The Merit Systems Protection Board on Nov. 2 issued a decision in the cases of David Dean and Larry Evans, preference-eligible veterans who claimed the government's use of FCIP did not allow them to compete fairly for federal employment. Dean alleged he was unable to apply for a federal job because FCIP openings do not meet the same public notice regulations as competitive service jobs. Evans applied for one of nine vacant GS-7 positions at the Veterans Affairs Department, but all of the jobs were filled using FCIP.
According to the board, the intern program presents two legal issues. First, it allows agencies to classify positions under excepted rather than competitive service, even after a vacancy announcement is posted and applications are received. FCIP also does not justify the placement of positions as excepted service or demonstrate it is "necessary" for "conditions of good administration," the ruling stated.
The decision requires the Office of Personnel Management to match FCIP with regulations set in Title 5 of the U.S. Code within 120 days. It also mandates that VA within 30 days reconstruct its hiring process for which Evans applied and inform him of its actions.
"The MSPB decision precludes OPM from continuing the Federal Career Intern Program until such time that OPM brings the program into compliance with Title 5," said Andres Grajales, assistant general counsel for the American Federation of Government Employees.
Federal employee unions and veterans groups have attacked the controversial FCIP, calling it a loophole through which agencies avoid veterans preference and fair competition for jobs, as well as an abuse of merit systems principles.
William Dougan, president of the National Federation of Federal Employees, said FCIP lacked internal controls for ensuring the program was used properly. There also were documented cases in which agencies used the program to bypass veterans on the hiring roster, he added.
"It's an important decision from the standpoint of it really reaffirms the intent of veterans preference and doesn't allow these types of excepted service hiring authorities to circumvent hiring veterans," said Dougan.
National Treasury Employees Union President Colleen Kelley praised the ruling. She has been pushing to eliminate FCIP and convert workers hired through the program to competitive service without loss of pay or benefits.
"I welcome this highly significant decision by the Merit Systems Protection Board, which ratifies NTEU's long-standing position regarding the illegality of the FCIP," said Kelley.
In his May memorandum on improving government hiring, President Obama directed OPM to review FCIP and develop an improvement plan. OPM Director John Berry said in September the plan had been submitted to the Office of Management and Budget and was under agency review. The proposal simplifies the process for students applying for federal jobs and could be made public later this fall, he added.
OPM is reviewing the board's decision.