In Gingery v. Department of Defense, the Federal Circuit held that the Defense Contractor Audit Agency (“DCAA”) violated the Veterans Employment Opportunities Act (“VEOA”) by hiring two non-preference eligible individuals for an excepted service position under the Federal Career Intern Program (“FCIP”) instead of Stephen Gingery, a disabled veteran and preference eligible candidate.  In his complaint, Gingery alleged that the DCAA willfully violated his veterans’ preference rights under the VEOA when it failed to select him for any of the auditor-trainee positions, failed to notify him of its intent to pass him over, and failed to request permission from the Office of Personnel Management (“OPM”) to pass him over in accordance with the procedures set forth under 5 U.S.C. § 3318(b).

The Merit Systems Protection Board (“MSPB”) dismissed Gingery’s assertions, concluding that the Department of Defense (“DoD”) complied with the required OPM procedures for filling a FCIP position and thus, did not violate Gingery’s preference rights under the VEOA.  The Federal Circuit reversed, concluding that the OPM passover regulation was invalid because it contradicted with the statutory protections guaranteed to veterans with a 30% or more disability.   Finding that the agency did not satisfy the statutory requirements of Section 3318 in filling the FCIP position, the Federal Circuit remanded the case to the MSPB.

This case is significant because it establishes the procedures that an agency must follow when it decides to pass over a preference eligible candidate with a compensable service-connected disability of 30% or more and select a non-preference eligible candidate for a position in the excepted service.  For more information on veteran rights, click here.