# United States **Court of Appeals**  **for the Federal Circuit**

______________________ EDWARD P. KERNER, Petitioner,

v.

DEPARTMENT OF THE IN TERIOR, Respondent.

______________________
2014

- 3012

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

______________________
Decided : February 20, 2015

______________________ G LENN L. S MITH , Wheeler Upham, P.C., of Grand Ra pids, Michigan, argued for petitioner.

H ILLARY A. S TERN , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, argued for respon dent. With her on the brief were S TUART F. D ELERY , Assistant Attorney General, R OBERT E. K IRSCHMAN , J R ., Director, and C LAUDIA B URKE , Assistant Director.

______________________ Before C HEN , L INN , and H UGHES , Circuit Judges.KERNER v. INTERIOR 2

H UGHES , Circuit Judge

. Edward Kerner applied for two merit

- promotion v acancies 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 Em ployment 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 appl y to preference

- eligible vete rans not already empl oyed in the f ederal civil service , not to current federal employees seeking merit promotions

. Accordingly
, we affirm the Merit System s Protection Board’s final decision denying Mr. Kerner ’s claim.
I In 2010, wh ile Mr. Kerner was an Evidence Custod ian , GS -0 5, wit h the Department ’s Fish and Wildlife Service , he applied for two vacancies within the Depar tment: Wildlife Inspector, GS

- 09/11, and Wildlife Inspe ctor, GS

- 11/11. Both positions were merit -promotion vacancies . E ach required federal employee appl icants to meet a time

- in

- grade re quirement

. 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 a t least fifty

- two weeks of experience equivalent to GS- 09 to be qualified for the GS

- 11 posi tion

. 5 C.F.R. § 300.604. The vacancies also required one year of specialized experience in the f ederal civil service equi valent 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 r equirements. Accordingly, the Department determinedKERNER 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 D epartment of Labor, alleging that the Department violated his VEOA rights when it remo ved his applications from consideration for not meeting the time

- in

- grade requir ements . The Department of Labor determined that Mr. Ker ner ’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 u nless it is arbitrary, capricious, an abuse of discr etion, 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 revi ew 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 se rvice : open competition and merit pro motion

. Open comp etition is used for employees seeking to join the competitive service. Joseph v. FTC , 505 F.3d 1380, 138 1 (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 exper ience and determined that he was qualified for GS

- 05, because he did not have the specialized experience r equired for the next grade.KERNER v. INTERIOR 4

from outside the agency who has ‘ status’ in the compet itive service.” Id.
When a federal agency posts a merit

- promotion v acancy that accepts applications from individuals outside its own workforce, preference

- eligible veterans “may n ot 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 indivi duals outside the Department ’s work force

. 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 requir ement s

. 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) f or service in the armed forces when his e mployment in a similar vocation to that for which examined was interrupted by the se rvice; and (2) f or all experience material to the position for which examined, including experience gained in religious, civic, welfare, service, and organ izational activities, regardless of whether he r eceived 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 -f ederal civil service experience equivalent to experience at the GS

- 07 and GS

- 09 level s . Thus, accor ding to Mr. Kerner, he would have m et the time

- in

- grade requirements

.KERNER v

. INTERIOR 5

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

. T he statutory language, the legislative history, and the case law do not support t his argument

. Congress enacted § 3311 as part of the Veterans ’ Pre ference Act , the precursor to the VEOA. Courts have interpreted the Veterans ’ Preference Act to give prefe rence 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 , nam ely, that veterans are not accorded any preference under the VPA when seeking promotion or intra

- agency tran sfers.”); see also Bates v. Runyon , 97 F.3d 1464
, 1996 WL 532210, at *2 (10 th 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. P

ostal S erv

. , 939 F.2d 1516, 1523 (11 th Cir. 1991 ) (“[V]eterans’ preference only applies to initial emplo yment, not to movement of an incumbent employee from one job to another within an agency.”); Stephens v. Col eman , 712 F. Supp. 1571, 1581 (N.D. Ga. 1989) (“[N]either the [VPA] nor the

. . . regulation s promulgated thereunder accord veterans preferential treatment in promotions.”)
, aff’d , 901 F.2d 1571 (11 th Cir. 1990)

. The text of the VEOA shows that it is intended to a ssist veterans in gaining access to federal civil service employment, not to give veterans preference in merit promotions. The VEOA ’s title itself

— “Veterans Emplo yment 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
,KERNER v. INTERIOR 6

wh ich amended § 3304(f), is titled “Access for Veterans,” showing that the VEOA is intended to help veterans g ain access to federal employment, not preferential treatment in promotion decisions

. See i d. at § 2. Additionally, § 3304(f)(4) states that merit -promotion vacancies accepting applications from outside the agency’s workforce must announce that preference

- eligible vete rans are “ eligible to apply .” This language show s that Congress inten ded the VEOA to assist veterans otherwise ineligible to apply

. Veterans already employed by the competitive service are already “ eligible to apply ” to merit

- promotion vacan cies , and thus cannot be the i ntended target for § 3304(f). The legislative history of the VEOA confirms that Congress did not intend for § 3304 to apply when a vete ran or other preference

- eligible applicant is already e mployed in f ederal 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 C ONG . R EC

. 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 hono rably discharged from the military . . . by eliminating artificial barriers w hich prevent them from competing for Federal jobs because they are not already civilian employees or employees of a particular agency .” ) (em phasis ad ded); 144 C ONG . R EC

. 24,806 (1998), ( statement of Rep. Mica ) (“V ery often,

. . . Federal agen cies will only allow current civilian employees to apply for vacancies. Veterans 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

. UnderKERNER 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. ”) (emph asi s added) ; id. at 24,808 ( statement of Rep. Pappas ) ( “I rise today to support our veterans by call ing 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 .” ) (emphas i s added). In light of this ev idence, 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 dete rmining 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 arg uments and find them unpersuasive. Accordingly, we affirm the Board’s denial of Mr. Kerner ’s claims.
AFFIRMED
No costs.