Federal jobs not automatically competitive, administration argues

The Bush administration is claiming before a federal court that civil service jobs are not automatically competitive unless the president designates them as such, casting aside a widely held view of the government's hiring process.

"Congress established the rules applicable to the competitive service, but did not identify those positions to be placed into the competitive service," wrote Assistant Attorney General Gregory Kastas in the Justice Department's filing for Gingery v. Department of Defense, a case pending before the U.S. Court of Appeals for the Federal Circuit in Washington. "Rather, it identified a pool of positions from which the president was authorized to select those positions he wished to include in the competitive service. Thus, positions in the identified pool remained outside the competitive service absent presidential action bringing them in."

Stephen Gingery, a disabled veteran, sued Defense in January 2008 after the Merit Systems Protection Board ruled that the department had not acted unlawfully when it hired candidates for two auditor positions under the Federal Career Intern Program, rather than holding an open competition with an exam to fill the vacancies. Federal career interns are hired for two-year stints; after that, they can convert noncompetitively into civil servants.

The court held oral arguments Oct. 10 on the case.

"The government's view of the statute would turn the rule favoring the competitive service on its head," Greg O'Duden, general counsel for the National Treasury Employees Union, told Government Executive. "That view is a perversion of the statute. Moreover, the government's suggestion that presidents have historically exercised unlimited authority to except positions from the competitive service is based on mischaracterization of the relevant history."

Congress first attempted to regulate the civil service in 1871, when it gave President Grant the authority to set standards for civil service hiring, but reform efforts languished for more than a decade. The 1883 Pendleton Act established the basis of the merit system that exists today. The law banned the spoils system and established a three-person commission, with appointments subject to Senate confirmation, to oversee the civil service. The Bush administration has claimed that the broad presidential powers to determine which jobs are subject to competitive hiring were embedded in the 1871 legislation and have not been diminished in any subsequent law.

Gingery's court case is the second to challenge the Federal Career Intern Program. NTEU, which filed an amicus brief in Gingery v. Department of Defense, has sued the Office of Personnel Management separately (NTEU v. Springer) in an effort to strike down FCIP. The union has argued that the growth of FCIP is contrary to President Clinton's intentions when he issued an executive order (13162) creating the program.

The order directed OPM to design "merit-based procedures for the recruitment, screening, placement and continuing career development of career interns," with the goal of recruiting excellent candidates to the civil service. NTEU and Gingery's lawyer, Andrew Dhuey, argue that FCIP is intended for use only when noncompetitive appointments are "necessary" for "conditions of good administration," not simply in cases where it would be simpler to make a noncompetitive appointment.

"There is no disputing that attracting exceptional applicants to the federal workforce, developing their professional abilities and keeping them on the job are laudable goals," Dhuey wrote in the January filing. "But if these goals are sufficient to remove the hiring for virtually any position from the competitive service, without any finding that competitive service rules impede these goals, then the 'necessary' limitation of executive discretion to remove positions from the competitive service…is meaningless."

But the Bush administration has argued that the petitioners were wrong to assume the positions in question were by default part of the competitive service, and OPM was required to exempt the position from the competitive service. Dhuey said his client was entitled to notification from Defense that the department was passing Gingery over for the position despite his eligibility for veterans' preference and he should have been allowed to appeal the hiring decision.