The Federal Circuit has turned aside a veteran’s challenge to an agency’s decision to select off of a merit promotion list rather than from a competitive exam list. (Joseph v. Federal Trade Commission, C.A.F.C. No. 2007-3073, 11/5/07).
The Federal Trade Commission (FTC) announced a paralegal position and invited applications under both merit promotion and competitive procedures. Mr. Joseph was a veteran working at the Merit Systems Protection Board. He applied for the FTC job and asked that he be considered under both procedures. With his 10-point veterans’ preference, he was ranked first on the competitive list. Since he had civil service status, he was also considered under the merit promotion procedures, but did not receive a numerical boost for his veterans’ preference although he did make the top four list. After holding interviews, the agency opted to fill the position from the merit promotion list. It selected a current FTC employee who was a non-veteran. (Opinion, pp. 2-3)
Joseph appealed to the Merit Systems Protection Board, arguing that his veterans’ preference rights were violated. Because he worked at MSPB, the complaint was referred to the National Labor Relations Board for a hearing before one of its judges. The AJ sided with Joseph and ordered that FTC select him for the position. However, the Board reversed, pointing out that an applicant is not entitled to veterans’ preference under merit promotion procedures. (p. 4, citation omitted)
Joseph took his case to court, taking issue with the way the FTC opted to use the merit promotion procedures to fill the position. He argued that having conducted the open competition in which he received his 10-point preference, the FTC could not then select from the merit promotion list that did not reflect his preference. By doing so, the FTC effectively denied him his preference rights. (p. 4)
The court flatly rejects Joseph’s argument, holding that point addition to a veteran’s score only applies in the open competition examination process. In that process, the FTC did the right thing by adding 10 points to Joseph’s score. Under the merit promotion process, the veteran does not get a score boost, nor should he. “The question is whether the provisions governing veterans’ rights” prevented FTC from filling the position from the merit promotion list. The answer, according to the court is “no.” (p. 5)
The court opines that the law gives the veteran the “opportunity to compete” under merit promotion procedures, which is not to be read as an “entitlement to veterans’ preference that is not otherwise required by law.” In short, “We know of no statute or regulatory provision that required the Commission, once it undertook to inaugurate the selection process…to limit itself to the competitive examination process in making its final selection.” (p. 6)