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Court rules veterans' preference applies to excepted service jobs

By Alyssa Rosenberg arosenberg@govexec.com January 7, 2009

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.

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"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."

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COMMENTS

  • It is totally, absolutely not fair that qualified people, who are not veterans, are passed over for those that are. Just because these people made a conscious choice to enlist in the military does not give them cart blanche to Government jobs. I have been applying for a particular job in federal government and have obtained an educational background just for this area and have been continously passed over for this Veteran's Preference Act. What is this? Half of the people who I meet that are veterans can't even type so, how in the hell do they get these jobs when there are so many others unemployed. It's not right and I am mad as HELL! Ann Stevens Posted November 4, 2009 9:13 PM
  • Interesting thoughts. Here's my two cents: 1. Suzanne - President GW Bush is not a veteran. All he did was show up for a couple of reserve/national guard drills. He never served on active duty, ever. His position in the National Guard does not entitle him to any veterans benefits. To be eligible for veterans preference/benefits, you need to have served 36 months on active duty and received an honorable/general discharge. So President GW Bush and President Obama are both the same - neither ever really served in uniform. 2. Frank - I think your understanding of veteran's preference is wrong. The way the regulations are written under OPM, you may apply veteran's preference IF you meet all other qualifications. So, just being a 5 or 10 point veteran does not automatically qualify you to get the job. You have to meet all other qualifications, and then your veteran's preference will apply. For example, a veteran who does not have a law degree cannot use his veterans preference to become a government attorney. You have to meet all other qualifications of the job posting (ie, have an accredited law degree and be admitted to a state bar) in order to claim veteran's preference. So I think your suggestion that veteran's preference breeds a sense of entitlement among the "underserving" is entirely inaccurate. 3. John Tyner - you are ABSOLUTELY right about the faulty manner in which veteran's preference is being administered by government agencies. It is less about your status as a veteran, and more about your connections - the good old boy network indeed. I've applied to countless government agencies over the past year, and I've been appalled to watch non-veterans get selected for open positions because of who they know, even though I have far more qualifications AND have veteran's preference to boot. This issue is a lawsuit waiting to happen, but nobody has addressed it so far, because the major veterans organizations - AMVETS and VFW - are useless. Sam Posted October 5, 2009 1:22 PM
  • So true Mike, everyone for that matter. I believe that congress had intended this to be a benefit to us 30%+ veterans in the first place. Used to be that going to war and getting injured for your country meant something and entitled you to benefits. Thats the part Bush had no clue about. Tony Posted January 15, 2009 9:20 AM
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