The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 8
Docket No. PH-3330-13-0049-R-1
Ross Vassallo,
Appellant,
v.
Department of Defense,
Agency,
and
Office of Personnel Management,
Petitioner.
January 15, 2015
Ross Vassallo, Easton, Connecticut, pro se.
John K. Moroney, Esquire, Boston, Massachusetts, for the agency
Lida V. Kianoury, Esquire, Philadelphia, Pennsylvania, for the agency.
Becky C. Ronayne, Esquire, Washington, D.C., for the petitioner.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 Pursuant to 5 U.S.C. § 7703(d), the Director of the Office of Personnel
Management (OPM) has petitioned for reconsideration of the Board’s decision
that ordered the agency to provide the appellant corrective action in this appeal
2
under the Veterans Employment Opportunities Act (VEOA). Vassallo v.
Department of Defense, 121 M.S.P.R. 70 (2014). For the reasons discussed
below, we GRANT the Director’s petition, REVERSE our previous decision, and
DENY the appellant’s request for corrective action.
BACKGROUND
¶2 This appeal concerns a vacancy announcement issued by the Defense
Contract Management Agency (DCMA), which is a subcomponent of the
Department of Defense (DOD), for a position in DCMA. Vassallo, 121 M.S.P.R.
70, ¶ 2. The vacancy announcement specified that only applicants from particular
DOD subcomponents would be considered for the position: current DCMA
employees and DOD employees with the Acquisition, Technology, and Logistics
Workforce who are outside the military components. Id. The appellant was a
current DCMA employee; however his application was rejected due to his failure
to submit a Standard Form (SF) 50 (Notification of Personnel Action), which the
announcement requested in order to verify an individual’s eligibility for the
position. Id. After first seeking corrective action from the Department of Labor,
the appellant filed a VEOA claim under the provisions of 5 U.S.C. § 3304(f)(1),
Vassallo, 121 M.S.P.R. 70, ¶ 3, which provides as follows:
Preference eligibles or veterans who have been separated from the
armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will
accept applications from individuals outside its own workforce under
merit promotion procedures.
¶3 The dispositive issue in this case is determining the scope of the meaning
of the word “agency” as used in the statute for purposes of determining whether
DCMA was required to give the appellant an “opportunity to compete.” If the
word “agency” in the statute means DCMA in this case, then the appellant had the
right to compete, regardless of whether he submitted an SF-50 verifying his
current DCMA employment, because applications were accepted from persons
3
outside DCMA. If the word “agency” in the statute means DOD in this case, the
appellant would not have had a right to compete because applications were not
accepted from outside DOD’s workforce; indeed, applications were not accepted
from the entirety of DOD’s workforce.
¶4 In finding that “agency” in this matter meant DCMA rather than DOD, the
Board noted OPM’s guidance in the VetGuide, which indicated that DOD, not its
DCMA subcomponent, was the relevant agency. Vassallo, 121 M.S.P.R. 70, ¶ 7.
The Board found that, while guidance in the VetGuide is entitled to “some
weight,” it is not entitled to the deference accorded to regulations. Id., ¶ 8.
Furthermore, the Board cited to its decisions in Washburn v. Department of the
Air Force, 119 M.S.P.R. 265 (2013), and Willingham v. Department of the
Navy, 118 M.S.P.R. 21 (2012), in determining that the pertinent agency was
DCMA, Vassallo, 121 M.S.P.R. 70, ¶¶ 9-11.
¶5 The Board noted that, in Washburn, it had rejected OPM’s interpretation of
the meaning of the word “agency.” Id., ¶ 9. Furthermore, it noted that, while not
directly on point, its decision in Willingham was instructive on the question of
defining “agency” for purposes of a VEOA claim. Id., ¶ 10. The issue in
Willingham was whether the Marine Corps Community Services (MCCS), a
nonappropriated fund instrumentality, was an “agency” within the meaning
of 5 U.S.C. § 3330a(a)(1)(A) for purposes of Board jurisdiction.
Willingham, 118 M.S.P.R. 21, ¶ 9. Noting that nothing in the legislative history
of VEOA shed light on the meaning of “agency,” the Board in Willingham looked
to other sources for guidance in interpreting the meaning of “agency,” including
rules of statutory construction. Id., ¶¶ 10-18. Relying primarily on the Act’s
remedial purpose to establish rights and benefits for veterans, the Board in
Willingham ultimately concluded that the MCCS should be viewed as the agency
for purposes of the VEOA provision at 5 U.S.C. § 3330a. Id., ¶¶ 15-18. Thus,
we noted in our prior decision in this matter that, while Willingham does not
stand for the proposition that all subcomponents of DOD are agencies for
4
purposes of VEOA, it does reflect the Board’s determination in VEOA appeals to
interpret “agency” in a manner that best effectuates the underlying purposes of
the Act. 1 Vassallo, 121 M.S.P.R. 70, ¶ 10.
¶6 OPM’s argument that the Board’s decision is wrong as a matter of law
proceeds as follows: (1) sections 101-105 of Title 5, U.S. Code, constitute a
comprehensive definitional scheme as to what entities constitute various types of
agencies; (2) the term “Executive agency” in section 105 encompasses executive
departments (including DOD), independent establishments, and military
departments, but not subcomponents of any of those entities 2; (3) these
definitions apply to subsection 3304(f); (4) the term “agency” in subsection
3304(f) unambiguously refers to “Executive agency” as defined in 5 U.S.C.
§ 105, and this definition must be applied in this case; and (5) even if the term
“agency” in subsection 3304(f) is ambiguous, the Board must defer to OPM’s
regulation at 5 C.F.R. § 315.611, which specifies that the definition in 5 U.S.C.
§ 105 applies to claims under 5 U.S.C. § 3304(f). Reconsideration File, Tab 5.
ANALYSIS
¶7 We do not agree with OPM’s contention that the term “agency” in
subsection 3304(f) unambiguously refers to “Executive agency” as defined
1
While the same statutory ambiguity in Willingham exists in this case, as explained
below, the ambiguity in the present matter can be resolved through the application of
OPM regulation 5 C.F.R. § 315.611. There was no such similar controlling regulation
at issue in Willingham; accordingly, our decision in this case is not incongruous with
Willingham.
2
OPM is correct that the definition of “Executive agency” does not include
subcomponents of executive departments, but OPM is incorrect in stating that military
departments are executive agencies. Executive agencies under section 105 means an
executive department, a government corporation, and an independent establishment.
While “Executive department” does include DOD, “military departments” are separately
defined as encompassing the Departments of the Army, Navy, and Air Force. 5 U.S.C.
§ 102.
5
in 5 U.S.C. § 105. The unmodified term “agency” is not defined in 5 U.S.C.
§§ 101-105; those sections define “Executive departments,” “military
departments,” “Government corporation,” “independent establishment,” and
“Executive agency.” Nevertheless, we agree with OPM’s contention that any
ambiguity is resolved by its regulation at 5 C.F.R. § 315.611.
¶8 When the language of a statute is ambiguous or Congress has left a gap to
be filled, the interpretation of the agency entrusted with implementing the statute
must be upheld so long as it is a permissible construction of the statute. Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984).
When there is an express delegation of rulemaking authority to fill gaps in the
statutory scheme, the agency’s “legislative regulation” will be given controlling
weight unless it is arbitrary, capricious, or manifestly contrary to the statute. Id.
at 843-44. The statute that spells out the substantive entitlement of preference
eligibles and veterans to have an opportunity to compete for vacant positions
specifies that “[OPM] shall prescribe regulations necessary for the administration
of this subsection.” 5 U.S.C. § 3304(f)(5). OPM has prescribed such regulations
in 5 C.F.R. §§ 335.106 and 315.611. Section 335.106, titled “Special selection
procedures for certain veterans under merit promotion,” provides as follows:
Preference eligibles or veterans who have been separated under
honorable conditions from the armed forces after completing (as
determined by the agency) 3 or more years of continuous active
military service may compete for vacancies under merit promotion
when an agency accepts applications from individuals outside its
own workforce. Those veterans selected will be given career or
career conditional appointments under § 315.611 of this chapter.
Section 315.611, titled “Appointment of certain veterans who have competed
under agency merit promotion announcements,” provides the following definition
at subsection (b): “‘Agency’ in this context means an executive agency as
defined in 5 U.S.C. 105.”
¶9 There can be no doubt that interpreting the word “agency” in 5 U.S.C.
§ 3304(f)(1) to mean “Executive agency” as defined in 5 U.S.C. § 105 is a
6
permissible construction of the statute, and we must therefore give OPM’s
regulation controlling weight. Given the above, the agency was not required to
give the appellant an “opportunity to compete” because “the agency making the
announcement”— DOD—did not accept applications from individuals outside its
own workforce under merit promotion procedures. It restricted applications to
individuals within its own workforce. Of course, the appellant was in DOD’s
workforce in this case. Whether the agency erred in not accepting the SF-50,
however, is not a matter for the Board to review under 5 U.S.C. § 3304(f).
¶10 Accordingly, we reverse our previous decision and deny the appellant’s
request for corrective action. 3
ORDER
¶11 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
3
In Washburn, 119 M.S.P.R. 265, ¶ 7, the Board relied on a different OPM regulation,
5 C.F.R. § 330.101(a), which defines “agencies” for the purpose of “Filling Vacancies
in the Competitive Service” as including military departments. The definition at
5 C.F.R. § 315.611 for “agency” is narrower, as it relies on 5 U.S.C. § 105. DOD is an
executive department under 5 U.S.C. § 101, and is therefore an executive agency under
5 U.S.C. § 105, which includes, among other things, an executive department. By
contrast, the Department of the Air Force is a “military department” as defined in
5 U.S.C. § 102, which is not included in the definition of “Executive agency” under
section 105. Because the instant matter does not involve a military department, we
need not resolve this apparent inconsistency in the regulations at this time.
7
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
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Merit Systems Protection Board appellants before the court. The Merit Systems
8
Protection Board neither endorses the services provided by any attorney nor
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FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.