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Kerner v. Departement of Interior

United States Court of Appeals, Federal Circuit

February 20, 2015

EDWARD P. KERNER, Petitioner,
v.
DEPARTMENT OF THE INTERIOR, Respondent

Petition for review of the Merit Systems Protection Board in No. CH3330110394-I-1.

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.

OPINION

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

Page 1337

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 ...


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