On November 5, 2007, the United States Court of Appeals for the Federal Circuit affirmed the Merit Systems Protection Board’s decision in Joseph v. Federal Trade Commission, 103 M.S.P.R. 684 (2006), clarifying the applicability of the Veterans Employment Opportunities Act of 1998 (VEOA). Joseph v. Federal Trade Commission, Case No. 2007-3073. This case resulted from the 2004 non-selection of Mr. Joseph for a paralegal position at the Federal Trade Commission (FTC). Joseph was an employee of the Merit Systems Protection Board (MSPB) and a veteran entitled to a 10-point selection preference under the VEOA. The FTC advertised the vacancy for this position as open to all applicants, noting that it would be employing both merit promotion procedures and open competitive procedures for the post. The announcement permitted applicants to apply under one or both procedures if they chose; Joseph requested that his application be considered under both selection procedures.
After review of the applicants, the FTC issued three separate certificates of qualified applicants. Joseph and the selectee appeared on both the merit promotion certificate and on the competitive selection (Delegated Examining Unit (DEU)) certificate. No scores appeared on the merit promotion certificate for the four candidates listed there, but the DEU certificate showed Joseph having both a higher raw score than the selectee (92 versus 90 points) and a higher adjusted score reflecting his veterans’ preference (102 versus 90) among the three candidates listed there. One non-competitive applicant was also identified on a third certificate. After interviews, the FTC opted to make its selection under the merit selection procedures and did not select Joseph.
Joseph requested a Department of Labor investigation of this nonselection and then appealed the nonselection to the MSPB. Because Joseph was a MSPB employee, the case was heard by an ALJ of the National Labor Relations Board. The ALJ found a VEOA violation and ordered reconstruction of the paralegal selection. The FTC appealed to the MSPB, and the full Board reversed the ALJ’s decision.
Joseph appealed to the Federal Circuit, not specifically challenging the FTC’s right to use alternative selection procedures for a selection, but instead the FTC’s decision to use the merit selection procedures in this instance. Pursuant to the VEOA, the FTC under open competition procedures would have been required to select Joseph as the highest-scoring applicant on the certificate unless it procured written authorization from the Office of Personnel Management. Under merit selection procedures, the VEOA only permitted Mr. Joseph to compete against internal agency candidates; no point preference or required selection rights for veterans apply. No OPM authorization existed in this case.
The Federal Circuit held that the FTC, in using more than one selection methodology under the vacancy announcement, was permitted to use any one of the selection methodologies so identified to actually make the selection. To paraphrase the court, the FTC was free to use “the selection process that it deems most suitable for filling the particular vacancy.” Since the merit selection procedures were lawful, the FTC was entitled to use them to the exclusion of all other procedures identified in the vacancy announcement. The court found that those procedures only entitled Joseph to be considered for selection alongside internal FTC candidates without additional preference, and that the FTC was entitled then to select among the candidates on the merit selection certificate without special preference. Accordingly, the court found that the FTC’s nonselection of Joseph was in compliance with the VEOA.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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