Career Intern Program Violates Veterans’ Preference

The MSPB held that the use of the Federal Career Intern Program (FCIP) to fill excepted service positions violated the Veterans Preference Act. David Dean v. OPM and Larry Evans v. Dept. of Veterans Affairs (DVA), 2010 MSPB 213 (11/2/10). These two consolidated cases asserted that agencies used the FCIP to avoid veterans’ preference rights as the interns could be converted to competitive service positions upon successful completion of the two or three-year internship without further competition. Evans complained about the VA issuing three vacancy announcements for nine GS-7 Veterans Service Representative (VSR) positions and filling all nine positions under the FCIP for which he was not considered. Dean alleged that the FCIP systematically discriminates against veterans by hiring employees under the FCIP without advertising the vacancies.

The Board initially found that both appellants had established jurisdiction under the Veteran Employment Opportunities Act of 1998 (VEOA). It rejected OPM’s argument that Dean’s appeal was barred because he didn’t apply for the positions in question because he was prevented from doing so. The Board held that 5 USC 3302(1) is a statute related to veterans’ preference as “the creation of exceptions from the competitive service necessarily implicates veterans’ preference rights.” It went on to hold that the improper placement of positions under the FCIP in the excepted service “allows agencies to avoid the statutory requirement that notice of competitive-service vacancies be made to the public.” The Board also held that the FCIP is flawed under 5 USC 3302(1) “because it is inconsistent with Civil Service Rules that govern placement of positions in the excepted service and because it does not require the justification of placement of positions in the excepted service as required by statute.” It noted that OPM’s regulations allow agencies to determine which positions will be filled under the FCIP. However, the Board declined to find that FCIP violates merit system principles.

The Board also found that Evans established a violation of his rights under 5 USC § 3302(1) and is entitled to the reconstruction of the hiring process for the VSR position. Holding that VA has not shown that it was “‘not practicable to hold a competitive examination,’ 5 C.F.R § 6.2 for the VSR position,” the Board ordered VA to “reconstruct the hiring process consistent with the law to determine whether the appellant would have been selected for the position he sought.” In a footnote, the Board noted that the President on May 11, 2010, ordered OPM to review the FCIP and provide recommendations concerning the future of that program within 90 days, but it had no knowledge of any planned modifications to the FCIP. Therefore, it remains to be determined what changes are in store for the FCIP.