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  • #61
    Questions:

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


    VEOA may waive maximum entry age, but until it requires agencies to allow people to work until 60 and overturns the existing law regarding maximum retirement age, it can't be the all-encompassing, age-barrier-removing law that you seem to think it is. It essentially says that as a veteran over 37, an agency has to hire you if you can do the job. It doesn't say how they're supposed to allow you enough time in a career to retire - which means an agency can utilize waivers, which already existed, anyway. An agency could do that before VEOA and can still do it today. Entry age and exit age are tied together; you can't legislatively change one without changing the other.

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

    Nope, and that's partly why VEOA is not the smoking-gun legislation that drops all of these age barriers. See my response above and my explanation in nearly every post thus far. Entry age and exit age are tied together; you can't legislatively change one without changing the other. VEOA is simply a re-employment rights statute that has shown that it can be used to give vets a way into covered positions, via MSPB decisions or agency waivers, but it still doesn't change the existing law. When someone comes and tells me that I'm now allowed to work past 57 by law, THEN it will have changed. Until then, nothing is any different.

    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: ...)

    I've kinda beat that to death: you currently can't start at 40 and NOT be allowed to work until 60 and get your 20 years unless you have a waiver. VEOA falls short as the legislation that you seem to think it is because it doesn't and can't do that for every applicant and doesn't address how to deal with people already in the system who muust be out the door by 57.

    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?

    No, I don't. They're acting in accordance with existing law - the one regarding LE retirement which, in fact, existed before VEOA and applies to millions of LEO's who are already working and who did come in under those age limits. You can't change it from the outside for just military vets over 37 without changing it from the inside, as well, which involves allowing these other people, non-vets included, to work longer and/or prohibit them from retiring as early as they can now. If you think these agencies are in violation, sue them and find out. The difference between them and DSS/FAMs/BP/IEA's is that they're not looking for more people and/or willing to offer an agency-wide waiver at this time. That's all. To turn this around, wouldn't an agency be violating the existing law if they suddenly started hiring only veterans over 37 and allowed them to work past 57 without granting them a waiver? If I were the head of the ATF, I wonder which law I'd follow: a new one that no one has guidance on and which applies only to a select group of applicants, or an existing law that applies to every one of my current and past employees - ? Again, sue them and let us know what they say.

    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...

    If you don't understand the points I've made from the numerous posts and explanations (of the same things) in this thread, cutting and pasting from VEOA - which again, only applies only to a select group and not everyone and, for that reason, cannot trump the existing law - isn't going to help any. These agencies adhere to the existing law that covers ALL applicants and employees, not just vets. Once again (sigh), you cannot completely remove entry age restrictions for a select group without removing the mandatory retirement age, and you can't remove the mandatory retirement age for JUST veterans. What you can do is grant waivers to the existing law, which is what some agencies have done or are in the process of doing when they've been challenged under MSPB. Maybe the FBI will do that, too, when the time comes. But that doesn't change the fact that the age barriers are still there and they're in full compliance with the existing laws governing 6c. VEOA doesn't change that.

    Some questions for you on points I've made that you have not yet addressed: if you truly believe VEOA drops the age barriers for all agencies, please explain to me how you expect a veteran to be hired at 40 and work past the existing mandatory retirement age when VEOA doesn't address that retirement age and doesn't change it. And to change it, it would have to do so for everyone, not just vets, so how can a veteran-specific statute affect John Q. Agent who never served in the military and was hired right out of college?

    You seem to have skipped over all of this as if it doesn't matter, but the fact that you think the mandatory retirement age which drives 6c is "irrelevant" and the fact that you haven't grasped that a removal of the age requirements will affect many more people that just veteran applicants shows me that you need to read up on the existing law and retirement system and how they work. You're trying to read the VEOA statute and apply it selectively to the existing law, which isn't going to work.

    VEOA aside, you're not making any arguments that haven't been made by people who've challenged this in the past: "you don't have to be under 37 to do the job," and so on. That may be true, but it's only half of the argument. If you change the lock on the front door, you have to change the one on the back door, too, and everyone has to get the same key. VEOA doesn't do that or even come close.

    If you have something new to offer or care to address anything I've stated, I'm all ears, but until you understand how the existing law that applies to everyone with a heartbeat works, it doesn't make any sense to keep arguing about how a law that only covers only a select group can overturn it.
    Last edited by GreenLine; 12-30-2008, 10:40 AM.
    "Sir, does this mean that Ann Margaret's not coming?"

    Comment


    • #62
      The simple matter is the MSPB, using prior court cases, ruled retirement is not a condition of being able to perform the job. From the page 9 of the ruling:

      "However, OPM does not address the inherent contradiction between the fact that Special Agents are considered sufficiently young and vigorous to perform the duties of the position until they reach the mandatory retirement age of 57, see RF, Tab 8 at 24, and the claim that the appellant, on the cusp of age 37, was already too old to perform those same duties.6 As the Board explained in its decision, courts that have reviewed the legislative history have concluded that the age limits authorized by Congress are not grounded on occupational qualifications, but instead are designed to enhance the retirement scheme by allowing individuals to enjoy a full career prior to reaching the mandatory retirement age."
      Bolding and italics mine

      Your position seems to be that a person can not be hired over the age of 36 because they can't retire with a full pension. Nobody said they were attempting to retire, they are attempting to gain employment. Also nobody ever said one must have a pension to retire, especially if they are already receiving a pension from a previous job. Just because the benefit is opened for vets does not mean it will be transfered to the general population (see the rule of three, and vet preference points aren't available to everyone), and really so what if it were. They still wouldn't be able to retire from the position as the laws are currently written.
      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


      • #63
        Greenline,

        I had a rather lengthy reply which attempted to address your latest post. As divine sovereignty would have it, my computer locked up and *poof* away it went into the nethersphere...

        Oh well..

        In any event, you're probably correct in suggesting that continued discussion on our part will prove to be a waste of time - I'm convinced you really don't understand the requirements of VEOA and you're convinced I don't understand the relevance of the mandatory retirement age as it relates to this discussion.

        I suppose we'll see how this plays out in the future.

        Cheers!

        Comment


        • #64
          Your position seems to be that a person can not be hired over the age of 36 because they can't retire with a full pension. Nobody said they were attempting to retire, they are attempting to gain employment.
          That is the position of the law as it stands. Fair or unfair is moot, because it's still the current law, and to change it for people coming in, you gotta change it for those already working within it's parameters. My point is and has always been that VEOA does not overturn that law. Period.

          Whether they're not "attempting to retire" or only want to work for a few years is also moot because the entire law is about law enforcement retirement provisions, specifically allowing LEO's (and certain others) to work 20 years vice the normal 30. Now, if some senator wants to push for a legislative change that allows people to come into 6c-covered positions and work for 3, 8, 17 years or whatever, then bail out without retirement benefits, fine, but we all know that come the 17-year mark, there are going to be a LOT of people who are not going to be content with that, not when others only 3 years ahead of them are retiring with full bennies. You'll see minds changing and lawsuits aplenty. That's probably why there's no such provision for it "part time" 6c employment. It would arguably be easier to revamp the entire system altogether.

          As the Board explained in its decision, courts that have reviewed the legislative history have concluded that the age limits authorized by Congress are not grounded on occupational qualifications, but instead are designed to enhance the retirement scheme by allowing individuals to enjoy a full career prior to reaching the mandatory retirement age."
          We've already established that it's not grounded on occupational qualifications, but until Congress bothers to change the system, it's still the law. And they can't change it with something like VEOA, for reasons I've stated ad nauseum.

          Ilparkcop,

          I probably don't understand all the provisions of what VEOA does, but I certainly understand what it cannot do, which is change 6c-retirement for everyone in that system. Additionally, since I've actually been in a 6c-covered position for going on 15 years now, I also understand that any change to the system's most basic tenets has to be made for everyone in it, so VEOA can't apply in that regard either.

          Agree to disagree.
          Last edited by GreenLine; 12-30-2008, 12:56 PM.
          "Sir, does this mean that Ann Margaret's not coming?"

          Comment


          • #65
            Greenline--I've looked, but can't find the law about the maximum entry age, only job announcements relating to maximum entry age being tied to the mandatory retirement. Where is it in the statutes about the maximum entry age? You've stated several times the maximum entry age is in the law as well as the mandatory retirement age. I think your argument would hold a lot more weight if you could post a link or post the law.
            Last edited by kc12; 12-30-2008, 03:42 PM.
            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


            • #66
              The details of 6c are under Title 5 USC, section 8412(d). That reference in and of itself bears explanation. The law, under the old Civil service Retirement System, was known collectively as "6c" for the section it was found under (8336(c)). When the Federal Employee Retirement System came into being and CSRS was no longer offered, the same law was "moved" to where it is now. Same law, different reference, so I guess it's technically "12d" retirement, but we all still call it "6c". Just more confusion for an already-confusing topic.

              You should be able to find the details under either of those references. 12d would be more current, but again, it's the identical law with a different listing locations.

              Something interesting is a timeline of how LE retirement came into being - just a summary of what each law was meant so do and not the statutes, verbatim, but the references are there for the laws that were enacted in case anyone wants to look them up.

              http://www.doi.gov/training/flert/milh.html
              "Sir, does this mean that Ann Margaret's not coming?"

              Comment


              • #67
                Found it. Title 5 USC SEC 3307 states:
                "(a) Except as provided in subsections (b), (c), (d), (e), and (f) of this section appropriated funds may not be used to pay an employee who establishes a maximum-age requirement for entrance into the competitive service.
                (b) The Secretary may, with the concurrence of such agent as the President may designate, determine and fix the maximum limit of age within which an original appointment to a position as an air traffic controller may be made.
                (c) The Secretary of the Interior may determine and fix the minimum and maximum limits of age within which original appointments to the United States Park Police may be made.
                (d) The head of any agency may determine and fix the minimum and maximum limits of age within which an original appointment may be made to a position as a law enforcement officer or firefighter, as defined by section 8331 (20) and (21), respectively, of this title.
                (e) The head of an agency may determine and fix the maximum age limit for an original appointment to a position as a firefighter or law enforcement officer, as defined by section 8401 (14) or (17), respectively, of this title.
                (f) The Secretary of Energy may determine and fix the maximum age limit for an original appointment to a position as a nuclear materials courier, as defined by section 8331 (27) or 8401 (33). "

                The MSPB addresses this issue with:

                "The appellant responds that there is no evidence that Congress, in enacting § 3307, intended to override or repeal “a right that had been granted decades earlier to the fighting men and women of this country.” RF, Tab 12 at 9-10. The appellant argues that the provisions can be reconciled “by construing § 3307(d) and (e) to apply to all law enforcement officer positions except where the applicant is a preference eligible, in which case § 3307(d) and (e) are waived, unless the maximum age entry requirement is essential to the performance of the
                duties of the position for which application has been made.” Id. at 5. We agree with the appellant’s statutory interpretation. It can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change."

                The board goes on to describe when a later statute can repeal an earlier one, by citing decisions of the SCOTUS, and stipulates these statutes do not meet the requirements (as outlined by the SCOTUS). This decision can obviously be reversed if appealed, but I thought I read somewhere that OPM was not appealing the decision of the Board.
                Last edited by kc12; 12-31-2008, 08:38 AM.
                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


                • #68
                  After citing many cases and providing instruction the Board went on to describe the appropriate method of applying the two laws by saying:

                  "Here, sections 3307 and 3312 are easily reconciled on the plain language. If an applicant’s age exceeds an age limit authorized by § 3307(d) or (e), then the hiring authority must determine whether the applicant is preference eligible. If the answer is no, then a maximum entry age fixed pursuant to 5 U.S.C. § 3307(d) or (e) bars the non-preference eligible candidate from having his application processed. On the other hand, if the applicant is preference eligible, then the hiring authority must make an additional determination: Is the age limit “essential to the performance of the duties of the position?” 5 U.S.C. § 3312(a)(1). If the answer is yes, the application cannot be processed; if the answer is no, then the age limit must be waived for the preference eligible applicant pursuant to § 3312. Thus, § 3312 does not render § 3307(d) or (e) superfluous. The waiver provision only applies to a small class of applicants -- preference eligibles who are older than the maximum entry age -- and only under specific circumstances -- where the age limit is not essential to the duties of the position."

                  All of these opinions of the Board obviously can be overturned, however with the extensive citing of SCOTUS I doubt any court would over rule the decision of the board.

                  I believe I read somewhere that in an instance where there is conflict with regards to hiring a person for a federal employment the decision will be to the applicant's benefit. I'll be researching this also and post anything I can find.
                  Last edited by kc12; 12-31-2008, 08:40 AM.
                  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


                  • #69
                    I know I said I was done, but I'll hop back in to point out a few things being skipped in this discussion. Primarily actual legal precedents on this matter, from REAL courts, not the MSPB:

                    From the 11th Circuit Court of Appeals: http://bulk.resource.org/courts.gov/...-.89-3614.html

                    From the 6th Circuit:
                    http://www.altlaw.org/v1/cases/503616

                    http://caselaw.lp.findlaw.com/cgi-bi...ase&no=980181p

                    Comment


                    • #70
                      Originally posted by SA13 View Post
                      I know I said I was done, but I'll hop back in to point out a few things being skipped in this discussion. Primarily actual legal precedents on this matter, from REAL courts, not the MSPB:

                      From the 11th Circuit Court of Appeals: http://bulk.resource.org/courts.gov/...-.89-3614.html

                      From the 6th Circuit:
                      http://www.altlaw.org/v1/cases/503616

                      http://caselaw.lp.findlaw.com/cgi-bi...ase&no=980181p
                      Dude I don't think any of these cases are pertinent to the argument at hand because (mind you I just briefly glanced) I don't see where any of these individuals were veterans.

                      Comment


                      • #71
                        Originally posted by SA13 View Post
                        I know I said I was done, but I'll hop back in to point out a few things being skipped in this discussion. Primarily actual legal precedents on this matter, from REAL courts, not the MSPB:

                        From the 11th Circuit Court of Appeals: http://bulk.resource.org/courts.gov/...-.89-3614.html

                        From the 6th Circuit:
                        http://www.altlaw.org/v1/cases/503616

                        http://caselaw.lp.findlaw.com/cgi-bi...ase&no=980181p
                        From what I could tell the first two cases do not apply. As DSSHopeful stated the plaintiffs weren't vets.

                        The last case is a bit more interesting. The applicant asserts her veteran's preference rights were violated. The court did not make a ruling on the issue of veterans preference, stating it did not have jurisdiction. This means no decision was granted with consideration to the applicant's veterans preference. The case was heard in April 1998 and the decision was rendered in June 1998. In October 1998 the Veterans Employment Opportunities Act was passed. In the VEOA the procedures for filing a complaint for a presumed violation of any veterans preference are outlined. These procedures had not been address prior to the passage of the VEOA. This legislation gave the MSPB and the courts the jurisdiction to hear the case.
                        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


                        • #72
                          DOL and Veterans

                          I think you will find all of the statues codified at the 5 section covering veterans is under the authority of OPM that directs veterans to DOL. if you have a question maybe contact them for guidance.

                          Also, if you have a Veterans preference problem you have just 60 days to file a complaint with DOL and than you must allow for them to conclude their administrative action before going to the MSPB.

                          http://www.dol.gov/vets/aboutvets/contacts/main.htm

                          A recent case decision highlights this fact.

                          http://www.mspb.gov/netsearch/viewdo...cation=ACROBAT

                          As it is obvious under the new administration veterans will get more rights. but unless we have a Crystal ball we will have to wait and see how some of the recent court cases pan out.

                          Also the decision about the age limit has come from a real court. They remand the decisions back tot he MSPB for implementation.

                          Comment


                          • #73
                            Mspb Appeal

                            Here is my problem.

                            I was employed with DHS/CBP from 09/2003 up to 4/2008I applied for a position with DHS/CIS as an Adjudication Officer with promotion potential to a GS-12 and was hired on 4/2008. A couple months ago, on October 23, 2008, more than 30 days before my 37th birthday, I submitted a request to be reinstated as a CBP Officer GS 1895. CBP delayed my reinstatement request by not routing it through the proper channels. In other words, they sat on it. CBP now claims that my request was submitted after my 37th birthday. Therefore, my request was denied because I exceeded the maximum age requirement under the new 12(d) coverage.

                            Before my request, there was an officer who was with CBP before joining CIS. Well, the officer submitted her reinstatement request before me. The officer was previously a CBP Supervisorbefore she joined CIS, which is considered a Secondary Position. The CBP Supervisor was also the spouse of my previous CBP Supervisor. She also exceeded the 37 years of age requirement.

                            Well, I challenged Custom and Border Protection concerning my VEOA violation as a preference eligible. I submitted my Acknowledgement Order on 12/29/2008. I received my Second Order to Show Cause on February 19, 2009 in which it stated that the Board might have jurisdiction over my appeal. On March 2, 2009, the MSPB judge stated that the Board has jurisdiction over my appeal.

                            So, today the judge requested further evidence to prove that there is a violation of my preference eligible rights under the VEOA.

                            I cited Isabelle v. Department of State but CBP stated that the applicant in this precedent decision was applying through a Vacancy announcement. The representative claims that my appeal is different because I currently occupy a position within the Federal Government. CBP claims that there does not exist an age waiver which applies to my reinstatement request.

                            CBP claims that, at the time of my appeal, there was no job offer by the agency nor did I apply through a job announcement. Although, I submitted my reinstatement request as instructed, CBP states that after they requested that I submit the necessary documents on 12/4/2008 I had already exceeded the age requirement.

                            CBP stated that I am not considered a "veteran" as per the definition. I am a disabled veteran with a Service Connected Disability of 30% or more. I have been awarded numerous medals for different campaigns. CBP still argues that I am not a veteran with preference eligibility.

                            Comment


                            • #74
                              CBP stated that I am not considered a "veteran" as per the definition. I am a disabled veteran with a Service Connected Disability of 30% or more. I have been awarded numerous medals for different campaigns. CBP still argues that I am not a veteran with preference eligibility.
                              I have no idea how that can conceivably claim that - unless you're trying to be reinstated as a CBP officer as a GS-12, because I think VEOA only applies up to GS-11 and only for people coming from outside an agency (I have applied for jobs in my own agency above a 12 and don't get any VEOA consideration).

                              Otherwise, sounds like you have a legitimate beef.
                              "Sir, does this mean that Ann Margaret's not coming?"

                              Comment


                              • #75
                                I have been trying to be reinstated to a CBP GS-11 position. There are positions currently being announced in USAJOBS for pre-clearance in Canada. These positions state that if you were previously with CBP during the past 5 years then you may apply. When you fill out the positions questionnare it ask for the following:

                                Veterans under the VEOA qualify for positions listed for Interagency Career Transition Assistance Plan (ICTAP).

                                Assessment Questionnaire 1.
                                What attracted you to apply? (Choose one only please)

                                2. Select the statement that best describes your Federal employment status.

                                B. I am NOT a current U.S. Customs and Border Protection employee with competitive status.

                                3. Will you be less than 37 years of age at the closing date of this announcement?
                                D. No

                                If you chose response A in the previous question, provide your date of birth. If you chose response B or C, provide the dates of your federal civilian law enforcement experience (from MM/DD/YY to MM/DD/YY).

                                4. Have you served or are you currently serving as a full-time permanent GS-11 with Customs and Border Protection?
                                A. Yes

                                5. All applicants who are NOT CURRENTLY in the 1895 series must have been in the series within the last five years to be eligible for this announcement. Are you currently or have you been in the 1895 series within the last five years?
                                A. I am NOT currently in the 1895 series; however I have been in the 1895 series within the last five years.

                                If you answered A or B to the question above, please provide the dates you were in the 1895 series. If you answered C to the question above, please indicate "not applicable".

                                Customs and Border Protection Officer GS-1895-11 From 09/23/2003 To:04/27/2008

                                6. Conviction of a misdemeanor crime of domestic violence, as outlined in the vacancy announcement, is disqualifying. A misdemeanor crime of domestic violence is any offense involving the use of physical force, or the threatened use of a deadly weapon, committed by a current or former domestic partner, parent, or guardian of the victim. Have you ever been convicted of a misdemeanor crime of domestic violence?
                                B. NO

                                7. Do you have a current valid State driver's license or will you be able to obtain a valid license within three months before entering this position?
                                A. Yes

                                8. Have you previously held an overseas position with Customs and Border Protection?
                                B. No

                                If you answered A to the question above, please provide the position title, location, and dates you held this overseas position. If you answered B, please indicate "not applicable".
                                Not applicable

                                9. If you are a Federal employee, is your most recent performance rating equivalent to a "pass," "satisfactory," or better?
                                A. Yes


                                Still, CBP still argues that I am not being denied because of veterans preference but because I exceed the 37 year of age requirement.

                                Comment

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