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Washington, D.C.—The National Treasury Employees Union (NTEU) has asked a federal court to grant it summary judgment in the union’s long-running challenge to the legality of Office of Personnel Management (OPM) regulations implementing the Federal Career Intern Program (FCIP).

Summary judgment effectively would end the FCIP—a result NTEU has been pursuing for some time because the program sharply undercuts the principles at the core of merit-based hiring in the federal sector.

“As it has been misused by federal agencies, the FCIP is far from the program it was intended to be,” said NTEU President Colleen M. Kelley, who just yesterday reviewed for a Senate subcommittee the manner in which the FCIP is used to circumvent the competitive hiring process. She called for an end to the FCIP.

NTEU motion for summary judgment was filed with U.S. District Court for the District of Columbia. It comes in the wake of a previous court ruling last July rejecting OPM jurisdictional objections to NTEU’s suit against the FCIP, originally filed in 2007.

That decision cleared the way for OPM to provide the administrative record in the case—which it had refused to do—and set the stage ultimately for a hearing on the merits of NTEU’s argument that the OPM regulations authorizing the FCIP are contrary to law.

Upon review of the administrative record, NTEU moved for summary judgment, arguing that the record shows OPM failed to make the required findings under federal law that exceptions from the competitive hiring process are permitted only when “necessary” and “justified by conditions of good administration.”

Instead, NTEU said, OPM left it to agencies to designate which positions could be filled through the FCIP. Given that opportunity, President Kelley said, “agencies have run amok, using the authority to fill all sorts of positions and have failed to provide the structured training specified for the ‘internship,’.

The FCIP, which was implemented on an interim basis in 2000 and made a permanent hiring authority by OPM in 2005, was intended to create a limited-use, special hiring authority designed to provide formally-structured, two-year training and development internships.

However, because OPM placed almost no restrictions on the program, agencies have expanded it far beyond anything in its original intent to become in many cases their primary method of hiring.

Through it, agencies can bypass public job postings and impose on new employees what is, in effect, a two-year probationary period, rather than the standard one-year period.

A number of NTEU-represented agencies—among them, the Internal Revenue Service, Customs and Border Protection and the Federal Deposit Insurance Corporation—are using the FCIP for most or all their new hires in a variety of positions.

The program clearly has negative impacts on job-seekers because positions being filled under the FCIP can be narrowly advertised to targeted groups and agencies can more easily avoid honoring veteran’s preference rights. In addition, current employees also are harmed in a number of ways, most significantly because agencies can avoid negotiated rights for in-house candidates seeking promotions or career advancement.

“The FCIP is standard-less exception to competitive hiring procedures,” President Kelley said. “It is subject to broad interpretation and widespread abuse.” She added that the administrative record supplied by OPM in response to NTEU’s legal demands shows that “at no level was there even a perfunctory analysis as to whether an exception to hire for any given position was necessary and warranted for the conditions of good administration,” as the law requires.

There are no findings, rationales or policy considerations to justify “such a dramatic departure from competitive service hiring,” Kelley said. “To the contrary, the final (OPM) regulation simply reiterates the bare outline of the program contained in the original executive order and then authorizes agencies to develop their own programs and except any GS-5, 7, or 9 position from the competitive service.”

As part of its requested remedy, the NTEU motion asks the court to immediately convert all FCIP hires to competitive service positions.

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