Asatov v. Agency for International Development ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAKHMATULLA ASATOV,
Petitioner,
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT,
Respondent.
______________________
2013-3068
______________________
Petition for review of the Merit Systems Protection
Board in No. PH3330120145-I-1.
______________________
Decided: October 16, 2013
______________________
RAKHMATULLA ADATOV, of Plainville, Connecticut, pro
se.
CAMERON COHICK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
J. GILLINGHAM, Assistant Director.
______________________
2 ASATOV v. AID
Before PROST, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
Rakhmatulla Asatov seeks review of a final decision
of the Merit Systems Protection Board (“Board”) affirming
an initial decision by an Administrative Judge (“AJ”)
denying his request for corrective action under the Veter-
ans Employment Opportunities Act of 1998 (“VEOA”).
Asatov v. Agency for Int’l Dev., PH-3330-12-0145-I-1,
(M.S.P.B. May 14, 2012) (“AJ Op.”); Asatov v. Agency for
Int’l Dev., PH-330-12-0145-I-1 (M.S.P.B. Jan. 2, 2013)
(“Board Op.”). For the reasons set forth below, we affirm.
BACKGROUND
In 2011, Mr. Asatov applied for a position as a Foreign
Service Officer Program Economist with the U.S. Agency
for International Development (“AID”). The announce-
ment stated that the minimum qualifications required
the position were: (1) a graduate level degree (master’s or
doctorate) in economics, agricultural economics, or public
policy, or in a related field equivalent to a graduate eco-
nomics program; and (2) successful completion of one or
more years of graduate-level coursework in economics in
each of the following fields: (a) microeconomic theory or
applied microeconomics; (b) macroeconomic theory; and (c)
statistics, econometrics, or quantitative methods.
Mr. Asatov applied to the position and submitted a re-
port from the Educational Credential Evaluators, Inc.
stating that the degree Mr. Asatov obtained in 1995 in
Russia at the Moscow Institute of Management would be
equivalent to a Bachelor’s degree in Business Administra-
tion with a specialization in Urban Planning, and a
Master’s degree in Business Administration.
The company that maintains AID’s online job applica-
tion system initially gave Mr. Asatov’s application a score
of 94. Because Mr. Asatov is a preference-eligible veter-
ASATOV v. AID 3
an, AID added five points to his score, raising it to 99.
The cutoff score for proceeding to a second round of evalu-
ation was 95, and Mr. Asatov was therefore referred to
subject matter experts, who determined that he was not
one of the best qualified applicants. Mr. Asatov was not
interviewed and was removed from consideration.
On December 13, 2011, Mr. Asatov filed a veterans’
preference complaint with the Department of Labor
(“DOL”). DOL investigated Mr. Asatov’s complaint and
determined that AID did not violate his veterans’ prefer-
ence rights and that his non-selection was based on his
qualifications.
On January 16, 2012, Mr. Asatov filed a VEOA appeal
with the Board alleging that AID violated his veterans’
preference rights. Specifically, as relevant here, Mr.
Asatov asserted violations of 5 U.S.C. §§ 3308 and 3318.
The AJ decided not to hold a hearing because the issues
were purely legal. The AJ determined that Mr. Asatov’s
veterans’ preference rights in applying for the Foreign
Service appointment were governed by 22 U.S.C. §
3941(c), and that AID complied with this section, and
thus complied with the VEOA, by adding five points to his
initial score of 94. See AJ Op. at 5.
Mr. Asatov appealed the AJ’s decision to the full Board.
Mr. Asatov argued that the AJ erred in not addressing his
arguments under 5 U.S.C. §§ 3308 and 3318. The Board
noted that the Foreign Service Act provides a separate
statutory hiring authority for Foreign Service employees,
and that much of title 5 does not apply to them. See
Board Op. at 3 (citing 22 U.S.C. §§ 3941-3952). According
to the Board, Mr. Asatov “received every consideration he
was entitled to receive as a veteran,” and therefore it was
not necessary for the AJ to address whether Title 5 ap-
plied. Id. at 4. The Board also rejected Mr. Asatov’s
argument that the AJ abused her discretion by not con-
ducting a hearing. The Board noted that a VEOA com-
4 ASATOV v. AID
plainant does not have an unconditional right to a hear-
ing, and because there were no genuine issues of material
fact, the Board concluded that the AJ’s decision was
correct as a matter of law. Id. at 5-6.
Mr. Asatov timely sought review of the Board’s final
decision. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
DISCUSSION
We may reverse the Board’s final decision only if we
determine that it is (1) arbitrary, capricious, and abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law; or (3)
unsupported by substantial evidence. 5 U.S.C. § 5503(c);
see also Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537
(Fed. Cir. 1984). We review the Board’s statutory inter-
pretation de novo. Wallace v. OPM, 283 F.3d 1360, 1361
(Fed. Cir. 2002).
Under the VEOA, a preference eligible veteran who
alleges that an agency has violated his or her rights
“under any statute or regulation related to veterans’
preference,” and who has exhausted those rights under
that section before DOL, may file an appeal with the
Board. See 5 U.S.C. § 3330(a)(1). Mr. Asatov argues that
AID violated his veterans’ preference rights: (1) by setting
minimum qualification requirements for the Foreign
Service Officer position in contravention of 5 U.S.C. §
3308 and 5 C.F.R. § 302.202, and rejecting his application
on the basis of his qualifications; and (2) by “passing over”
him and selecting six non-preference eligibles for inter-
view without filing written reasons with the Office of
Personnel Management (OPM), in contravention of 5
U.S.C. § 3318(a). See Appellant’s Informal Brief (App.
Br.) at 9, 12-14.
The VEOA does not generally accord any special
treatment to veterans who are deemed unsuitable to hold
ASATOV v. AID 5
a particular position. See Lazaro v. Dep’t of Veterans
Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (“[T]he
VEOA does not enable veterans to be considered for
positions for which they are not qualified.”). Nonetheless,
Mr. Asatov can establish a VEOA claim if he demon-
strates that AID did not follow applicable veterans’ pref-
erence statutes or regulations when it determined that he
was not one of the best qualified candidates for the For-
eign Service Officer position. See id. at 1321. It is undis-
puted that 22 U.S.C. § 3941(c), which provides that
veteran status “shall be considered an affirmative factor”
in making appointments to the Foreign Service, is appli-
cable here. We agree with the Board that AID complied
with this provision by adding five points to Mr. Asatov’s
examination score. Board Op. at 3.
We also agree with the Board that Mr. Asatov “re-
ceived every consideration he was entitled to receive
under VEOA.” Board Op. at 4. As the AJ noted, the
Foreign Service has its own appointment authority (22
U.S.C. §§ 3941-3952), compensation system (22 U.S.C. §
3961-3974), forum for appealing personnel actions (22
U.S.C. § 4131-4140), and retirement system (22 U.S.C. §
4041-4069c-1), separate from those set forth in Title 5 for
the majority of the civil service. AJ Op. at 2. Although
the Foreign Service is to be administered “to the extent
practicable in conformity with general policies and regu-
lations of the Government,” 22 U.S.C. § 3925, we have
held that particular sections of Title 5 may not apply to
executive agencies where “overriding provisions of law”
exist. See James v. Von Zemensky, 284 F.3d 1310, 1320
(Fed. Cir.), reh’g denied, 301 F.3d 1364 (Fed. Cir. 2002).
As relevant to Mr. Asatov’s case, the Foreign Service Act
directly addresses veterans’ preference and requires only
that veterans’ preference be “an affirmative factor” under
the appointment procedures applicable to the Foreign
Service. 22 U.S.C. § 3391(c). Therefore, the Board is
correct that AID was not required to comply with any
6 ASATOV v. AID
other provisions of Title 5 relating to veterans’ preference,
or with regulations in 5 C.F.R. part 302. See 5 C.F.R.
302.101(a) (providing that veteran preference regulations
in part 302 apply to excepted positions “subject to a
statutory requirement to follow the veteran provisions of
title 5”).
Mr. Asatov also argues that AID violated his veter-
ans’ preference rights by failing to administer a “written
examination” as required by 22 C.F.R. § 11.1. App. Br. at
12. It appears from the record that this argument was
not raised below, and we therefore decline to address it
here. See Simmons v. Dep’t of the Army, 194 F.3d 1331(Fed. Cir. 1999).
Finally, Mr. Asatov argues that the AJ erred in de-
clining to hold a hearing to resolve factual disputes.
Specifically, Mr. Asatov contends that the fact that his
name was placed on the list of eligibles means that he met
the minimum qualifications, and therefore shows that his
qualifications cannot have been the basis for his non-
selection. See App. Br. at 15-16. But even if this issue
was disputed, it is not material. The VEOA does not give
the Board authority to determine whether AID’s decision
was proper; only whether the agency violated applicable
veterans’ preference rights. See 5 U.S.C. § 3330(a)(1)(A).
Given the AJ’s findings that Mr. Asatov received veterans’
preference and was not selected for interview because he
was not one of the best qualified candidates, there was no
need for the AJ to hold a hearing to resolve any alleged
factual disputes regarding AID’s decision not to interview
Mr. Asatov.
CONCLUSION
Because we perceive no legal error in the proceedings
below, we affirm the Board’s final decision that Mr.
Asatov is not entitled to corrective action under the
VEOA.
ASATOV v. AID 7
AFFIRMED
COSTS
Each party shall bear its own costs.