Veterans Employment Opportunity Act and Merit Promotions

By on February 24, 2015 in Court Cases, Current Events with 26 Comments

The Federal Circuit just issued an opinion that impacts military veterans already on a federal agency’s civilian payroll in Kerner v. Department of the Interior (USCAFC No. 2014-3012, 2/20/15). The facts are taken from the court’s opinion.

Mr. Kerner, a military veteran, already worked for the Department of Interior’s Fish and Wildlife Service when he applied for two separate merit promotion vacancies within the agency. Each had specific time-in-grade requirements that Kerner’s civilian service did not meet. Kerner was a GS-05 and the vacancies he applied for required that he have at least a year of experience equivalent to GS-07 to qualify for the GS-09 advertised position, or one year equivalent to GS-09 to qualify for the GS-11 advertised position. The agency therefore determined he did not qualify for either vacancy. (Opinion, pp. 2-3)

Mr. Kerner took his case to the Department of Labor. He argued that the agency had violated his VEOA rights by not crediting his military and non-federal service toward the time-in-grade determination. DoL disagreed, as did the Merit Systems Protection Board when Kerner subsequently appealed his case. (p. 3)

Mr. Kerner presented his argument to the appeals court but has now met with the same result.

The court acknowledges that when an agency opens merit promotions to outsiders, as was the case here, “preference-eligible veterans ‘may not be denied the opportunity to compete.’” (p. 4) After examining the legislative history, the court concluded the VEOA was “intended to assist veterans in gaining access to federal civil service employment, not to give veterans preference in merit promotions.” (p. 5) So, while the agency had to allow veterans not already employed by the government to apply and be considered for the merit promotions, it was not required to give those already employed in the agency, such as Mr. Henson, any preferential treatment. (pp. 5-6)

In short, while agencies must continue to follow VEOA to bootstrap veterans still outside federal employment, they are not required by the VEOA “to consider non-federal civil service experience when determining” whether time-in-grade requirements have been met for purposes of merit promotion. (p. 7)

Kerner v. DOI (2014-3012)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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