Other Passover Provision Declared Invalid

[jagghagg]

Federal Circuit Court of Appeals Opinion, 24 December 2008

Gingery v. DoD, No. 07-3292

www.cafc.uscourts.gov/opinions/07-3292.pdf


"... Mr. Gingery appeals the MSPB’s final decision on two grounds. He argues that OPM’s passover regulation (5 C.F.R. § 302.401(b)) is invalid because it is inconsistent with the passover procedures of 5 U.S.C. § 3318(b) when applied to the excepted service via 5 U.S.C. § 3320. Mr. Gingery also argues that “the FCIP is unlawful in its entirety” because it violates § 3302(1)’s requirement that exceptions to the competitive service be “necessary” for “conditions of good administration.” DoD responds that 5 C.F.R. § 302.401 is valid and was properly applied by OPM and that Executive Order 13,162 represents the President’s unfettered discretion to place civil service positions in the excepted service. Because we conclude that OPM’s passover regulation is invalid and that Mr. Gingery’s veterans’ preference rights were violated, we need not reach the broader questions of the FCIP’s validity..."

[privateatty]

I am not versed in this area of the law, but Gingery would appear to apply to us ALJ wannabes if

a) We were a 30% vet and applied as such, and

b) We knew we were passed over in favor of a lower-scoring individual and thus could complain.

How the heck are we ever going to know were were (now) illegally passed over (unless OPM follows Gingery a notifies us--which would seem to be an invitation to complain)?

As an aside, couldn't SSA or another agency consider us three times by comparing us with only high scorers in three of our cities and get around Gingery that way?

Please correct me if I'm wrong or if I just don't know the law....but I did a Lexis search on the invalidated Reg and it hasn't been litigated...but wow, its still a big win for the vets.

[zero]

Passover?!! We've only just finished Chanukah!