Federal Circuit Sides With Disabled Vets on Excepted Service Positions

The Federal Circuit of Appeals has concluded that the OPM regulation on excepted service positions violates the law. It is “at odds with the statutory protections Congress guaranteed these [30% or more disabled] veterans.”

The Federal Circuit has concluded that the Office of Personnel Management’s regulations applicable to filling excepted service positions are invalid insofar as their treatment of veterans with a 30% or more disability is concerned. (Gingery v. Department of Defense, C.A.F.C. No. 2007-3292, 12/24/2008)

The court has ruled that the Defense Contract Audit Agency violated Mr. Gingery’s rights under the Veterans Employment Opportunities Act (VEOA) of 1998 by not selecting him for an excepted position filled under the Federal Career Intern Program (FCIP). The facts are taken from the court’s opinion.

DCAA advertised three (later reduced to two) positions under the  FCIP. Gingery was a preference-eligible veteran applicant with a 30% service connected disability. The agency used a category rating system that resulted in Gingery being the only applicant placed in Category 1. There were no applicants placed in Category 2 or 3 and six candidates were placed into Category 4. Since Category 1 had only one candidate, DCAA considered the Category 4 applicants together with Mr. Gingery who was the only candidate with veterans’ preference. (Opinion p. 4)

As you may have guessed, the review panel did not recommend Mr. Gingery for a second interview and two other applicants from Category 4 were hired to fill the two positions. (p. 4) The agency recorded its reasons for not selecting Gingery, did not request OPM permission to bypass him, but did get permission from an agency human resources manager to bypass him. Gingery was not given notice that he was bypassed nor the reasons for passing him over, and he was not given a chance to respond. (pp. 4-5)

Mr. Gingery filed a VEOA complaint with the Department of Labor and subsequently took his case to the Merit Systems Protection Board. He argued that the agency had violated his veterans’ preference rights. (p. 5)

The Board concluded that the FCIP was a valid exception to using competitive procedures, that DoD followed the required OPM procedures for filling a FCIP position, and that the agency did not violate Gingery’s veterans’ preference rights. (p. 5)

The appeals court now disagrees and has reversed and remanded the case to the MSPB. (p. 1) The court frames the issue this way: "The precise question at issue in this case is what procedures an agency should follow when it passes over a preference eligible having a compensable service- connected disability of 30% or more and selects a nonpreference eligible for a position in the excepted service." (p. 7)

The court noted that had it been filling a competitive service position the agency would have had to get OPM’s permission to pass over Gingery. And because he has a service-connected disability of 30% or more the agency would be required to notify Gingery that he had been passed over, document their reasons for doing so, give him those reasons, and give him a right to respond.

The court points out that OPM’s regulation on filling an excepted service position simply requires that the agency document its reasons for passing over the veterans’ preference-eligible applicant and provide its reasons to him/her upon request. (pp. 7-8)

The court has concluded that the OPM regulation on excepted service positions violates the law. It is "at odds with the statutory protections Congress guaranteed these [30% or more disabled] veterans." (p. 11) The court holds the OPM regulation "invalid because it does not give effect to the unambiguously expressed intent of Congress…There is no question that the requirements of [the law] … were not met in this case."

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.