Kerner v. Interior , 778 F.3d 1336 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
EDWARD P. KERNER,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
______________________
2014-3012
______________________
Petition for review of the Merit Systems Protection
Board in No. CH3330110394-I-1.
______________________
Decided: February 20, 2015
______________________
GLENN L. SMITH, Wheeler Upham, P.C., of Grand Rap-
ids, Michigan, argued for petitioner.
HILLARY A. STERN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent. 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.
2 KERNER v. INTERIOR
HUGHES, Circuit Judge.
Edward Kerner applied for two merit-promotion va-
cancies 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 veter-
ans 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 Custodi-
an, GS-05, with the Department’s Fish and Wildlife
Service, he applied for two vacancies within the Depart-
ment: Wildlife Inspector, GS-09/11, and Wildlife Inspec-
tor, 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 equiv-
alent 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 re-
quirements. Accordingly, the Department determined
KERNER v. INTERIOR 3
that he did not qualify for either of the Wildlife Inspector
vacancies. 1
Mr. Kerner then filed a VEOA claim with the De-
partment of Labor, alleging that the Department violated
his VEOA rights when it removed his applications from
consideration for not meeting the time-in-grade require-
ments. 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 de-
cision unless it is arbitrary, capricious, an abuse of discre-
tion, 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 ser-
vice: open competition and merit promotion. Open compe-
tition 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
1 Mr. Kerner was eventually granted a non-
competitive excepted Veterans’ Recruitment Appointment
to Wildlife Inspector, GS-05/11, in 2011. At that time, the
Department considered Mr. Kerner’s non-federal experi-
ence and determined that he was qualified for GS-05,
because he did not have the specialized experience re-
quired for the next grade.
4 KERNER v. INTERIOR
from outside the agency who has ‘status’ in the competi-
tive service.” Id.
When a federal agency posts a merit-promotion va-
cancy 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 require-
ments. 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 em-
ployment in a similar vocation to that for
which examined was interrupted by the ser-
vice; and
(2) for all experience material to the position for
which examined, including experience gained
in religious, civic, welfare, service, and organi-
zational activities, regardless of whether he re-
ceived 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, accord-
ing to Mr. Kerner, he would have met the time-in-grade
requirements.
KERNER v. INTERIOR 5
Mr. Kerner’s argument assumes that § 3304(f) re-
quires 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’ Pref-
erence Act, the precursor to the VEOA. Courts have
interpreted the Veterans’ Preference Act to give prefer-
ence 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, name-
ly, that veterans are not accorded any preference under
the VPA when seeking promotion or intra-agency trans-
fers.”); 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 employ-
ment, not to movement of an incumbent employee from
one job to another within an agency.”); Stephens v. Cole-
man, 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 (11th Cir. 1990).
The text of the VEOA shows that it is intended to as-
sist veterans in gaining access to federal civil service
employment, not to give veterans preference in merit
promotions. The VEOA’s title itself—“Veterans Employ-
ment Opportunity Act”—shows that its purpose is to help
veterans get the opportunity for federal employment. See
Pub. L. No. 105-339, 112 Stat 3182. And § 2 of the VEOA,
6 KERNER v. INTERIOR
which amended § 3304(f), is titled “Access for Veterans,”
showing that the VEOA is intended to help veterans gain
access to federal employment, not preferential treatment
in promotion decisions. See id. at § 2.
Additionally, § 3304(f)(4) states that merit-promotion
vacancies accepting applications from outside the agency’s
workforce must announce that preference-eligible veter-
ans are “eligible to apply.” This language shows that
Congress intended the VEOA to assist veterans otherwise
ineligible to apply. Veterans already employed by the
competitive service are already “eligible to apply” to
merit-promotion vacancies, and thus cannot be the in-
tended target for § 3304(f).
The legislative history of the VEOA confirms that
Congress did not intend for § 3304 to apply when a veter-
an or other preference-eligible applicant is already em-
ployed in federal civil service. When introducing the
original version of the VEOA, Senator Charles Hagel
stated that the purpose of the VEOA was to help veterans
“get and hold jobs with the Federal Government.” 143
CONG. REC. 14,682 (1997) (emphasis added). There was
no mention of promotion preference for veterans already
employed in the competitive service. Indeed, statements
show that the VEOA was specifically targeted to veterans
not already employed in the federal civil service. E.g., id.
at 5,258 (statement of Rep. Maloney) “[T]he VEOA opens
Federal employment opportunities for individuals honor-
ably discharged from the military . . . by eliminating
artificial barriers which prevent them from competing for
Federal jobs because they are not already civilian employ-
ees or employees of a particular agency.”) (emphasis add-
ed); 144 CONG. REC. 24,806 (1998), (statement of Rep.
Mica) (“Very often, . . . Federal agencies will only allow
current civilian employees to apply for vacancies. Veter-
ans who do not work for the Federal Government are
barred from even competing on their merits for these jobs.
That will change when this legislation is enacted. Under
KERNER v. INTERIOR 7
this bill whenever an agency opens the competition to
civilian employees outside of its own workforce, it must
also allow these qualified veterans to compete.”) (empha-
sis added); id. at 24,808 (statement of Rep. Pappas) (“I
rise today to support our veterans by calling for the
passage of . . . the Veterans Employment Opportunity Act
of 1998. . . . For too long many of our nation’s veterans
have been neglected by our own government when it
comes to obtaining federal employment.”) (emphasis
added).
In light of this evidence, we conclude that 5 U.S.C.
§§ 3304(f) and 3311 do not require a federal agency to
consider non-federal civil service experience when deter-
mining whether a veteran employed in the federal civil
service meets a time-in-grade requirement for purposes of
a merit promotion.
We have considered Mr. Kerner’s remaining argu-
ments and find them unpersuasive. Accordingly, we
affirm the Board’s denial of Mr. Kerner’s claims.
AFFIRMED
No costs.