Lawsuit May Have Killed the Federal Career Internship Program

An important decision by a key administrative agency that the Federal Career Intern Program (FCIP) violates a statute relating to veterans’ preferences illustrates one of the fatal flaws in this program, the leader of the nation’s largest independent union of federal employees said.

President Colleen M. Kelley of the National Treasury Employees Union (NTEU) has been leading the fight to curb widespread agency misuse of the FCIP and eliminate the program, which circumvents traditional civil service merit hiring principles. “I welcome this highly significant decision by the Merit Systems Protection Board (MSPB), which ratifies NTEU’s longstanding position regarding the illegality of the FCIP,” said Kelley. NTEU filed a friend-of-the-court brief with the MSPB. NTEU also has a pending suit, which is a more broadly based challenge to the FCIP. That suit challenges the program as applied to all employees, not just veterans, and is awaiting a ruling in federal district court. NTEU is seeking the prospective elimination of the FCIP along with the conversion of all FCIP hires to the competitive service without loss of pay or benefits.

The cases at issue in the MSPB decision involve two disabled veterans, one of whom was seeking a job with the Department of Veterans Affairs. The Board said it identified two specific legal flaws in the FCIP. The first flaw is that the program improperly permits agencies to classify a position as being in the excepted service—rather than in the competitive service—after a vacancy announcement is issued, and even after applications are received. The second, the MSPB said, is that the positions can be placed in the excepted service without a showing, as required by statute, that such a decision is “necessary” for conditions of “good administration.”

In one case, a veteran alleged he was unable to apply for a position because he was not aware of vacancies; openings to be filled under the FCIP are not subject to the same public notice requirements as are competitive service jobs. In the other, a veteran applied for one of nine VA vacancies under an announcement limited to eligible veterans—but the agency filled all nine positions using the FCIP.

The FCIP was designed to provide two-year structured training and development internships; instead, a number of agencies have come to use it for all new hires. Often, agencies use it to undercut the competitive hiring process in ways that limit promotion opportunities for current employees.

The MSPB decision comes at a time when the Office of Personnel Management, acting in response to a presidential directive earlier this year, is reviewing the FCIP and making recommendations to the administration about the future of the program.