Taking Exception

NTEU chief Colleen Kelley says intern program's special hiring authority has eroded employee rights.

Stephen Gingery, a veteran with disabilities, got an unusual Christmas present in 2008. The U.S. Court of Appeals for the Federal Circuit ruled on Dec. 24 that the Merit Systems Protection Board had erred when it decided that the Defense Department had not violated Gingery's veterans preference rights when it passed him over for a job and hired two candidates through the Federal Career Intern Program instead. The appeals court's ruling gives Gingery another chance at a federal job, but it did not address a critical question raised in his lawsuit and in another case filed by the National Treasury Employees Union. Is the FCIP, one of the most popular programs for bringing new employees into the federal government quickly, legal?

In a June report on federal hiring authorities, the Merit Systems Protection Board noted that FCIP has become the third most frequently used tool to bypass the competitive applications process. In fiscal 2005, the report said, almost 10,000 new hires came into government through the program, and in 2007, the number rose to 17,000. In General Schedule Grade 5 and Grade 7, more than half of new hires in fiscal 2005 were federal career interns.

Colleen Kelley, president of NTEU, says FCIP has become particularly prevalent as a hiring tool at some of the agencies where the union represents workers, including Customs and Border Protection, the Internal Revenue Service, and the Federal Deposit Insurance Corporation.

Employees who are hired under FCIP have a two-year probationary period instead of the one-year term for employees hired through the competitive process, and the Office of Personnel Management can extend that period up to three years under a waiver system. Kelley says the union does not believe agencies hire employees under FCIP with the intent to terminate them before their probationary periods are over, but Elaine Kaplan, senior deputy general counsel for the union, says NTEU has heard from a number of CBP officers who were terminated before the end of their second year at the agency and had no way to appeal their firings. FCIP participants also are supposed to participate in ongoing training programs.

Kelley says she recognizes that agencies are eager to find ways to expedite the hiring process, particularly as many of them anticipate that their budgets for staffing will increase, but will have to make those hires with pared-down human resources offices.

"NTEU would support a faster hiring process, but we want a faster hiring process that's fair, that follows the rules and that's accountable. This just morphed," she says. "It was supposed to be used for exception hiring, a limited-use special hiring authority."

The union argues FCIP has ex-panded beyond the confines of federal law, which limits exceptions to the competitive process to those that are "necessary" for "conditions of good administration." Instead, Kelley says, the program has introduced uncertainty into the federal workplace: FCIP participants worry about losing their jobs during probationary periods, job openings are not always posted widely, and agencies are unclear about how veterans preference rules apply to jobs that can be filled by federal career interns.

"The belief that long-standing competitive hiring procedures are inconvenient or require improvements to attract exceptional candidates is not a legitimate basis for exercising 'excepted' hiring authority," NTEU wrote in its amicus brief in the Gingery case. "To the extent that the president or OPM has concluded that improvements must be made to statutory procedures, the way to effect those improvements is through legislation, not through the 'excepted' appointment authority that Congress intended to be narrow and tailored to particular circumstances."

The Bush administration pushed back by saying the president has sole authority to determine which jobs need to be filled through the competitive 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 Katsas in the Justice Department's filing in the Gingery 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."

NTEU's Kaplan believes that argument was patently rejected in the 1989 ruling in NTEU v. Horner, in which the union sued OPM to stop a rule that would have blocked General Schedule increases for special rate employees. But she says if the union's separate case against FCIP is argued on its merits (currently the suit is delayed by procedural matters), the union's lawyers will assert that "history shows that competitive hiring is preferred," and the government's position is based on a willful misreading of history.

Kelley hopes the union won't have to return to court. NTEU recommended to President Obama's transition team that the executive order authorizing FCIP be rescinded, and that current federal career interns automatically be converted to competitive civil service employees. She says transition team members indicated that they clearly understood FCIP's implications, and were willing to hear NTEU out.

But Kelley acknowledges, "I don't have any kind of a timeline of when we might see some action. I hope soon."