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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.

COMMENTS

• I have worked for the Marine Corps over 13 years, the Navy 2 & 1/2 years, and the Coast Guard 7 years; all these agencies have made positions for retiring military personnel or hired them in the highest grade positions available. It's called a Return for the Investment. Every position I have ever applied for states a qualified Veteran will have the first shot at the position; with their military status they usually rank ahead of any civilian with points. I'm sure there are some agencies that do not go by the Book on hiring. I called a draw on one Human Resource office on their hiring practice and they backed down; they knew I caught them red-handed in nepotism. Civilian Worker Posted October 21, 2008 12:35 PM
• “Unfortunately the more non-veteran employees that are put in charge of hiring decisions the fewer veterans we seem to get.” Amazing… There is nothing inherently wrong with that statement by GS-7, it’s just that from so many others we hear of the unending assault on career progress from management hiring ex-military chums. The only data I have to compare such hiring is from the “Federal Civilian Workforce Statistics, The Fact Book” the latest of which is the 2006 Edition. I must say that OPM has made it QUITE difficult to get a copy of the new 2007 in its entirety. The latest figures seem to indicate 24.5% of us are veterans. Except in specific instances of “capping”, that seems like a reasonable percentile. Perhaps someone out there has some data on the initial entry grades for veterans? Tip off Posted October 20, 2008 3:46 PM
• Unfortunately the more non-veteran employees that are put in charge of hiring decisions the fewer veterans we seem to get. My Chief has cancelled positions and left them unfilled rather than hiring one of the two veterans who were qualified. One of them appeared to be very well qualified for the (GS-5/6) position as a library technician. She didn't even interview them. It appears to me she just didn't want a veteran. I work for the VA hospital, we should be hiring as many QUALIFIED vets as possible. GS-7 Posted October 20, 2008 9:33 AM