The opinion
June 2 3 , 1978
78-35 MEMORANDUM OPINION FOR THE GENERAL
COUNSEL, CIVIL SERVICE COMMISSION
Veterans Preference Act (5 U.S.C. §§ 2108,
3309-3320)— Dependents— Preference— Foreign
Installations
This responds to your predecessor’s request for our opinion as to the legality
of certain Department of Defense (DOD) hiring practices in foreign-area
installations.
Our understanding of the relevant facts is as follows: In 1972, the Civil
Service Commission promulgated 5 CFR § 213.3106(b)(6). This excepted jobs
in DOD foreign-area installations from the competitive service when filled by
dependents of DOD personnel. It was issued under the Commission’s general
authority to except positions from the competitive service “ when it determines
that appointments thereto through competitive examinations are not practica
ble.” 5 CFR § 6.1.
In these foreign-area installations DOD extends a preference in hiring to
dependents of DOD personnel over other applicants. Some are hired in regular
DOD civilian positions. Others, however, are hired pursuant to an arrangement
between the Federal Republic of Germany and the United States. This
arrangement is based upon a North Atlantic Treaty Organization Status of
Forces Agreement (NATO SOFA— 4 UST 1792, Art. IX, Par. 4), which
provides that U.S. forces operating in other NATO countries may hire from the
local civilian population in accordance with the laws of the receiving country,
i.e., the country in which the U.S. forces are present. Persons so hired are
called “ local nationals.” Germany claims that certain treaty agreements entitle
German local nationals to fill a specified number of these positions. However,
all of these positions designated for local nationals are not so filled. Germany
has permitted some local national positions to be filled by dependents in
deference to the needs of DOD personnel and their families. Unless dependents
(primarily wives of DOD personnel) are provided jobs to supplement the
earnings of the family unit, DOD personnel could in many cases not afford to
have their families accompany them abroad. In this regard, the State Depart
ment states “ that as a matter of practice and not of written agreement the
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Federal Republic of Germany willingly acquiesces in the United States forces
in Germany employing its dependents for jobs designated, under NATO SOFA,
for foreign national occupancy.” DOD contends that attempts to fill these local
national positions with persons other than dependents may result in the
withdrawal of these positions from U.S. control.
Furthermore, we have been advised that the number of local national
positions filled by dependents is approximately 5,659. Of these, about 5,449
are in Germany. As for dependents in regular DOD positions, they number
approximately 5,680. Of these, about 4,051 are in Germany. The regular DOD
positions can be filled with persons other than dependents with no danger of
reversion to local nationals because these positions are not subject to foreign
control.
As we understand it, a number of U.S. veterans residing in these foreign
areas, particularly Germany, have complained that the dependent-preference
hiring arrangement fails to take the Veterans Preference Act, 5 U.S.C.
§§ 2108, 3309-3320, into account. Under that Act “ preference eligibles” 1
are entitled to have 5 or 10 points2 added to their employment-evaluation
rating.
In this factual setting, the basic inquiry is whether DOD’s practice of hiring
dependents in foreign-area installations violates the Veterans Preference Act.3
Specifically, three questions are presented. The principal question is whether,
in light of 5 U.S.C. § 3320, the Civil Service Commission had authority to
promulgate 5 CFR § 213.3106(b)(6). Secondly, what effect, if any, does § 106
of Public Law 92-129, 85 Stat. 355, have on the Veterans Preference Act?
Finally, do NATO SOFA and working arrangements under that agreement
supersede the Veterans Preference Act? For the reasons that follow, we
conclude that the Veterans Preference Act is applicable to these positions; we
are of the opinion, however, that the Commission may properly excuse
application of that Act to the local national positions filled by dependents
should it find that such application would not benefit preference eligibles.
We now turn to the question whether § 106 of Public Law 92-129 supports
the extension of an employment preference to dependents in our overseas
installations. As stated above, in 1972 the Commission excepted positions in
foreign area installations from the competitive service so long as they were
'T he term “ preference elig ib le,” as defined in 5 U .S .C . § 2108(3), includes veterans who have
served on active duty in the Arm ed Forces under certain conditions that need not be listed here. And
in some cases the spouses and m others o f these veterans are also preference eligibles.
2W hile m ost preference eligibles are entitled to a 5-point preference, others receive a 10-point
preference. T his latter group consists prim arily o f veterans with service-connected disabilities, and
in some cases their spouses and m others. A lso, certain surviving spouses and mothers of
individuals who lost their lives in m ilitary service to this country qualify for the 10-point
preference. See 5 U .S .C . §§ 2108(3)(c)-(g), 3309.
3A lthough D OD adm its that dependents are given preference over nondependents, it states that
within the fram ew ork o f its dependent hiring policy, dependents who are also veterans are given
preference as against veterans w ho are not dependents. But DOD does not, and indeed could not,
reasonably, contend that this procedure com ports with the requirem ents o f the V eterans Preference
Act. Rather, it contends that § 106 o f Public Law 92-129, discussed infra, renders the Veterans
Preference Act inoperative in these overseas appointm ents that involve dependents.
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filled by dependents of DOD personnel stationed in the area. This exception
was granted, in large part, on the assumption that § 106 of Public Law 92-129
was intended to create a dependent’s preference in foreign countries. We do not
believe that Congress intended such a preference. That section reads, in
pertinent part, as follows:
Unless prohibited by treaty no person shall be discriminated against
by the Department of Defense . . . in the employment of civilian
personnel at any facility or installation operated by the Department of
Defense in any foreign country because such person is a citizen of the
United States or is a dependent of a member of the Armed Forces of
the United States . . . .
The purpose of § 106 is explained in its legislative history. The conference
report states:
The Senate version contained a provision prohibiting job discrimina
tion against American citizens and their dependents in hiring on
United States military bases in any foreign country.
The House bill contained no such provision. The purpose of the
Senate provision is to correct a situation which exists at some foreign
bases, primarily in Europe, where discrimination in favor of local
nationals and against American dependents in employment has
contributed to conditions of hardships for families of American
enlisted men whose dependents are effectively prevented from
obtaining employment. [H. Rept. No. 92-433, 92d Cong., 1st sess.
31 (1971)]
The Senate report states:
The purpose of this amendment is to correct a situation which
exists primarily on some American bases in Europe. In some cases,
discrimination in favor of local nationals and against American
dependents in employment has helped create conditions of poverty
for families of American enlisted men. [S. Rept. No. 92-93, 92d
Cong., 1st sess. 23 (1971)]
Finally, the Senate hearing with respect to § 106 also addresses the problem.
Senator Schweiker commented on some problems facing U.S. military person
nel stationed in Germany who have financial difficulty in bringing their wives
to live with them. In a colloquy with then-Secretary of Defense Laird, Senator
Schweiker stated:
One other inequity . . . is that the wife who does get over there mainly
on a loan that the GI floats, and then rents whatever quarters is
available, which isn’t very much for that money, is then in a position
where she can’t take a job because under the Status of Forces Treaty
obligations we are not permitted to let our nationals work at certain
kinds of positions . . . . [W]e have our GI with a wife that he is trying
to support on a poverty level, and we don’t even let her work under
the Status of Forces Agreement . . . . [I]t makes my blood boil a little
bit when I see the way we are being treated by some of our allies over
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there when they deny employment to the wives of Gls who just want
the right to be with their husbands, something that every other citizen
in Europe has at that time. I would appreciate if you would consider
looking into amending that Status of Forces Agreement so that our
G ls’ wives are not discriminated against.4 [Selective Service and
Military Compensation: Hearings on S. 392, S. 427, S. 483, S.J.
Res. 20, S. 494, S. 495, and S. 496 before the Senate Committee on
Armed Services, 92d Cong., 1st sess. 46-47 (1971)]
We are of the opinion that § 106 was not intended to create a preference for
dependents over other American citizens in DOD foreign-area ‘installation
hiring. Its plain language prohibits discrimination against U.S. citizens and
Armed Forces dependents. It, thus, evinces an intent to extend protection
against discrimination to all U.S. citizens and Armed Forces dependents. The
language permits no reasonable inference that any subgroup of the protected
class was to enjoy benefits over any other subgroup. And the above quoted
excerpts from § 106’s legislative history clearly show that the statute was
designed to protect U.S. citizens and dependents against discrimination in favor
of local nationals. Thus, neither the language nor the legislative history of the
section reveals a congressional intent to establish hiring preferences among U.S.
citizens.
Neither the section nor its legislative history mentions the Veterans
Preference Act. Accordingly, any contention that § 106 partially repealed that
Act must rest on the argument that it was repealed by implication. It is a
familiar principle of statutory construction that repeals by implication are
disfavored. When two statutes are capable of coexistence, each must be
regarded as effective absent a clearly expressed congressional intention to the
contrary. Administrator, FAA v. Robertson, 422 U.S. 255 (1975); Morton
v. Mancari, 417 U.S. 535 (1974). Any repeal intention must be clear and
manifest. Morton v. Mancari, 417 U.S. at 551. There is no expression of
congressional intention that the Veterans Preference Act was to be affected in
any way and it is reasonably possible to read the two statutes compatibly. For
these reasons we believe that § 106 was not designed to alter the application of
the Veterans Preference Act.
II.
Another question asked is whether the Commission was authorized to
promulgate 5 CFR § 213.3106(b)(6) in the face of 5 U.S.C. § 3320. That
statute reads as follows:
The nominating or appointing authority shall select for appoint
ment to each vacancy in the excepted service in the executive branch
4W e note that Senator S chw eiker’s com m ents did not reflect an intent that the legislation under
consideration in the hearings would have any effect on N A TO SOFA. He merely requested
Secretary Laird to look into the problem o f NA TO S O F A ’s im pact on em ploym ent opportunities
for w ives o f Armed Forces personnel. M oreover, § 106 expressly disclaim s any intent to alter any
treaty obligation.
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and in the government of the District of Columbia from the qualified
applicants in the same manner and under the same conditions
required for the competitive service by sections 3308-3318 of this
title. This section does not apply to an appointment required by
Congress to be confirmed by, or made with the advice and consent
of, the Senate.
We note preliminarily that all 5 CFR § 213.3106(b)(6) purports to do is place
the dependent positions in Schedule A of the excepted service. In our opinion,
5 U.S.C. § 3320 makes it clear that the Veterans Preference Act applies to the
excepted service as well as the competitive service. Therefore, merely placing
positions in the excepted service does not remove them from coverage of the
Act. And as we have discussed above, there is no statutory authority in this case
for a Veterans Preference Act exemption.5
For these reasons we are of the opinion that the Veterans Preference Act
applies to those dependent positions filled under routine DOD appointing
authority. Thus, the approximately 5,680 positions in this category must be
filled in accordance with that Act, and any preference eligible applying for such
a position must be accorded the benefit of that Act.
III.
Finally, we turn to the question whether the Veterans Preference Act must
be applied to those local national positions filled by dependents pursuant to an
informal agreement between the United States and the Federal Republic of
Germany. The specific issue presented is whether an international agreement
ratified by the Senate, in this instance, the NATO SOFA, and working
arrangements under that agreement, take precedence over the Veterans
Preference Act? We have, however, been informed by representatives of the
General Counsel at both the Defense and State Departments that NATO
SOFA’s exemption from U.S. employment laws6 applies only to foreign local
nationals. Thus, they implicitly concede that there is no conflict between
NATO SOFA and the Veterans Preference Act.
This, however, does not dispose of the question of whether the Commission
must enforce that Act where dependents conditionally occupy local national
positions. The facts presented indicate that any attempt to fill these positions
with persons other than dependents of U.S. forces personnel will result in
Germany’s insistence that the positions revert to German local nationals.
Hence, such a result would make application of the Veterans Preference Act a
5The Com m ission has indicated that it intends to term inate the exception o f § 213.3106(b)(6).
While we do not believe this exception serves to excuse the requirem ents o f the Veterans
Preference A ct, we note that “ (t]he Com m ission may rem ove any position from or may revoke in
whole or in part any provision of Schedule A , B , or C ." Com m ission Rule V I, 5 CFR § 6.6.
6NATO SOFA (4 U ST 1792, 1810) provides that the laws of the receiving State shall be
followed when U .S . forces o r civilian com ponents hire “ local civilian labour.” Neither the State
D epartm ent nor D OD contends that these laws apply when U .S . citizens are placed in positions
designated for local national occupancy.
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hollow victory for veterans since they would not be allowed to occupy these
positions.
The Veterans Preference Act is not indifferent to circumstances that might
warrant selection of persons other than preference eligibles, even where the
preference eligible has the highest rating of all job applicants. An appointing
officer may pass over a preference eligible and select a nonpreference eligible if
the reasons for so doing are stated in writing, and if the Commission finds such
reasons to be sufficient. 5 U.S.C. § 3318(b). That section makes it plain that
the Commission is the ultimate authority on the decision whether the reasons
for passing over a preference eligible are sufficient.7 Your predecessor stated
that the Commission tentatively concluded that the Veterans Preference Act
should not apply to the local national positions.
If the Commission decides that application of the Veterans Preference Act
would not result in jobs in local national positions for veterans, and that this
constitutes a sufficient reason to pass over preference eligibles, we believe that
decision would be within the scope of the Commission’s authority.8
In sum, we believe that the Veterans Preference Act applies to overseas
positions, and that there is no legal justification for excusing its application to
regular DOD appointments. However, we think that the Commission is
empowered to excuse its application to U.S. citizens filling the local national
positions for the reasons stated herein.
We trust that this fully responds to your questions.
Larry a . H ammond
Deputy Assistant Attorney General
Office o f Legal Counsel
1See also S. Rept. No. 679, 83d C o n g ., 1st sess. 2 (1953), which m akes it clear that the
Com m ission has final authority in these decisions.
8A lthough § 3318(b) speaks in term s o f passing over preference eligibles in individual
appointm ents, we see no reason why the C om m ission m ay not grant a blanket pass over to cover a
class o f appointm ents involving sim ilar situations, and having a com m on sufficient reason.
Further authority for such an exem ption m ay be found in 5 CFR § 3 0 2 .101(c), which provides in
pertinent part:
. . . each agency shall follow the principles o f veteran preference as far as administratively
feasible. . . .
H ow ever, in the case o f the local national positions it is arguable that it would not be
“ adm inistratively feasible” to apply the V eterans Preference Act since such application would not
result in jo b s for veterans.
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