How Preference Eligibility Can ‘Upset’ a Simple Termination Case

By Barbara Haga, July 18, 2023

While the purposes of a trial period and a probationary period are much the same, the rights for excepted service employees who are subject to an adverse action are different than those for competitive service employees. In fact, it wasn’t until 1990 that non-preference eligible excepted service employees had appeal rights to the MSPB at all.

Under the original Civil Service Reform Act, excepted employees who were not preference eligibles did not have MSPB appeal rights. The Supreme Court addressed the issue in United States v. Fausto, 484 U.S. 439 (S. Ct. 1988), affirming the MSPB’s determination that non-preference eligibles were not included in the groups of employees eligible to appeal adverse personnel actions to the Board. The Civil Service Due Process Amendments Act of 1990, Pub. L. No. 101-376, granted those rights to the non-preference excepted employees about two years later.

Preference in hiring applies to permanent and temporary positions in the competitive and excepted services of the executive branch. When we address the broad category of who is a preference eligible, we typically picture those who served in uniform in the military, and certainly the vast majority of individuals who have preference obtained in that way.

However, it is important to remember that there are other categories of preference that extend from a military member’s service.

This is called derived preference and includes the spouse of a disabled veteran who is unemployed, the widow or widower of a deceased veteran, or the parent of a disabled or deceased veteran. As the Board wrote in Redus v. USPS, 88 M.S.P.R. 193 (2001):

The Veterans’ Preference Act should be construed, whenever possible, in favor of the veteran, especially when the right to defend against charges of wrongdoing is involved. See Flanagan v. Young, 228 F.2d 466, 472 (D.C. Cir. 1955). Therefore, we find that the plain language of the statute indicates that Congress intended to confer preference eligible status on spouses of disabled veterans who are unable to support their families through employment with the government because they suffer from service-connected disabilities.

Numerous conditions must be met to qualify for use of such preference. An OPM guide describes requirements for each category. It is not completely up to date since it still addresses preference for “mothers,” even though preference is currently extended to both mothers and fathers.

The language regarding spousal eligibility in 5 USC 2108(3)(E) states that preference eligible includes “the wife or husband of a service-connected disabled veteran if the veteran has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia.”

The “spouse” section of the OPM guide gives examples of when disqualification may be presumed. These occur when the veteran is unemployed and 1) is rated by appropriate military or Department of Veterans Affairs authorities to be 100 percent disabled and/or unemployable; 2) has retired, been separated, or resigned from a civil service position on the basis of a disability that is service-connected in origin; or 3) has attempted to obtain a civil service position or other position along the lines of his or her usual occupation and has failed to qualify because of a service-connected disability.

The guide applies to hiring, so why would readers of this column be concerned about that? Here’s why: If the individuals exercising this preference are excepted employees, it will give them due process and appeal rights a year earlier than they would otherwise have them.

Never saw this coming!

The Redus case is a perfect example of how this issue can completely upset an otherwise simple termination case. Redus was a Postal Service employee. Her coverage as an employee entitled her to due process and was based on her status as a preference eligible. The information here is applicable with other excepted service cases.

Redus was terminated in June 1998 after more than a year of service as a Distribution Clerk. The charges were failure to report for duty as instructed and AWOL. She was not given a proposed notice and opportunity to reply, nor was she given MSPB appeal rights. Regardless, Ms. Redus found her way to the Board.

Her husband was 100 percent disabled. The Postal Service was not aware of this. She did not use spousal preference to obtain employment.  She produced documentation of his disability after her termination. The VA documentation she supplied was dated Jan. 20, 1998, and said:

“This will certify that Leon Redus is a beneficiary of the Department of Veterans Affairs; that said beneficiary has been rated incompetent by the Department of Veterans Affairs in accordance with the laws and regulations governing said Department and that the appointment of a guardian of his estate is a condition precedent to the payment of monies due said beneficiary by the Department.”

Redus was persistent in advancing her case.  She lost at the initial level because the AJ ruled that while her husband was disabled, there was no evidence that he had failed to qualify for any appointment. The AJ’s decision was upheld by the Board. Redus continued her challenge to the Federal Circuit.  The Board asked the Federal Circuit to let them review the decision. The Court agreed, which led to the decision cited above.

The Board changed its mind regarding what was necessary to meet the last portion of the definition in 5 USC 2108(3)(E). It found the  information Redus showed that her husband would not have qualified for any Federal position was sufficient to give her preference. Because of that, she was entitled to due process. The agency stated that it did not give notice because it did not know that she was a preference eligible. That was immaterial. The Board overturned the action and waived the untimely filing, since she was not given notice of her appeal rights.

In Cowan v. Interior, DE-0752-10-0066-I-1 (MSPB 2010), something similar happened. Cowan claimed preference when she was hired.  She produced documentation that her husband had been rated as 70 percent disabled by the VA, had been granted a disability annuity by SSA, and had resigned from his civil service position due to his diabetes.

In spite of this, Interior violated her due process rights, and they were reversed. [email protected]