Veterans Age Waiver Information

[1depd]

So what does all that mean? There is no law requiring a blanket waiver to anyone over 37. If the agency says age matters in the performance of duties, they do not have to give you a waiver. Period. And by the way, Isabella ended up out of pocket on all lawyer fees. Did he get hired as an 1811? Nope. He received an offer for a 2501, Security Officer position at the age of 43.

You are correct, but I think it is just a typo. There isn't a law providing a waiver specifically for anybody over the age of 37, but there is an law that provides for a blanket age waiver in hiring for veterans. The law does not specifically spell out any ages to be waived, only that the requirement be that it is not essential for the job. The law read specifically:
(a) In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Office of Personnel Management or other examining agency shall waive—
(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and...

I deleted subsection 2 because it is irrelevant to the discussion.

The MSPB signaled it's intention of future rulings when it laid out the standard of actually looking at the work force. If the position being applied to has people working in it who are over the maximum hiring age then the max hire age can't be a job requirement. It seems the MSPB's decision and signaled intention would only make jobs that specifically require certain ages ineligible for the waiver. The only type jobs I can come up with off the top of my head would be something like the child in an advertisement on military TV channels.

I know it's out of order, but as to your assertion that just because a vet can apply does not mean they have to be hired. You again are correct to a point. If the vet is not on the list of best qualified then you are correct. However when a vet applies the reasons for not selecting the vet must be maintained and be able to withstand scrutiny. If the vet wishes to pursue legal actions for not being hired the agency must justify why they did not hire the vet. I seriously doubt a generic statement of, "Applicant A was better qualified" will suffice. If a person less qualified is hired the agency will be ruled against. I don't know what exactly that means, whether the person hired gets fired and the vet gets hired or if the vet receives the next job or what, but the agency will lose.

Edited to add: The law is very broad. The MSPB also interpreted the law very broadly in Isabella. The Isabella ruling provided standards against which an agency must compare it's policies to ensure compliance with the law. That standard was detailed when the MSPB ruled that if an agency has anybody serving in the position who are over the max hire age then the max hire age can't be a job requirement.

[Joeyd6]

You are mis-applying Title 5 sub-section 312. First, that section only applies to competitive service jobs. Many Federal LE gigs are excepted service. Second, the pharse "unless the requirement is essential to the performance of the duties of the position" is key here. Why? Isabella had NOTHING TO do with this point!

Isabella is about the fact they stopped processing his application before he was 37, and had they not, it was likely he could have been hired if they slightly expidited things or accomodate him when he offered to come there. He was given a waiver based on the facts I previously listed, not because he wanted in after he was 37.

Thus far, every single federal law enforcement agency except CBP and BP has maintained age 37 is essential to the position because you need to do 20 years to retire and there is nobody over 57 doing the job to prove otherwise in the agency. There are two that are letting all vets apply who are over 37, but none have been hired as agents, only unifomred. Hmm...think that is odd that to date not one has been hired? One agency is bouncing any vet who applies over 37 if they have a PTSD rating with the VA, stating that combat is similiar to the misison of the agency and the PTSD from comabt the Vet is experienceing is likely to re-occur during LE operations, and thus, they could cause a safety issue for them or others. Bam...psych DQ with major federal agency. Try appealing/fighting that one. Maybe you can, but it will cost you at least five digits and several years, and by that point, you may not want the job anymore.

I know this is a soft spot for many vets. I quite frankly have no personal dog in this fight. I am just telling you from a legal standpoint from a guy with JD, who happens to be a fed agent, who happens to have gone to a few conferences where this was discussed, who went to a three day seminar given by OPM on this, that if you are over 37, and a Vet, look at the BP, CBP and USSS Uniformed Division if you want to be hired. Otherwise, expect a lot of disappointment for a few years until this is worked out. I have never sugar coated things before, and I am not providing false hope. There are other "boards" where Vest are getting DQ'd simply due to age. As I stated before, there is no mandate an agency "must" do this. All they have to do is say age is essential to doing the job and it ends.

[1depd]

Actually if you read the decision you will discover the MSPB ruled the age waiver law applies to both competitive and excepted service applications. This might be ruled differently in later cases, but as of now it is the ruling that holds the power. It doesn't really matter what the Isabella case was about when it started, what matters is what the MSPB ruled and determined. The MSPB ruled and determined that the law applies to applicants for both competitive and excepted service. The board ruled that prima facia evidence that the age limit can not be a job requirement if the agency has people who are over the age limit working there. The board ruled and determined that the age limit was a retirement requirement not a job requirement.

The "unless the requirement is essential to the performance of the duties of the position" phrase is definitely key to this discussion. If an agency determines that being under their max hiring age is a key requirement of the job and therefore can't hire a vet who is over the max hiring age, then by default they can not employ anybody over the max hiring age because they no longer meet the job requirements. If there are people who are over the max hiring age working for the agency when the agency refuses to process a vet for being too old, it is no different than saying being a non-smoker is a requirement while smoking a cigarette.

I think you need to recheck federal LEO agencies. Several accept applications and hire over aged preference eligible vets.

I really don't care what the agencies are ruling. The reason I don't care is the law has been on the books since 1997 or 1998, if I recall correctly. None of the agencies applied the law as required. The MSPB refused to accept jurisdiction over the issue, until a law was passed giving them the authority to hear cases about the statute. After that the board ruled in favor of the vets, not the agencies who refused to follow the law. Many agencies are still refusing to follow the law and ruling/interpretation of the law provided by the board. Those cases will have to be litigated on a case by case basis.

[Wolfman]

Just as a heads up, the FBI website now says (under SA qualifications):

"You must be at least 23 years of age, but younger than 37 upon your appointment as a Special Agent. Age waivers may be granted to preference eligible veterans who have surpassed their 37th birthday."

I am not sure how far that goes, how much time you would be able to remove, etc. but if you're really still interested, in a 1811 job with the FBI, NCIS, USSS, et al., I would just do as others suggested and continue to call the recruiter in your area.