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Washington, D.C.—In a move that underscores the importance of the case to federal employees, the National Treasury Employees Union (NTEU) will participate in oral arguments, set for Oct. 10, before a federal appeals court in a matter threatening to erode merit-based civil service competitive hiring practices.

The case before the U.S. Court of Appeals for the Federal Circuit is Gingery v. Department of Defense (No. 2007-3292), in which NTEU has filed a friend-of-the-court brief. In a rare move, the appeals court granted NTEU’s motion that it be allowed to participate in oral argument. Generally, only the formal parties to a case are permitted to take part in oral argument.

At issue is the growing use by federal agencies of the Federal Career Intern Program (FCIP), which has been characterized as a limited-use, narrow-focus program aimed at providing structured, two-year training and development internships. Instead of being limited in scope, it is the most egregious and fastest-growing example of how federal agencies are moving away from merit-based civil service requirements and traditions. The Gingery case alleges that the FCIP violates long-standing statutory provisions that require the use of competitive hiring procedures for federal hiring, and that the use of this illegal hiring authority violates veterans’ preference rights.

Separately, NTEU has sued the Office of Personnel Management (OPM) challenging the legality of its FCIP regulations. That suit, NTEU vs. Springer, is pending in the U.S. District Court for the District of Columbia awaiting the court’s ruling on OPM’s motion to dismiss the case on procedural and jurisdictional grounds. If the court agrees with NTEU on these preliminary issues, NTEU will then ask the court to rule on the merits that OPM’s regulation establishing the FCIP violates fundamental civil service requirements mandating fair and open competition for federal jobs.

NTEU President Colleen M. Kelley has been particularly vocal about the widespread growth of the FCIP, the use of which during the 2004-2007 period rose by 147 percent—from 6,800 positions to 17,000 positions. During that same time frame, the number of merit-based hires increased by a mere two percent.

“FCIP has become the tool of choice to circumvent competitive hiring practices,” the NTEU leader said. “It narrows the applicant pool, forecloses opportunities for promotion and creates a perception of unfair and arbitrary treatment.”

Under the FCIP, vacancy announcements do not have to be posted, veterans’ preference rights are diminished and agencies have discretion to make selection decisions without following rating and ranking processes or merit promotion plans. Moreover, agencies use the FCIP’s two-year “internship” period to evade the one-year probationary period normally applying to new hires.

The problem hits hard in NTEU-represented workplaces. For example, U.S. Customs and Border Protection has used the FCIP to fill all entry-level officer positions; other agencies, including the Internal Revenue Service (IRS) and the Federal Deposit Insurance Corporation, use the program to fill a variety of openings—including the key IRS positions of revenue officer and revenue agent.

This abuse of the FCIP, President Kelley said, “sharply undercuts the fundamental principles of the merit-based system,” which relies on fair and open recruitment, and uses valid assessment tools for entry-level positions in government.

In the Gingery case, brought under veterans’ employment statutes, a qualified applicant who was passed over for a position in favor of two FCIP hires is arguing that he did not receive his full veterans’ preference rights; if he had, he would have been hired. Supported by NTEU’s amicus brief, he is challenging the decision of the Merit Systems Protection Board that the FCIP is a valid exception to competitive hiring procedures, and that it allows agencies using it to afford less than the full veterans preference hiring rights normally provided.

NTEU is the largest independent federal union, representing 150,000 employees in 31 agencies and departments.