Kerner v. Dep't of the Interior

• Decision Date: 20 February 2015
• Docket Number: No. 2014–3012.,2014–3012.
• Parties: Edward P. KERNER, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

778 F.3d 1336

Edward P. KERNER, Petitioner,

v.DEPARTMENT OF THE INTERIOR, Respondent.

No. 2014–3012.

United States Court of Appeals, Federal Circuit.

Feb. 20, 2015.

Glenn L. Smith, Wheeler Upham, P.C., of Grand Rapids, Michigan, argued for petitioner.

Hillary A. Stern, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Claudia Burke, Assistant Director.

Before CHEN, LINN, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge.

Edward Kerner applied for two merit-promotion vacancies at his employing agency, the Department of the Interior, but his applications were rejected because he did not meet the time-in-grade requirements necessary to be considered for the positions. He now claims that the agency violated the Veterans Employment Opportunity Act (VEOA) by not crediting his military and non-federal service when determining whether he met the time-in-grade requirements. But the provisions on which Mr. Kerner relies only apply to preference-eligible veterans not already employed in the federal civil service, not to current federal employees seeking merit promotions. Accordingly, we affirm the Merit Systems Protection Board's final decision denying Mr. Kerner's claim.

I

In 2010, while Mr. Kerner was an Evidence Custodian, GS–05, with the Department's Fish and Wildlife Service, he applied for two vacancies within the Department: Wildlife Inspector, GS–09/11, and Wildlife Inspector, GS–11/11. Both positions were merit-promotion vacancies. Each required federal employee applicants to meet a time-in-grade requirement. A federal civil service applicant must have completed at least fifty-two weeks of experience equivalent to GS–07 to be qualified for the GS–09 position, and at least fifty-two weeks of experience equivalent to GS–09 to be qualified for the GS–11 position. 5 C.F.R. § 300.604. The vacancies also required one year of specialized experience in the federal civil service equivalent to GS–07 or GS–09, respectively. Mr. Kerner had no federal civil service experience at the GS–07 or GS–09 level and, therefore, did not meet the time-in-grade requirements. Accordingly, the Department determined that he did not qualify for either of the Wildlife Inspector vacancies.¹

Mr. Kerner then filed a VEOA claim with the Department of Labor, alleging that the Department violated his VEOA rights when it removed his applications from consideration for not meeting the time-in-grade requirements. The Department of Labor determined that Mr. Kerner's VEOA rights were not violated, and Mr. Kerner appealed to the Merit Systems Protection Board. The Board affirmed. Mr. Kerner appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II

We must affirm a Merit Systems Protection Board decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c). We review statutory and regulatory interpretations de novo. Kievanaar v. Office of Pers. Mgmt., 421 F.3d 1359, 1362 (Fed.Cir.2005).

Federal agencies generally use two types of selection processes when filling vacancies in the competitive service: open competition and merit promotion. Open competition is used for employees seeking to join the competitive service. Joseph v. FTC, 505 F.3d 1380, 1381 (Fed.Cir.2007). Merit promotion is “used when the position is to be filled by an employee of the agency or by an applicant from outside the agency who has ‘status' in the competitive service.” Id.

When a federal agency posts a merit-promotion vacancy that accepts applications from individuals outside its own workforce, preference-eligible veterans “may not be denied the opportunity to compete” for the vacancy. 5 U.S.C. § 3304(f)(1). It is undisputed that the Wildlife Inspector vacancies at issue here were merit-promotion vacancies that accepted applications from individuals outside the Department's workforce.

Mr. Kerner argues that the Department violated his VEOA rights under § 3304(f) because it did not credit his non-federal civil service experience under § 3311 when determining whether he met the time-in-grade requirements. Section 3311 reads:

In examinations for the competitive service in which experience is an element of qualification, a preference eligible is entitled to credit

(1) for service in the armed forces when his employment in a similar vocation to that for which examined was interrupted by the service; and

(2) for all experience material to the position for which examined, including experience gained in religious, civic, welfare, service, and organizational activities, regardless of whether he received pay therefor.

Mr. Kerner argues that if the Department had considered all of his experience, it would have found at least fifty-two weeks of non-federal civil service experience equivalent to experience at the GS–07 and GS–09 levels. Thus, according to Mr. Kerner, he would have met the time-in-grade requirements.

Mr. Kerner's argument assumes that § 3304(f) requires federal agencies to apply § 3311 to merit-promotion vacancies that accept applicants from outside the agency's workforce, even when the applicant is already employed in the federal civil service. The statutory language, the legislative history, and the case law do not support this argument.

Congress enacted § 3311 as part of the Veterans' Preference Act, the precursor to the VEOA. Courts have interpreted the Veterans' Preference Act to give preference in a veteran's initial appointment to the federal civil service, but not to an employee's transfer or other intra-agency movement, such as promotions. Brown v. Dep't of Veterans Affairs, 247 F.3d 1222, 1224 (Fed.Cir.2001) (“We affirm the proposition established in Crowley, namely, that veterans are not accorded any preference under the VPA when seeking promotion or intra-agency transfers.”); see also Bates v. Runyon, 97 F.3d 1464, 1996 WL 532210, at *2 (10th Cir.1996) (“[J]udicial interpretation clearly establishes that veterans' preference does not apply to an employee's transfer or other intra-agency movement.”) (unpublished table decision); Glenn v. U.S. Postal Serv., 939 F.2d 1516, 1523 (11th Cir.1991) (“[V]eterans' preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency.”); Stephens v. Coleman, 712 F.Supp. 1571, 1581 (N.D.Ga.1989) (“[N]either the [VPA] nor the ... regulations promulgated thereunder accord veterans preferential treatment in promotions.”), aff'd,901 F.2d 1571...