Federal Career Intern Decision

That decision of the Merit Systems Protection Board on the Federal Career Intern Program (FCIP) is available online. Some key excerpts:

We hold that FCIP is inconsistent with the Civil Service Rules that govern placement of positions in the excepted service under 5 U.S.C. § 3302(1) -- a law relating to veterans’ preference -- because it allows an agency to invoke an appointing authority reserved for “positions . . . for which it is not practicable to hold a competitive examination” after the agency holds a competitive examination that yields highly-qualified preference-eligible candidates.

We wish to emphasize what we do not hold. Amicus NTEU [National Treasury Employees Union] asserts ... that FCIP violates the merit system principles because it allows hiring without “fair and open competition.” ... The cases before us, however, arise under the VEOA [Veterans Employment Opportunity Act]; the sole issue is whether the appellants’ rights under a statute or regulation relating to veterans’ preference have been violated. ...

In this connection, we overrule the statement in Gingery v. Department of Defense, 105 M.S.P.R. 671, ¶ 9 (2007), rev’d on other grounds, 550 F.3d 1347 (Fed. Cir. 2008), that FCIP is “a valid exception to the competitive examination requirement” because it is “authorized by an Executive Order.” ...

The Board has recognized that in unusual cases its decisions may have such a far-reaching impact on the workings of the government that the normal timeline for compliance should be extended. ... This appears to be such a case. At the same time, untold numbers of veterans are potentially being shut out of job opportunities for which they would have preference, because the agencies are filling the positions under FCIP without public notice. ... Balancing the foregoing considerations, we conclude that OPM must comply with 5 U.S.C. § 3302(1) within 120 days of the date of this decision instead of the customary 30 days.

This will have a massive effect upon future hiring at Social Security and other agencies. FCIP was probably intended to be a small part of federal hiring but has come to be a major way in which federal employees are hired. Of course, because of the elections results, Social Security may not be doing much hiring over at least the next two years.