The appeals court for the federal circuit has reversed and remanded a final decision by the Merit Systems Protection Board that stated that DoD did not violate the veterans’ preference rights of an applicant under the Federal Career Intern Program.
A preference-eligible veteran with service-connected disability rated at 30 percent or more applied for an auditor position with the Defense Contract Audit Agency through the FCIP, but was passed over for non-veteran applicants rated as category 4, even though he was rated category 1.
The DCAA selecting official requested and received permission from an HR manager to not hire the plaintiff, who was not notified as to why.
The plaintiff filed a complaint with the Labor Department to no avail, then with MSPB, saying "DCAA willfully violated his veterans’ preference rights under the VEOA when it failed to select him for any of the auditor-trainee positions, failed to request permission from OPM to pass him over and failed to notify him of its intent to pass him over."
In an initial decision, the administrative judge explained that the auditor positions were filled as excepted service positions under the FCIP, dismissing the plaintiff’s claims, and further pointed out that the plaintiff had not requested the reasons for being passed over.
MSPB also concluded that the FCIP constituted a valid exception to hiring in the competitive service because the FCIP was expressly authorized by executive order.
However, on further review, the appeals court found that OPM’s pass-over regulation, which demands only that an agency record why it passed over a preference-eligible, and convey it in writing upon request, is invalid, and also that the plaintiff’s veterans’ preference rights were in fact violated.
The appeals court concluded — in 2007-3292 – that federal law requires an agency appointing authority obtain OPM permission to pass-over the preference eligible and that it also provides additional protections for preference eligible candidates having a compensable service-connected disability of 30 percent or more.
For those individuals, the appointing authority, when it solicits OPM’s permission, must notify the preference eligible of the proposed pass-over, of the reasons thereof, and of his right to respond, the court said.
