislation that removes this age requirement will have to apply to everyone in a covered position, and there's no way on earth that a law applying to veterans, only, can be used to remove existing restrictions on non-veterans.

                    There's a lot of talk here about how a 39, 40, 41 year-old can easily do this job, PT, and what not. That's all very true, but no one thinks about the opposite end of the spectrum. You may have a different opinion when you get hired and see a 59 or 60-year-old agent who really can't do it anymore (mentally or physically), but who is hanging on because he or she got a waiver back in the day that the agency is required to honor. When you have to think about THAT person backing you up, you might consider this entire conversation in a different light. And no bringing up the argument that agents should have mandatory PT tests to determine continued job suitability, because THAT kind of standard has failed to get legally implemented for even longer than people have been challenging the age requirements. You'll see age standards go away LONG before you'll see job-dependent PT testing.
                    Last edited by ilparkcop; 12-29-2008, 07:53 PM.

                    Comment


                    • #55
                      let me ask this, what does this do for your retirement at 57?

                      in other words, if you come in after 37/57 or 40/60 for the few, do you still receive 12d retirement coverage (1.7%) or is it at the (1%) non-covered rate of retirement?

                      I have seen people in LEO (12d0 positions but not receiving the 12d retirement coverage.

                      Comment


                      • #56
                        "current policy" is not in compliance with the law (VEOA is the law)
                        While VEOA is certainly a law, it is not the law that removes agency age restrictions for everyone over 37. It can't, even if someone wanted to use it that way, because it only applies to veterans. The issue with DSS is a waiver, only. It may be an agency-wide one, but a waiver it still is - as in the law hasn't been changed. If it HAD been changed, it'd be a lot bigger news and there'd be a lot more conversations on it than the 3 whole pages we have going in an online internet message board. There would also be no stated age limits in any of the thousands of current agency vanacy announcements or the same old age requirements listed on their websites.

                        Mandatory retirement age is not "irrelevant" to this discussion and the idea that it could be is naive, to say the least. Once again, you gotta be able to work 20 years, and you can't have extra years added at the outset of a career without adding them at the end and have it still add up to 20. The reason agencies like DSS and the Border Patrol are doing it is, again, because they're granting a waiver and allowing people they hire at 40 to work until 60, and because it's a waiver for them, only, it doesn't affect the mandatory retirement age of everyone else in the agency and is still within the limits of the law as it stands today.

                        From a gov't-wide standpoint, if and when the existing law is overturned, you won't see legislation that allows people to EOD over age 37 without like legislation that allows them to work past 57, so the argument is not only relevant, but pivotal to the issue.

                        And that extended retirement age is what agencies, FLEOA, and everyone else are going to fight over. Why? Because it'll either mean taking an earlier retirement date away from John Q. Agent and forcing him to work extra years, or it'll mean allowing someone who SHOULD retire and who shouldn't even be carrying a gun to stay around for a while longer while being a danger to him/herself and everyone around them.

                        Additionally, it has already been pointed out that a 37+ vet pref applicant could still retire at 57 by paying into the retirement fund a predetermined lump sum in order to make up for the # of lost years. If I am not mistaken, VEOA has a provision for this very circumstance.
                        Nope. This does not apply to 6c-covered time. You still have to work 20 years, no matter how many years you "buy back." It gets added "on top of" your 20 6c-covered years, like any other non-covered civil service time. It also counts towards the number of leave hours you get per pay period (a vet with up to 14 years of service will get 6 hours per PP to start instead of 4), but that's all it does - you cannot supplement 6c time with "bought-back" military time.
                        Last edited by GreenLine; 12-29-2008, 11:24 PM.
                        "Sir, does this mean that Ann Margaret's not coming?"

                        Comment


                        • #57
                          let me ask this, what does this do for your retirement at 57?

                          in other words, if you come in after 37/57 or 40/60 for the few, do you still receive 12d retirement coverage (1.7%) or is it at the (1%) non-covered rate of retirement?

                          I have seen people in LEO (12d0 positions but not receiving the 12d retirement coverage.
                          Good question. I would assume (and I'm using common sense, which agencies don't always use) that the same waiver that allows the person to work 20 years starting at age 40 will likewise allow them to collect the same full pay for those 20 years.
                          "Sir, does this mean that Ann Margaret's not coming?"

                          Comment


                          • #58
                            Originally posted by GreenLine View Post
                            Mandatory retirement age is not "irrelevant" to this discussion and the idea that it could be is naive, to say the least. Once again, you gotta be able to work 20 years, and you can't have extra years added at the outset of a career without adding them at the end and have it still add up to 20. The reason agencies like DSS and the Border Patrol are doing it is, again, because they're granting a waiver and allowing people they hire at 40 to work until 60, and because it's a waiver for them, only, it doesn't affect the mandatory retirement age of everyone else in the agency and is still within the limits of the law as it stands today.

                            From a gov't-wide standpoint, if and when the existing law is overturned, you won't see legislation that allows people to EOD over age 37 without like legislation that allows them to work past 57, so the argument is not only relevant, but pivotal to the issue.
                            Questions:

                            1) Does VEOA list exceptions to the mandate to waive the maximum age requirement for vet pref applicants? (Answer: Yes)

                            2) Are mandatory retirement considerations listed as one of those exceptions? (Answer: No)

                            3) Since mandatory retirement considerations are not listed as a valid exception to the VEOA mandate, how is an appeal to mandatory retirement relevant to demonstrating compliance with this law? (Answer: ...)

                            4) Do you agree that FBI/ATF/USSS/et al are in violation of VEOA vis-a-vis the mandate to remove age restrictions for vet pref applicants?

                            5) If you do not believe these agencies are in violation of this law, could you explain to me how FBI/ATF/DEA/et al are in compliance with VEOA by retaining their maximum age requirement? It would be helpful if you could cite the relevant sections of VEOA in your answer, since you're going to prove, specifically, how these agencies are in compliance with VEOA since they are, at the very least, in Prima facie violation of this law...
                            Last edited by ilparkcop; 12-30-2008, 01:24 AM.

                            Comment


                            • #59
                              Veterans rights increasing

                              Here is another recent decesion showing veterans do not loose certain rights. I am waiting to see what the FAMS do with their announcement in January since their Supervising Attorney Advisor is well aware of the legislation.

                              http://www.fedsmith.com/articles/rec...ery07-3292.pdf

                              Comment


                              • #60
                                Agencies have the authority to provide an age waiver up to 40 years old. If a vet applies and is 38, the agency has the authority to provide an age waiver to allow the vet to retire. This does not mean the agency has to provide the waiver. If they don't provide the waiver or if the vet applies and is hired after 40 years old they have to stop working at 57 years old. The waiver isn't an hiring waiver it is a retirement waiver.

                                We are vested after 5 years. What happens to your retirement if you quit after ten years? It sits there until you are old enough to collect it. I can see the simple answer to the problem of what to do with a vet who has served less than 20 years but is at the mandatory retirement age, is to either quit or get fired and collect their retirement benefits as if like everyone else who quit before minimum retirement. Another option is to allow the vet to pay a higher amount for their military time so it counts as 12(d) retirement. We currently pay 3% per year of military service for regular retirement. 12(d) provides .7% more in benefits than the regular retirement, so make the vet in a 12(d) retirement pay 5.1% per year. The main reason for the 12(d) retirement is supposedly the job requires a fit person who can perform a rigorous job. That sounds like the military, in fact they make sure you are fit in the military by having your fitness tested every year. Not all federal agencies require their 12(d) covered employees to be tested again after the academy. I'd happily pay 6% per year for my military time to have it count as 12(d) time.
                                But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security.

                                For the intelectually challenged: If the government screws the people enough, it is the right and responsibility of the people to revolt and form a new government.

                                Comment

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