U.S. Court of Appeals Rules that DoD Violated Laws for Veteran Hiring Preferences

Army Times

December 29, 2008 – The Defense Department violated the rights of a veteran who was seeking an entry-level, civilian auditing job when it decided to hire two nonveteran candidates instead, a federal court has ruled.

In a Dec. 24 decision, the U.S. Court of Appeals for the Federal Circuit found that an Office of Personnel Management authority that allowed Defense to bypass traditional competitive hiring procedures for entry-level positions was invalid because the regulation conflicted with statutory requirements.

Congress required that OPM give permission to DoD to pass over a veteran or other preferred candidate for a job, but in this case Defense made that decision on its own when it passed over veteran Stephen Gingery for a job at the Defense Contract Audit Agency.

Defense used a special authority to hire candidates through the Federal Career Intern Program, which under OPM’s regulation allowed the department to decide whether to give preference to the veteran. In exercising this hiring authority, the department denied Gingery, who has a 30 percent or greater disability, his preference rights, Judge Kimberly Moore wrote in the decision.

The court reversed a previous decision by the Merit Systems Protection Board to uphold the Defense hiring decision under the intern program and sent the case back to the board for further action.

Although Gingery had also questioned the legality of the intern program as a whole, saying it violated requirements that exceptions to competitive service be “necessary” for “conditions of good administration,” the court decided not to rule on this issue.

“Because we conclude that OPM’s pass-over regulation is invalid and that Mr. Gingery’s veterans’ preference rights were violated, we need not reach the broader questions of the FCIP’s validity,” Moore wrote.

The intern program allows agencies to shorten hiring times and target recruitment to particular applicants by allowing managers to fill jobs without public notice or competition. The program’s authorities allow the interns to be converted to permanent employees after a two-year probationary period. In contrast, traditional competitive hiring procedures, which would have favored Gingery, require agencies to post vacancies nationally and to hire from a list of highly qualified candidates.

The National Treasury Employees Union, which filed a brief in support of Gingery during the case, said it was pleased the court ruled in Gingery’s favor, but was disappointed the court took no action with regard to the intern program.

NTEU president Colleen Kelley has criticized the program on grounds that it enables federal hiring managers to skirt traditional competitive hiring methods.

One judge on the three-judge panel that heard the case said the court should have settled questions regarding the intern program. The validity of the intern program and how it was implemented was central to the case and could have larger implications for Gingery’s legal rights, Judge Pauline Newman said in a concurring opinion.

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