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 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.
2 KERNER v. INTERIOR

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-ingrade 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 GS09 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 
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 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 

1 Mr. Kerner was eventually granted a noncompetitive excepted Veterans’ Recruitment Appointment 

to Wildlife Inspector, GS-05/11, in 2011. At that time, the 

Department considered Mr. Kerner’s non-federal experience and determined that he was qualified for GS-05, 

because he did not have the specialized experience required for the next grade. 

 
4 KERNER v. INTERIOR

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. 
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. 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 intraagency 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 (11th Cir. 1990). 

The text of the VEOA shows that it is intended to assist veterans in gaining access to federal civil service 

employment, not to give veterans preference in merit 

promotions. The VEOA’s title itself—“Veterans Employment 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 veterans 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 intended target for § 3304(f). 

The legislative history of the VEOA confirms that 

Congress did not intend for § 3304 to apply when a veteran or other preference-eligible applicant is already employed 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 honorably discharged from the military . . . by eliminating 

artificial barriers which prevent them from competing for 

Federal jobs because they are not already civilian employees or employees of a particular agency.”) (emphasis added); 144 CONG. REC. 24,806 (1998), (statement of Rep. 

Mica) (“Very often, . . . Federal agencies 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. 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.”) (emphasis 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 determining 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 arguments and find them unpersuasive. Accordingly, we 

affirm the Board’s denial of Mr. Kerner’s claims.

AFFIRMED

No costs.