So Much Merit, It Requires Two Procedures for Hiring

An unsuccessful job applicant took his case to court arguing an agency violated the veterans preference legislation. Not so, said the agency, as veteran’s preferences do not apply to a non-competitive appointment list.

An agency vacancy announcement process troubled the Federal Circuit, so it has decided to vacate and remand the case to the Merit Systems Protection Board to develop a factual record. (Dean v. Consumer Product Safety Commission, C.A.F.C. No. 2007-3038 (nonprecedential), 2/28/07)

The Consumer Product Safety Commission posted a vacancy announcement for a Products Safety Investigator position in its Columbia, South Carolina office. There was a proviso that status candidates and special hiring authority eligibles who wanted to be considered for the position under both merit promotion procedures as well as under their status/special hire eligibility, were required to submit two complete applications. If they submitted only one application, then they would be considered only under one or the other procedure.

Mr. Dean submitted one application, identified himself as a 30% disabled, preference-eligible veteran, and asked that he be considered for non-competitive appointment.

The agency put together two lists of candidates for the position. Mr. Dean’s name ended up on the non-competitive list. However, the vacancy was filled from the “competitive” merit promotion list, so Dean’s candidacy “apparently received no consideration….” (Opinion p. 2)

The Merit Systems Protection Board judge dismissed Dean’s appeal and the full Board declined to review. However, Chairman McPhie filed an opinion “raising concerns about the use of two lists.” (p. 3) He pointed out that the Board has not ruled on whether the procedure followed by the agency in this case was legal and stated his concern about the multiple application procedure.

Dean took his case to the appeals court arguing that the agency had violated the Veterans Employment Opportunities Act and the Uniformed Services Employment and Reemployment Rights Act. The agency argued that veteran’s preferences do not apply to the non-competitive appointment list on which Dean’s application was placed at his request.

The court was obviously troubled, but had little basis to do much more than reverse and remand for further proceedings by the Board: “The record is undeveloped, and the Agency did not explain the reasons for this procedure. However, in view of the impact on Mr. Dean…and given Mr. Dean’s veteran’s preferance status, the procedure on its face raises questions. We conclude that the Board erred in declining Mr. Dean’s request to consider the validity of the procedure as practiced by the Agency.” (p. 5)

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.