Dean v. Dep't of Labor, No. 2015–3131.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtPER CURIAM.
Citation808 F.3d 497
Docket NumberNo. 2015–3131.
Decision Date09 December 2015
Parties David DEAN, Petitioner v. DEPARTMENT OF LABOR, Respondent.

808 F.3d 497

David DEAN, Petitioner
v.
DEPARTMENT OF LABOR, Respondent.

No. 2015–3131.

United States Court of Appeals, Federal Circuit.

Dec. 9, 2015.


808 F.3d 498

David Dean, Lugoff, SC, pro se.

Douglas Glenn Edelschick, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Steven J. Gillingham; James V. Blair, Melanie L. Paul, Office of the Solicitor, United States Department of Labor, Washington, DC; Julie L. Ferguson Queen, Kathie A. Whipple, Robin M. Richardson, Steven E. Abow, Office of the General Counsel, Office of Personnel Management, Washington, DC.

Before CHEN, MAYER, and STOLL, Circuit Judges.

PER CURIAM.

Petitioner David Dean seeks review of a decision by the Merit Systems Protection Board ("Board") rejecting his claim under

808 F.3d 499

the Veterans Employment Opportunities Act of 1998.

BACKGROUND

I.

Most federal civil service employees are employed in either the competitive service or the excepted service. Nat'l Treasury Emps. Union v. Horner, 854 F.2d 490, 492 (D.C.Cir.1988) ; see also 5 U.S.C. §§ 2102(a)(1), 2103(a). Applicants for employment in the competitive service must generally take a "competitive examination" administered by the Office of Personnel Management ("OPM"). Nat'l Treasury Emps. Union, 854 F.2d at 492. The President, however, is authorized to make "necessary exceptions of positions from the competitive service" when warranted by "conditions of good administration." Id. (citing 5 U.S.C. § 3302(1) ). Applicants for excepted service positions are not required to take a competitive examination; instead, more flexible and informal procedures can be used to hire employees into the excepted service. Id.

The Veterans' Preference Act ("VPA") is also an important aspect of competitive service hiring. Under the VPA, agencies must provide advantages to veterans and their families, known as "preference eligibles." 5 U.S.C. § 2108(3) (defining "preference eligible" to include certain veterans and their family members); id. §§ 3309–3318 (describing advantages given to preference eligibles). Under 5 U.S.C. § 3320, these veterans' preference programs also apply to hiring in the excepted service. Specifically, § 3320 provides that the excepted service shall be filled "in the same manner and under the same conditions required for the competitive service by sections 3308 –3318." OPM's regulations provide that when numerical scores are used to evaluate candidates, the agency will grant additional points to preference eligibles. 5 C.F.R. § 302.201(a). If, however, candidates for an excepted service position are evaluated without numerical ratings, the agency can use the veterans' preference as a plus factor. Id. § 302.201(b) ; Patterson v. Dep't of Interior, 424 F.3d 1151, 1158–59 (Fed.Cir.2005). Further, the Veterans Employment Opportunities Act ("VEOA") provides a remedy for a preference-eligible veteran "who alleges that an agency has violated ... [his or her] rights under any statute or regulation relating to veterans' preference." 5 U.S.C. § 3330a(a)(1)(A).

In 2010, President Obama signed Executive Order No. 13,562, creating the "Pathways Programs," including the Internship Program, the Recent Graduates Program, and the modified Presidential Management Fellows Program. Exec. Order No. 13,562, 75 Fed.Reg. 82,585 (Dec. 30, 2010). The President explained:

The Federal Government benefits from a diverse workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives. The existing competitive hiring process for the Federal civil service, however, is structured in a manner that, even at the entry level, favors job applicants who have significant previous work experience. This structure, along with the complexity of the rules governing admission to the career civil service, creates a barrier to recruiting and hiring students and recent graduates. It places the Federal Government at a competitive disadvantage compared to private-sector employers when it comes to hiring qualified applicants for entry-level positions.

Id. The order directed OPM to issue regulations implementing the Pathways Programs. Id. The order further provided that participants in the Recent Graduates Program "must have obtained a qualifying

808 F.3d 500

degree ... within the preceding 2 years," except that certain veterans would be eligible within 6 years of obtaining a qualifying degree. Id. at 82,586.

Pursuant to the Executive Order, OPM promulgated 5 C.F.R. pt. 362 to implement the Pathways Programs. With respect to the Recent Graduates Program, OPM set forth eligibility criteria in 5 C.F.R. § 362.302 explaining that eligibility was limited to certain recent graduates. OPM also explained that "[a]n agency must evaluate candidates using OPM Qualification Standards for the occupation and grade level of the position being filled." 5 C.F.R. § 362.303(d).

II.

Mr. Dean, a preference-eligible veteran, applied for a position as a "Recent Graduate" Wage and Hour Specialist within the Department of Labor. The position's announcement stated that the position "is a part of the Pathways Employment Program," open only to "[e]ligible recent graduates from qualifying educational institutions." R.A. 31. The announcement separately identified job "qualifications"—which did not include a minimum educational requirement—and program "eligibility"—which required a "degree or certificate from a qualifying educational institution within the previous two years," or previous six years for certain veterans. R.A. 33–35. Thirty-four veterans met the eligibility requirements of the position and were referred to the selecting official. Mr. Dean ultimately was not considered for the position because he had not graduated within the timeframe established under the program.

After exhausting his administrative remedies, Mr. Dean filed a VEOA appeal asserting that his veterans' preference rights were violated by his exclusion from consideration for the "Recent Graduate" Wage and Hour Specialist position. An administrative judge denied Mr. Dean's request for corrective action. Mr. Dean filed a petition for review with the Board, arguing that his veterans' preference rights were violated because there was no rational basis for the recent graduate criterion and because the job announcement prescribed a minimum educational requirement. The Board found that Mr. Dean's complaint that his veterans' preference rights were violated implicated two statutes: 5 U.S.C. § 3302(1), authorizing the President to except positions from the competitive service, and 5 U.S.C. § 3308, limiting OPM's ability to include minimum educational requirements for positions in the competitive service that are subject to examination. Mr. Dean also argued that the administrative judge improperly closed the record without warning, failing to consider evidence and arguments he submitted, and that the administrative judge improperly denied him a hearing.

The Board determined that the administrative judge improperly closed the record, and therefore gave consideration to all of Mr. Dean's written submissions. The Board also determined that the administrative judge did not err in denying Mr. Dean a hearing because there were no disputed issues of material fact.

The Board next considered its jurisdiction over Mr. Dean's VEOA complaint. Pursuant to 5 U.S.C. § 3330a(a)(1)(A), redress under the VEOA is limited to violations "under any statute or regulation relating to veterans' preference." Although the Board did not expressly address whether § 3302 is a statute relating to veterans' preference, the Board implicitly concluded that it is such a statute when it considered the merits of Mr. Dean's claim alleging a violation of § 3302. The Board then determined that § 3308 is not a statute relating to veterans' preference, overruling

808 F.3d 501

its prior decision to the contrary in Burroughs v. Dep't of the Army, 115 M.S.P.R. 656, aff'd, 445 Fed.Appx. 347 (Fed.Cir.2011). Nevertheless, the Board considered whether violations of either § 3302(1) or § 3308 had occurred and affirmed the administrative judge's initial denial of Mr. Dean's request for corrective action.

Mr. Dean timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We must affirm a final decision of the Board unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) ; Stout v. Merit Sys. Prot. Bd., 389 F.3d 1233, 1237 (Fed.Cir.2004). We review questions of law, including jurisdictional judgments and statutory interpretation, without deference. Wallace v. Office of Pers. Mgmt., 283 F.3d 1360, 1361 (Fed.Cir.2002) ; Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995).

We review the validity of an agency's...

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1 practice notes
  • Holloway v. Department of Air Force, AT-3330-15-0642-I-1
    • United States
    • Merit Systems Protection Board
    • February 26, 2016
    ...445 Fed.Appx. 347 (Fed. Cir. 2011), and overruled on other grounds by Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 15 (2015), aff'd, 808 F.3d 497 (Fed. Cir. 2015). On remand, the administrative judge should reconsider any new evidence of exhaustion concerning the appellant's VEOA claim ......
1 cases
  • Holloway v. Department of Air Force, AT-3330-15-0642-I-1
    • United States
    • Merit Systems Protection Board
    • February 26, 2016
    ...445 Fed.Appx. 347 (Fed. Cir. 2011), and overruled on other grounds by Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 15 (2015), aff'd, 808 F.3d 497 (Fed. Cir. 2015). On remand, the administrative judge should reconsider any new evidence of exhaustion concerning the appellant's VEOA claim ......

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