Sunday, January 25, 2015

an agencyhas discretion to cancel a vacancy announcement.See Scharein v. Dep't of Army, 91 M.S.P.R. 329 (2002).


OPM denied the Army's request to pass over Arthur A. Scharein, a preference eligible who was ranked first on the certificate of eligibles, in favor of a non-preference eligible, who was ranked second on the certificate of eligibles. Rather than select Mr. Scharein, the Army cancelled the vacancy announcement. Mr. Scharein argued that the Army violated his rights under the VEOA when it cancelled the announcement instead of selecting him. The Board held that:

nothing in the statute nor OPM's regulations requires the agency to make a selection from the certificate and fill the vacancy. The agency could and did cancel the vacancy announcement. The agency's actions in this regard do not violate the appellant's rights under veterans' preference laws. The VEOA does not guarantee a preference eligible a position but only an opportunity to compete with the other candidates on the certificate of eligibles

The Navy is not required to hire a preference eligible veteran, if, as was the case here, it does not believe that the candidate is qualified or possesses the necessary experience. The Navy's decision not to hire Mr. Abell and to cancel the vacancy announcement was based on a good faith reason.  

ABELL v. DEPARTMENT OF NAVY, 

343 F.3d 1378 (Fed. Cir. 2003)

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