Burroughs v. Department of the Army ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MILO D. BURROUGHS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
2011-3141
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT3330100892-I-1.
__________________________
Decided: October 18, 2011
__________________________
MILO D. BURROUGHS, of Yelm, Washington, pro se.
VINCENT D. PHILLIPS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
BURROUGHS v. ARMY 2
Before RADER, Chief Judge, PROST and MOORE, Circuit
Judges.
PER CURIAM.
Petitioner Mr. Milo D. Burroughs appeals from the fi-
nal order of the Merit Systems Protection Board (“Board”)
dismissing some of his claims for lack of jurisdiction and
denying others. Burroughs v. Dep’t of the Army, No.
AT3330100892-I-1, slip. op. at 2 (M.S.P.B. Mar. 25, 2011).
For the reasons discussed below, we affirm the Board’s
decision.
BACKGROUND
Mr. Burroughs, an honorably discharged veteran of
the United States Air Force, applied for a position as an
aerospace engineer with the Department of Defense
(“agency”)—one of at least 162 agency positions he has
applied for since 2003. The advertised position required,
among other things, a bachelor’s degree or equivalent
experience with the skills necessary to understand the
theoretical and practical intricacies of the engineering
disciplines as well as the physical and mathematical
science underlying professional engineering. A list of
candidates was forwarded to the selecting official, on
which Mr. Burroughs was listed as the second alternate.
He, however, was not selected for the position.
Mr. Burroughs filed a complaint regarding his non-
selection with the Department of Labor asserting a viola-
tion of his preference rights by the agency’s inclusion of a
minimum education requirement in the job posting. The
Labor Department found his claim meritless.
Thereafter, he filed a complaint with the Board alleg-
ing violation of his preference rights because (1) he was
3 BURROUGHS v. ARMY
improperly passed over, (2) the agency failed to apply his
preference points, and (3) the agency denied him a right
to compete. He also reasserted his claim regarding the
improper inclusion of a minimum educational require-
ment. The administrative judge denied all but the mini-
mum education requirement claim, which was not
addressed in the initial decision.
Mr. Burroughs petitioned for review by the full Board.
The Board dismissed his claims of improper passover,
failure to apply veterans’ preference points, and denial of
his right to compete based on his failure to exhaust ad-
ministrative remedies as required by the Veterans Em-
ployment Opportunities Act of 1998 (“VEOA”). The Board
further denied his alternative argument that the Veter-
ans’ Preference Act of 1944 (“VPA”) grants it jurisdiction
over his claim without regard the jurisdictional require-
ments of the VEOA. Finally, the Board denied his re-
quest for corrective action regarding his arguments that
the agency’s job posting improperly imposed a minimum
education requirement and was improperly posted accord-
ing to merit promotion procedures. This petition for
review followed and we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
We must affirm a Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). We review questions of law and deter-
minations of jurisdiction without deference to the Board.
Carley v. Dep’t of the Army, 413 F.3d 1354, 1356 (Fed. Cir.
2005).
BURROUGHS v. ARMY 4
DISCUSSION
Mr. Burroughs asserts that the Board incorrectly
dismissed his claims of improper passover, denial of
preference points, and denial of the right to compete for
lack of jurisdiction because he failed to exhaust his ad-
ministrative rights before the Labor Department. We
disagree with Mr. Burroughs. In a letter to the Labor
Department, he failed to assert his passover, preference
points, and competition claims in relation to his non-
selection for the engineering position. Rather, he asserted
a single claim regarding the allegedly improper inclusion
of an educational requirement listed with the job descrip-
tion. Because he failed to comply with VEOA procedure
and notify the Labor Department with respect to these
claims, the Board does not have jurisdiction. 5 U.S.C.
§ 3330a(d).
Alternatively, Mr. Burroughs argues that section 14 of
the VPA provides independent jurisdiction over these
claims, irrespective of whether he exhausted his adminis-
trative remedies. As this court has twice explained in
appeals brought by Mr. Burroughs, “[t]he VPA does not
provide an independent source of [Merit Systems Protec-
tion Board] jurisdiction over [his] appeal.” Burroughs v.
Merit Sys. Prot. Bd., No. 2011-3021 (Fed. Cir. June 13,
2011); see also Burroughs v. Merit Sys. Prot. Bd., No.
2010-3180 (Fed. Cir. Apr. 8, 2011). We are not persuaded
by his argument that the Board’s denial of jurisdiction
effected a denial of due process. It is Mr. Burroughs who
failed to fully and completely exercise his process rights.
Next, Mr. Burroughs argues that the agency unlaw-
fully included a minimum education requirement in its
job posting for the aerospace engineer position. His
argument, however, is rebutted by the plain text of the
5 BURROUGHS v. ARMY
controlling statute, 5 U.S.C. § 3308, which explains that
the Office of Personnel Management (“OPM”) may impose
a minimum education requirement when it “decides that
the duties of a scientific, technical, or professional posi-
tion cannot be performed by an individual who does not
have a prescribed minimum education.” The aerospace
engineer position is designated by OPM as one which
requires scientific or technical knowledge. 1 Thus, we
affirm the Board’s determination that the agency properly
included a minimum educational requirement because it
is in accordance with law. Id.
Mr. Burroughs next argues that the agency’s job post-
ing violated his veterans’ preference because it was listed
under the merit promotion procedure, which is used when
an agency intends to fill a position from within the agency
or with a competitive service employee. Because the job
was posted under the merit promotion process, Mr.
Burroughs did not receive the benefit of his veterans’
preference points, which would apply to an application to
the same position listed under the competitive service
process. The Board determined that the agency did not
violate veterans’ preference by issuing the vacancy an-
nouncement under the merit protection procedures.
An agency can choose to fill a vacant position by ei-
ther the competitive service or the merit promotion proc-
esses. 5 C.F.R. § 330.101 (“An appointment officer may
fill a position in the competitive service by any of the
methods authorized in this chapter.”). A preference
eligible veteran is not entitled to veterans’ preference as
1 The aerospace engineer position is listed under
code 0861, which is a code that requires specific scientific
or technical knowledge.
BURROUGHS v. ARMY 6
to selection under the merit promotion process, but re-
ceives “a right to apply and an opportunity to compete for
[the] position.” Joseph v. Fed. Trade Comm’n, 505 F.3d
1380, 1383 (Fed. Cir. 2007). Thus, Mr. Burroughs was
entitled to “the opportunity to compete for vacant posi-
tions” to be filled “under merit promotion procedures.” 5
U.S.C. § 3304(f)(1).
He competed because his application for the aerospace
engineer position—listed under merit promotion proce-
dures—was considered and he was ranked as the second
alternate. The right to compete, however, does not confer
a right of selection. Thus, we perceive no reversible error
in the Board’s conclusion that the agency did not violate
veterans’ preference by listing the aerospace engineer
position under the merit promotion process. See Dean v.
Consumer Prod. Safety Comm’n, 548 F.3d 1370, 1373
(Fed. Cir. 2008).
CONCLUSION
In sum, there exists no reversible error in the Board’s
determination that it lacked jurisdiction over the claims
that Mr. Burroughs failed to raise to the Labor Depart-
ment and his claims regarding inclusion of a minimum
educational requirement and use of the merit promotion
process lacked merit. Accordingly, we affirm.
AFFIRMED