David Dean v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 22

Docket No. AT-3330-13-0235-I-1

David Dean,

Appellant,

v.

Department of Labor,

Agency.

February 26, 2015

David Dean, Lugoff, South Carolina, pro se.

Melanie L. Paul, Atlanta, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has petitioned for review of the initial decision that denied

his request for corrective action in this Veterans Employment Opportunities Act

of 1998 (VEOA) appeal. For the reasons set forth below, we DENY the petition

for review and AFFIRM the initial decision.

BACKGROUND

¶2 The facts of this case are undisputed. The Department of Labor (DOL or

agency) announced a vacancy for a GS-1849-07/09 “Recent Graduate” Wage and

Hour Specialist position. Initial Appeal File (IAF), Tab 8 at 10-20. The

2

announcement indicated that the “appointment is [a part] of the Pathways

Employment Program” and open to “[e]ligible recent graduates from qualifying

educational institutions.” Id. at 10. The appellant, a preference-eligible veteran,

applied for the position. Id. at 21-43. The DOL rated him ineligible because he

did not graduate from a qualifying educational institution within the timeframes

established under the Pathways Recent Graduates Program. Id. at 22;

see 5 C.F.R. § 362.302. 1

¶3 After exhausting his administrative remedies, the appellant filed a VEOA

appeal with the Board and requested a hearing. IAF, Tab 1 at 3-4, 13-14. He

argued that the DOL violated his veterans’ preference rights by excluding him

from consideration for the “Recent Graduate” Wage and Hour Specialist job on

the basis that he did not meet the Pathways Recent Graduates Program criteria.

The administrative judge issued a jurisdictional order informing the appellant of

1

Section 362.302 states that:

(a) A Recent Graduate is an individual who obtained a qualifying

associates, bachelors, master’s, professional, doctorate, vocational or

technical degree or certificate from a qualifying educational institution,

within the previous 2 years or other applicable period provided below.

(b)(1) Except as provided in paragraph (b)(2) of this section, an individual

may apply for a position in the Recent Graduates Program only if the

individual’s application is received not later than 2 years after the date the

individual completed all requirements of an academic course of study

leading to a qualifying associates, bachelor’s, master’s, professional,

doctorate, vocational or technical degree or certificate from a qualifying

educational institution.

(2) A veteran, as defined in 5 U.S.C. § 2108, who, due to a military

service obligation, was precluded from applying to the Recent Graduates

Program during any portion of the 2-year eligibility period described in

paragraph (b)(1) of this section shall have a fu ll 2-year period of

eligibility upon his or her release or discharge from active duty. In no

event, however, may the individual’s eligibility period extend beyond 6

years from the date on which the individual completed the requirements of

an academic course of study.

3

the standard for proving jurisdiction over a VEOA appeal and directing him to

submit evidence and argument on the issue to be received by January 20, 2013.

IAF, Tab 3. The administrative judge notified the appellant that the record would

close on that date unless he established that the Board had jurisdiction over the

appeal, in which case the record would be further developed. Id. at 7.

¶4 On February 1, 2013, the administrative judge issued an initial decision on

the written record finding that the appellant established jurisdiction over the

appeal, but denying the request for corrective action on the merits. IAF, Tab 10,

Initial Decision (ID). The administrative judge did not conduct a hearing because

he found that there was no genuine dispute of material fact and the agency must

prevail as a matter of law. ID at 1. The administrative judge reasoned that the

appellant’s veterans’ preference rights were not violated because he failed to

meet the qualifications for the position, i.e., graduation from a qualifying

educational institution within the timeframes established under 5 C.F.R.

§ 362.302. ID at 4. In reaching his decision, the administrative judge did not

consider the appellant’s January 31, 2013 submission because it was filed after

the deadline set forth in the jurisdictional order. ID at 2 n.1; IAF, Tab 3 at 7,

Tab 9.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He argues that the qualification criteria in the vacancy

announcement violated his veterans’ preference rights because, among other

things, there is no rational basis for the recent graduate criterion. Id. at 6-7. He

also contends that the administrative judge should have conducted a hearing and

considered his January 31, 2013 submission. PFR File, Tab 1 at 4-6; IAF, Tab 9.

The agency has filed a response in opposition, and the appellant has filed a reply

to the agency’s response. PFR File, Tabs 3-4.

¶6 At the Board’s request, the agency provided additional information

pertaining to its administration of the Pathways Recent Graduate Program,

particularly regarding positions in the 1849 Wage and Hour occupational series.

4

PFR File, Tabs 5-6. The Board also requested an advisory opinion from the

Office of Personnel Management (OPM) concerning its regulations governing the

Recent Graduate Program. PFR File, Tab 7; see 5 U.S.C. § 1204(e)(1)(A). OPM,

however, declined the Board’s request. PFR File, Tab 11.

ANALYSIS

The Board will decide this case on the written record.

¶7 Ordinarily, the Board will not consider evidence or argument filed after the

close of the record below absent a showing that it was not previously available

despite the party’s due diligence. Williams v. Department of Veterans

Affairs, 74 M.S.P.R. 472, 474 (1997). However, under the special circumstances

of this case, we find it appropriate to do so.

¶8 The administrative judge’s jurisdictional order explicitly stated that, if the

appellant’s submissions through January 20, 2013, were sufficient to establish

jurisdiction over the appeal, then the record would remain open for further

development on the merits. IAF, Tab 3 at 7. Therefore, because the

administrative judge correctly found that the appellant established jurisdiction

over the appeal, he should have allowed for further development of the record.

ID at 1-3; see Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 11 (2010);

see also Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 8 (2001).

¶9 Because the administrative judge closed the record in this VEOA appeal

without proper warning, we find it appropriate to consider the arguments that the

appellant advanced for the first time on petition for review and in his January 31,

2013 submission. PFR File, Tab 1; IAF, Tab 9; see Jarrard, 113 M.S.P.R. 502,

¶ 14 n.2. We also find that the agency has had a full and fair opportunity to

respond to these arguments, that there is no genuine dispute of material fact, and

that the agency must prevail as a matter of law. We therefore find it appropriate

to issue a final decision at this time on the written record. See Waters-Lindo v.

Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009) (the Board may decide the

5

merits of a VEOA appeal without a hearing where there is no genuine dispute of

material fact and one party must prevail as a matter of law).

The History of the Pathways Recent Graduates Program

¶10 All civilian positions in the executive branch are either in the competitive

service, the excepted service, the senior executive service, or by presidential

appointment with the advice and consent of the Senate. 5 U.S.C. § 2102(a);

Isabella v. Department of State, 102 M.S.P.R. 259, ¶ 12 (2006); 5 C.F.R.

§ 212.101(a). Congress intended that appointment to the civil service through

competitive examination be the norm. Dean v. Department of

Agriculture, 99 M.S.P.R. 533, ¶ 11 (2005). Under 5 U.S.C. § 3302(1), however,

“[t]he President may prescribe rules governing the competitive service” that

“provide, as nearly as conditions of good administration warrant, for—necessary

exceptions of positions from the competitive service.” Citing this authority, the

Pathways Programs were authorized and created by Executive Order (E.O.)

13,562, signed by President Obama on December 27, 2010. 2 This E.O. came 6

weeks after the Board issued its decision in Dean v. Office of Personnel

Management, 115 M.S.P.R. 157 (2010), which invalidated the Federal Career

Internship Program (FCIP), itself created in 2000, by an E.O. signed by President

Clinton. We believe it is fair to characterize the Pathways Programs as

successors to FCIP, especially to the extent that they were designed in good faith

to address the inherent problems with FCIP that underlay the Board’s decision in

the 2010 Dean decision.

¶11 E.O. 13,562 succinctly sets forth its purpose and the public policy goals it

advances. It provides for appropriate merit-based procedures for recruitment,

assessment, placement, and ongoing career development for participants in the

2

E.O. No. 13,562 established the Internship Program and the Recent Graduates

Program, which, along with the Presidential Management Fellows Program, are

collectively known as the Pathways Programs.

6

programs. In addition, as we discuss below, it applies veterans’ preference.

Following this executive order, OPM published in the Federal Register 3 a more

detailed discussion of the purpose of the Pathways Programs and its structure,

parameters, and procedures.

¶12 Subsequently, pursuant to E.O. No. 13,562, §§ 2, 7, OPM promulgated

regulations governing the Recent Graduates Program. 5 C.F.R. § 213.3401;

5 C.F.R. Part 362, Subparts A, C; 5 C.F.R. Parts 213, 302, 315, 330, 334, 531,

536, 537, 550, 575, and 890; see 77 Fed. Reg. 28,194 (May 11, 2012). Under

OPM’s regulations, an individual may apply for a Recent Graduates position only

if his application is received not later than 2 years after the date that he

completed all requirements of an academic course of study leading to a qualifying

associate’s, bachelor’s, master’s, professional, doctorate, vocational, or technical

degree or certificate from a qualifying educational institution. 5 C.F.R.

§ 362.302(b)(1). The duration of the Recent Graduates appointment in the

excepted service is a trial period. 5 C.F.R. § 362.303(f). After successfully

completing 1 year under the Program, the incumbent may be noncompetitively

converted to a competitive service position. 5 C.F.R. § 362.305.

5 U.S.C. § 3308 is not a statute relating to veterans’ preference.

¶13 Before analyzing the dispositive issues in this case, we wish to clarify an

error in our case law related to this subject. The appellant contended that the

Pathways Program violated his veterans’ preference rights because the vacancy

announcement prescribed a minimum educational requirement. IAF, Tab 9; PFR,

Tabs 1, 4. Although the appellant did not specifically cite to 5 U.S.C. § 3308, we

find that his arguments implicate this statute, which states that:

The Office of Personnel Management or other examining agency

may not prescribe a minimum educational requirement for an

examination for the competitive service except when the Office

3

See 77 Fed. Reg. 28194-01 (May 11, 2012).

7

decides that the duties of a scientific, technical, or professional

position cannot be performed by an individual who does not have a

prescribed minimum education. The Office shall make the reasons

for its decision under this section a part of its public records.

¶14 Previously, the Board has found that 5 U.S.C. § 3308 is a statute relating to

veterans’ preference. Burroughs v. Department of the Army, 115 M.S.P.R. 656,

¶ 12, aff’d, 445 F. App’x 347 (Fed. Cir. 2011). 4 As support for its determination

that section 3308 relates to veterans’ preference, the Board in Burroughs made a

conclusory finding that section 3308 “ultimately derives from section 5 of the

Veterans’ Preference Act of 1944.” 5 Id. However, upon further review of this

matter, we find that a mere general similarity between provisions of section 3308

and the Veterans’ Preference Act, by itself, is insufficient to conclude that this

section relates to veterans’ preference. Section 3308 was enacted in 1966, and

there is no evidence, including legislative history, that Congress considered it in

context related to the Veterans’ Preference Act, enacted 22 years earlier, or any

other issue related to veterans’ employment.

¶15 As additional support for its determination that section 3308 relates to

veterans’ preference, the Board in Burroughs also cited to 49 U.S.C.

§ 40122(g)(2)(B), a subpart of the Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century (Ford Act), a law which governs employees of

the Federal Aviation Administration (FAA). See Pub. L. No. 106-181, 114 Stat.

61 (2000). Under section 40122(g)(2), Congress granted the FAA the authority to

establish a personnel system that is not subject to the provisions of Title 5, with

4

Although neither party cited to Burroughs in their pleadings, we find it necessary to

analyze th is issue in reference to our pertinent case law, including Burroughs. The U.S.

Court of Appeals for the Federal Circu it (Federal Circuit) in Burroughs agreed with the

Board’s determination that the Department of the Army did not unlawfully include a

minimum education requirement in its job posting for an Aerospace Engineer position,

but it d id not expressly reach the issue in d ispute here, see infra; namely, whether

section 3808 is a law relating to veterans’ preference.

5

See Pub. L. No. 78-359, 59 Stat. 387 (codified at 5 U.S.C. §§ 2108, 3309-3320).

8

certain exceptions. See Ivery v. Department of Transportation, 102 M.S.P.R.

356, ¶ 12 (2006). It is not evident how Title 49 could have applied in the

Burroughs case, given that the responding agency there was the Department of

the Army. Similarly, the responding agency here is the DOL, not the FAA, and

so Title 49 is not implicated. In fact, the Board clearly stated in Belhumeur v.

Department of Transportation, 104 M.S.P.R. 408, ¶¶ 7-9 (2007), that VEOA does

not apply to the FAA. Consequently, we find that the Board’s reliance

on 49 U.S.C. § 40122(g)(2)(B) in Burroughs and subsequent precedent to hold

that section 3308 is a statute that relates to veterans’ preference was incorrect,

and so we OVERRULE our determinations in Burroughs and its progeny on that

issue. 6

Even if 5 U.S.C. § 3308 were a statute relating to veterans’ preference, the

Pathways Recent Graduates Program comports with that statute.

¶16 As mentioned earlier, the vacancy at issue in this appeal was announced

under the Recent Graduates Program. IAF, Tab 8 at 10. Broadly speaking, then,

the question here is whether the educational requirement of the Recent Graduates

Program, as applied in this case, is consistent with veterans’ preference rights.

We find that it is.

¶17 As set forth above, under 5 U.S.C. § 3308, minimum educational

requirements are generally prohibited in federal employment. An examining

agency or OPM may not prescribe a minimum educational requirement for the

competitive service 7 except when OPM decides that the duties of a scientific,

technical, or professional position cannot be performed by an individual who

does not have a prescribed minimum education. If OPM decides that a minimum

6

See, e.g., Asatov v. Agency for I nternational Development, 119 M.S.P.R. 692, ¶ 10

(2013).

7

While this restriction, on its face, applies only to competitive service appointments, it

also applies to appointments in the excepted service pursuant to 5 U.S.C. § 3320. See

Gingery v. Department of Defense, 550 F.3d 1347, 1351-54 (Fed. Cir. 2008).

9

educational requirement is necessary, it is required to make the reasons for its

decision a part of its public records. 8 5 U.S.C. § 3308.

¶18 The term “professional” as used in section 3308 does not appear to have

ever been defined, either in statute, by OPM regulations, or through Board case

law. This is not surprising, given the commonly understood meaning of the term

is that of an occupation requiring either a certain level of education or training, or

a public license, which generally requires some level of preparatory study. But

when put in the context of professional development by way of on-the-job

training or an apprenticeship, the term “professional” naturally expands. In

career development programs, a “career ladder” is created to improve and

enhance management-quality skills among employees. No individual position

stands alone. A GS-5 entry-level position standing alone is completely different

than that exact same GS-5 entry-level position that comprises the first rung of a

career development ladder. The former likely does not require a college degree,

while the latter does. We find no legal authority that prevents this construct of

the term “professional” in the context of section 3308.

¶19 Here, the position title on the DOL vacancy announcement is “Recent

Graduate” Wage and Hour Specialist. While this position by itself may share the

same duties and responsibilities with the Wage and Hour Specialist position, the

two positions in fact serve different functions within the broader personnel

management scheme. While the latter is a discrete job, the former is the first step

in a formal career development and advancement program, which the President

and OPM believe requires a minimum education requirement.

¶20 As set forth above, the President’s E.O. and OPM’s subsequent regulations

implementing the Recent Graduates Program fully justify its educational

8

This provision, enacted by Pub. L. No. 89-554 in 1966, before higher education was as

prevalent as it is today, was intended in part to prevent the misuse of an educational

requirement to discrim inate against women and minorities in federal hiring.

10

requirements, and no party is in a better position to explain and defend them than

OPM. In fact, OPM has made clear that there are historic, legal, and policy

issues which support and clarify the operation of the Recent Graduates Program.

As explained below, the general prohibition of educational requirements for

federal employment set forth in 5 U.S.C. § 3308 should not impede the operation

of this program.

¶21 The Board must review whether OPM “examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action including a ‘rational

connection between the facts found and the choice made.’” National Treasury

Employees Union v. Horner, 854 F.2d 490, 498-99 (D.C. Cir. 1988) (citing Motor

Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance

Co., 463 U.S. 29, 43 (1983), and quoting Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168, (1962)). The U.S. Court of Appeals for the District of

Columbia Circuit has found that OPM’s use of 5 U.S.C. § 3302 to authorize an

exception to competitive examining must be supported by data showing the

necessity for such an exception and evidence that OPM engaged in an analysis of

that data. Horner, 854 F.2d at 498-99; Dean, 115 M.S.P.R. 157, ¶ 19.

¶22 Based on our review, we find that OPM published the criteria it used to

provide a rational basis for this program in its public records, including its

pertinent regulations, its Federal Register notices, and other records contained on

OPM’s website, which show that a rational basis for section 3308 has been met,

both under the law and in the spirit of that law. 9 For instance, the goal of the

Recent Graduates Program and of Pathways in general is to achieve the

recruitment and selection of “sufficient” numbers of recent graduates. E.O.

No. 13,562, § 1; 5 C.F.R. §§ 6.1, 213.3401. There are two related reasons behind

9

The Board may take official notice of certain facts of common knowledge or matters

that can be easily verified without requiring such evidence to be introduced to establish

those facts. See 5 C.F.R. § 1201.64.

11

this goal: to achieve a workforce more representative of all segments of

society, 5 C.F.R. § 213.3401; see 5 U.S.C. § 2301(b)(2), and to benefit from the

infusion of the “enthusiasm, talents, and unique perspectives” that students and

recent graduates bring to the workplace, E.O. 13,562, § 1. Similarly, the program

answers a need to foster “a diverse workforce that includes students and recent

graduates” because current competitive hiring practices provide significant

barriers to these individuals. E.O. No. 13,562. There also has been a finding that

the Pathways exception is necessary to achieve this goal. Specifically,

E.O. 13,562, § 1 explains that the Pathways exception is necessary as a condition

of good administration to promote employment opportunities for students and

recent graduates in the federal workforce.

¶23 In addition, other regulations supply ample justification for the program’s

existence, including 5 C.F.R. § 362.301, which details the administration of the

program, and states that the program “provides an entry-level developmental

experience designed to lead to a civil service career in the Federal Government”

for recent graduates, meaning that the person must apply within 2 years of having

completed all academic course work. Section 362.302(b)(2) also reflects that

veterans’ rights were being taken into account, given that the regulation states

that a “veteran, as defined in 5 U.S.C. § 2108, who due to military service

obligation, was precluded from applying” to the program “shall have a full 2-year

period of eligibility upon his or her release or discharge from active duty.”

Moreover, 5 C.F.R. § 362.303(b)(3)(v), which deals with filling positions within

the program, states that the positions “must have progressively more responsible

duties that provide career advancement opportunities” to permit participants to

ascend a career ladder.

¶24 Furthermore, OPM, in the Federal Register notice for the Pathways

Program, stated that the purpose of the program is to train and prepare

participants for careers in the government by providing them with a 2-year

“try-out” period, culminating in conversion to the competitive service if all goes

12

well. 77 Fed. Reg. 28,194-01 (May 11, 2012). OPM indicated therein that it was

seeking to provide a “meaningful training and developmental experience, as well

as the potential for a permanent job” for “[h]igh potential applicants who are

interested in public service.” Id. at 28,195. OPM added that, based on its

experience with the civil service, “training and career development are among the

attributes most often cited by recent graduates as desirable in employment

opportunities.” Id. OPM stated that, in keeping with the nature of the program, it

was “designed to leverage the cognitive abilities of students and recent

graduates,” and to provide them “with training and mentoring opportunities.” Id.

at 28,201. OPM emphasized that the appointments in these programs “must have

career advancement opportunities, i.e., they must be career ladder positions.” Id.

at 28,211. OPM opined that, at the same time, the program would allow agencies

a period of time to evaluate “the potential of the Recent Graduate for a career in

government.” Id. at 28,201. OPM observed that it was “asking agencies to make

an investment in these individuals through mentorship, training, and

developmental activities,” so that the agencies could “be able to reap the benefits

of that investment by retaining those who successfully complete their Programs.”

Id. at 28,200.

¶25 OPM has furnished information on its website that explains in great detail

the reasons behind the formation of the program. As an example, OPM observes

that “[t]he Federal Government values the contributions made by students and

recent graduates of all ages and backgrounds. We have been placed at a

competitive disadvantage, though, compared to other sectors in recruiting and

hiring students and recent graduates.” See Hiring Authorities—Students and

Recent Graduates, http://www.opm.gov/policy-data-oversight/hiring-authorities/

students-recent-graduates/. Also, in its transition guidance for the program, titled

“Pathways for Students & Recent Graduates to Federal Careers,” OPM points out

that the program “targets individuals who have graduated recently from

qualifying educational institution or programs” so that they “will be placed in a

13

dynamic, career development program.” See Pathways—For Students and Recent

Graduates to Federal Careers—Transition and Implementation

Guidance, http://www.chcoc.gov/Documents/Attachments/Document146.pdf.

The guidance explains that the program “enables individuals who lack experience

to explore Federal civil service employment at the beginning of their careers,”

and “engages them at the onset of their work lives, before their career paths are

fully established.” Id. OPM also specifically notes in this guidance that it has

taken into consideration the rights of veterans, given that it states that veterans

are able to circumvent the 2-year application deadline “due to their military

service obligation.” Id. Importantly, the guidance further highlights that:

Veterans’ preference applies to selection for positions in the

Pathways Programs. Selections must be made in accordance with the

requirement of 5 CFR part 302, veterans’ preference laws, and OPM

guidance issued as a Memorandum for Chief Human Capital Officers

dated February 9, 2009, on Procedures of Compensably-Disabled

Preference Eligibles in the Excepted Service. This includes, but

is not limited to, ranked and unranked referral lists.

Id.

¶26 Notwithstanding the above, there is the matter of whether the Recent

Graduates Program, in effect, excepts individuals from competitive examining

procedures rather than “positions” as appears to be contemplated in 5 U.S.C.

§ 3302(1). As relevant here, within the past 3 years, the DOL has appointed

1849-series Wage and Hour Specialists under both competitive and excepted

appointing authorities. We recognize that this fact is not inconsistent with

OPM’s regulations, which by their own terms do not restrict Recent Graduates

positions to those that are impracticable to fill through the competitive process.

Cf. Dean, 115 M.S.P.R. 157, ¶¶ 23-25. And as discussed above, we do not

question that the position of “Recent Graduate” Wage and Hour Specialist (as it

is titled in the DOL announcement) is a different position from Wage and Hour

Specialist. In any event, it could be argued that the intent of the Pathways

Program is to allow agencies to fill positions that would normally be in the

14

competitive service with individuals who would not likely be within reach on a

certificate of eligibles generated under the competitive examining process.

See 5 C.F.R. § 213.3401. If this is the case, then OPM would have to address

whether 5 U.S.C. § 3302(1) permits an exception of this type. We find that it

does.

¶27 The Pathways Programs are an important recruiting and hiring tool into the

federal workforce for applicants of all ages, backgrounds and experiences;

especially veterans returning from service who strive to better their lives and that

of their families by successfully pursuing higher education, and then want to

continue serving their country in the federal civil service. As a result, we cannot

agree with the appellant’s claim that the Pathways Programs’ minimum

educational eligibility requirement inherently violated his and other veterans’

preference rights. The record reflects that no fewer than 34 veterans met the

minimum eligibility requirements of being a recent graduate who were on the

certificate of eligibles for the vacancy announcement. These individuals were

referred to the selecting official. See IAF, Tab 1 at 5A; see also PFR, Tab 3 at 7.

If the minimum educational requirement did not prohibit these 34 individuals

from being considered, then it does not follow that the requirement violated

anyone’s veterans’ preference rights.

¶28 To further bolster our view about the legal propriety of the Pathways

Programs, we note that, recently, in an unpublished decision, the Federal Circuit

considered another challenge by Mr. Dean to an OPM-approved excepted service

program in which he alleged that the program violated civil service competition

rules and veterans’ preference. See Dean v. Department of the Air Force,

No. 2014-3114, 2014 WL 5786656 (Fed. Cir. Nov. 7, 2014) (unpublished). The

program at issue in that case, the 2002 PALACE Acquire program, allows an

agency to recruit and hire applicants for Criminal Investigator positions at

various college campus recruiting events. As with the Pathways Programs,

15

merit-based qualifications and veterans’ preference are key elements of the

PALACE Acquire Programs’ applicant consideration process.

¶29 The court in that Dean case affirmed the Board’s earlier order, which noted

that OPM had been delegated the authority to determine if a position is in the

competitive service or not. Dean, 2014 WL 5786656, at *2; see 5 C.F.R. § 1.2.

The court held that, when OPM makes a proper finding that a position should be

excepted from the competitive service for conditions of good administration, the

Board lacks authority to override OPM’s discretionary classification. The court

concluded that, because OPM had made such a finding, as it can do likewise with

the Pathways Programs, the Board properly found that the PALACE Acquire

positions were legally classified as being in the excepted service and that the

agency in that case did not violate competitive service laws or veterans’

preference.

¶30 We thus find that the agency here properly imposed a minimum educational

requirement for the GS-1849-07/09 “Recent Graduate” Wage and Hour Specialist

position, and we conclude that the appellant failed to show that the agency acted

contrary to any veterans’ preference laws or rules, or violated his veterans’

preference rights, when it considered this minimum educational requirement as

the basis for excluding him from consideration. 10

¶31 Finally, the appellant argues that the administrative judge’s decision is in

contravention of the U.S. Supreme Court’s decision in Personnel Administrator

of Massachusetts v. Feeney, 442 U.S. 256 (1979), and the Federal Circuit’s

decision in Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir.

2012). IAF, Tab 9; PFR File, Tabs 1, 4. We disagree. To the extent the

appellant’s argument is based on a constitutional challenge to VEOA on the

ground that it impermissibly gives preference to certain veterans with degrees

10

The appellant does not appear to dispute the fact that he did not meet the minimum

educational requirement for the vacancy.

16

over other veteran applicants, his claim fails. Courts generally have rejected

constitutional challenges to laws granting veterans’ preference in government

hiring; such laws have generally been upheld so long as they require that the

veteran possess the minimum qualifications necessary to perform the position’s

duties. See, e.g., Feeney, 442 U.S. at 277; White v. Gates, 253 F.2d 868, 869

(D.C. Cir. 1958); Fredrick v. United States, 507 F.2d 1264, 1266-69 (Ct. Cl.

1974). Also, in Lazaro, the Federal Circuit ruled that VEOA does not confer any

special treatment to a veteran who is deemed unsuitable to hold a particular

position, as occurred here. See Lazaro, 666 F.3d at 1319 (“[T]he VEOA does not

enable veterans to be considered for positions for which they are not qualified.”).

¶32 Accordingly, we find no error in the administrative judge’s decision to

deny the appellant’s request for corrective action.

ORDER

¶33 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:

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

17

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

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.