United States Federal Circuit

In an action against the Department of Defense (DOD) for violation of petitioner's rights under the Veterans Employment Opportunities Act (VEOA) of 1998 for hiring two non-preference eligible individuals under the Federal Career Intern Program (FCIP) and not hiring petitioner, final decision of the Merit Systems Protection Board (MSPB) in favor of defendant-DOD is reversed where: 1) 5 C.F.R. section 302.401(b) was invalid because it did not give effect to the unambiguously expressed intent of Congress in enacting 5 U.S.C. sections 3320 and 3318; and 2) there was no question that the requirements of section 3318 (as applied to the excepted service via section 3320) were not met in this case.

Appellate Information

• Decided 12/24/2008
• Published 12/24/2008

Judges

• Before NEWMAN, PROST, and MOORE, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Andrew J. Dhuey of Berkeley, CA argued for petitioner., Elaine D. Kaplan, Senior Deputy General Counsel, National Treasury Employees Union, of Washington, DC, argued for amicus curiae.   With her on the brief were Gregory O'Duden, General Counsel, and Timothy B. Hannapel, Assistant Counsel.


• For Appellees:
  
• Hillary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent.   With her on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.   Of counsel was Brian T. Edmunds, Trial Attorney.   Of counsel on the brief were Kerry B. Mctigue, General Counsel, and Steven Abow, Assistant Counsel, Office of Personnel Management, of Washington, DC.