Court rules veterans’ preference applies to excepted service jobs

A federal court has ruled that veterans' preference rights must be applied in the same way for both competitive and excepted service positions, but declined to address larger questions about the constitutionality of the Federal Career Intern Program and the president's power to decide which jobs are competitive.

The U.S. Court of Appeals for the Federal Circuit ruled on Dec. 24, 2008, in Gingery v. Department of Defense that the Merit Systems Protection Board incorrectly ruled that Defense did not violate the veterans' preference rights of Stephen Gingery, a disabled veteran, when it filled two auditor positions with FCIP candidates without requesting permission from the Office of Personnel Management, or notifying Gingery that he had been passed over and had a right to appeal the hiring decision.

The Bush administration had argued that veterans' preference requirements did not apply in this case because using the FCIP to fill the jobs made them excepted service positions. Judge Kimberly Moore, writing for herself and Judge Pauline Newman, rejected that argument.

"OPM's regulation is invalid because it provides 30 percent or more disabled veterans with less protection than Congress guaranteed them," she wrote in the decision, adding "Congress clearly and unambiguously stated" that veterans' preference "should apply to the excepted service in the same manner it applies to the competitive service."

The National Treasury Employees Union and the American Federation of Government Employees both hailed the ruling as a victory for veterans applying for federal jobs. But they expressed disappointment that Moore also decided that since Defense violated Gingery's veterans' preference rights, the court did not need to determine the legality of the Federal Career Intern Program.

"This program allows federal agencies to put employees on probation for two years and they can be terminated at will with no appeal rights," said Mark Roth, AFGE's general counsel. "This case spotlights the abuses to the excepted service appointments when competitive service procedures should be used."

Roth said AFGE has discussed reforming the FCIP with President-elect Barack Obama's transition team. NTEU called on Obama in November to rescind the order establishing the program.

Judge Newman, concurring with Moore, wrote that the court should have addressed the constitutionality of FCIP, calling it the "primary issue" in the case.

Moore's ruling also did not address the Bush administration's claim that it is the president's prerogative to decide which jobs fall into the competitive and excepted service categories.

"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 in the case. "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."