Dean v. Department of Labor , 808 F.3d 497 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
DAVID DEAN,
Petitioner
v.
DEPARTMENT OF LABOR,
Respondent
______________________
2015-3131
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3330-13-0235-I-1.
______________________
Decided: December 9, 2015
______________________
DAVID DEAN, Lugoff, SC, pro se.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed 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.
______________________
2 DEAN v. LABOR
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 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” adminis-
tered by the Office of Personnel Management (“OPM”).
Nat’l Treasury Emps. Union, 854 F.2d at 492. The Presi-
dent, however, is authorized to make “necessary excep-
tions of positions from the competitive service” when
warranted by “conditions of good administration.” Id.(citing 5 U.S.C. § 3302(1)). Applicants for excepted ser-
vice positions are not required to take a competitive
examination; instead, more flexible and informal proce-
dures can be used to hire employees into the excepted
service. Id.The Veterans’ Preference Act (“VPA”) is also an im-
portant 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 pro-
grams also apply to hiring in the excepted service. Specif-
ically, § 3320 provides that the excepted service shall be
DEAN v. LABOR 3
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 Veter-
ans 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 grad-
uates, who infuse the workplace with their enthu-
siasm, 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 ser-
vice, creates a barrier to recruiting and hiring
students and recent graduates. It places the Fed-
eral Government at a competitive disadvantage
compared to private-sector employers when it
comes to hiring qualified applicants for entry-level
positions.
4 DEAN v. LABOR
Id. The order directed OPM to issue regulations imple-
menting the Pathways Programs. Id. The order further
provided that participants in the Recent Graduates
Program “must have obtained a qualifying degree . . .
within the preceding 2 years,” except that certain veter-
ans would be eligible within 6 years of obtaining a quali-
fying 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 Special-
ist within the Department of Labor. The position’s an-
nouncement stated that the position “is a part of the
Pathways Employment Program,” open only to “[e]ligible
recent graduates from qualifying educational institu-
tions.” 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 veter-
DEAN v. LABOR 5
ans’ 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 administra-
tive 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 consid-
eration 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 ex-
pressly 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 its prior decision to the
6 DEAN v. LABOR
contrary in Burroughs v. Dep’t of the Army, 115 M.S.P.R.
656, aff’d, 445 F. App’x 347 (Fed. Cir. 2011). Neverthe-
less, the Board considered whether violations of either
§ 3302(1) or § 3308 had occurred and affirmed the admin-
istrative 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 de-
cision 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 judg-
ments 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 interpretation of
a statute under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Under a
Chevron analysis, we first ask “whether Congress has
directly spoken to the precise question at issue.” Chevron,
467 U.S. at 842. If so, we “must give effect to the unam-
biguously expressed intent of Congress.” Id. at 843. If
not, we ask “whether the agency’s answer is based on a
permissible construction of the statute.” Id. “[A] court
may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the
administrator of an agency.” Id. at 844.
DEAN v. LABOR 7
As an initial matter, we must satisfy ourselves as to
whether the Board possessed jurisdiction over Mr. Dean’s
complaint. As previously noted, the Board’s jurisdiction
over VEOA complaints is provided by 5 U.S.C. § 3330a
and is limited to alleged violations of any statute or
regulation “relating to veterans’ preference.” Because Mr.
Dean’s complaint implicated §§ 3302(1) and 3308 of Title
5, we must consider whether these statutes relate to
veterans’ preference. Notably, the government argues
that they do not.
I.
5 U.S.C. § 3302(1) relates to veterans’ preference
We hold that § 3302(1) is a statute “relating to veter-
ans’ preference” and thus the VEOA confers jurisdiction
to consider claims under that section.
Section 3302(1) provides that “[t]he President may
prescribe rules governing the competitive service. The
rules shall provide, as nearly as conditions of good admin-
istration warrant, for necessary exceptions of positions
from the competitive service.” The Board previously held
that § 3302(1) is a statute relating to veterans’ preference
within the meaning of § 3330a. Dean v. Office of Pers.
Mgmt., 115 M.S.P.R. 157 (2010). Because “relating to” is
not defined by any statute or regulation, the Board gave
the phrase its common meaning, i.e., “stands in some
relation to,” “has bearing on,” “concerns,” or “has a con-
nection with.” Id. at 165. The Board ultimately deter-
mined that “section 3302(1) is a statute relating to
veterans’ preference because veterans’ preference is a
central feature of the system for examining candidates for
entry into the competitive service; the creation of excep-
tions from the competitive service necessarily implicates
veterans’ preference rights.” The Board further ex-
plained:
8 DEAN v. LABOR
Veterans’ preference in hiring has its force and ef-
fect under the two methods for assessing candi-
dates for the competitive service . . . . By
establishing competitive-service hiring as the
norm, section 3302(1) is intrinsically connected to
veterans’ preference rights in that it ensures that
such rights are not circumvented or ignored.
Id. at 166, 168.
We recognize that veterans’ preferences apply to both
the competitive service and the excepted service by opera-
tion of § 3320. However, the government never disputes
that moving positions from the competitive service to the
excepted service necessarily implicates the strength of the
impact of veterans’ preferences on hiring decisions.
Instead, the government argues that § 3302(1) is not a
statute relating to veterans’ preference. The government
first notes that the text of § 3302(1) does not refer to
veterans or veterans’ preferences and argues that it
therefore is not a statute relating to veterans’ preference.
We are not persuaded that a statute must recite the term
“veteran” to be a statute relating to veterans’ preference.
Rather, we are persuaded by the Board’s reasoning in
Dean, 115 M.S.P.R. at 166, 168.
The government next argues that the context and
structure of the VEOA bolster its position, noting that the
VEOA defines the term “veterans’ preference require-
ment” and “expressly identifie[s] a list of the statutes and
types of regulations that qualify as a ‘veterans’ preference
requirement’ for purposes of the VEOA.” Appellee’s
Br. 14; see VEOA § 6, 112 Stat. 3182, 3187–88 (codified at
5 U.S.C. § 2302(e)(1)). Because § 3302(1) is not included
in that list of “veterans’ preference requirements,” the
government argues that it is not a statute “relating to
veterans’ preference.” This argument is not persuasive.
The phrase “relating to veterans’ preference” in
§ 3330a is broader in scope on its face than a “veterans’
DEAN v. LABOR 9
preference requirement” as defined in § 2302(e)(1). Noth-
ing in the text of § 3330a or the VEOA suggests that a
“statute . . . relating to veterans’ preference” is limited to
a “veterans’ preference requirement” as defined in
§ 2302(e)(1). To the contrary, § 2302(e)(1) specifically
defines “veterans’ preference requirement” for the purpose
of § 2302 only. 5 U.S.C. § 2302(e)(1) (“For the purpose of
this section, the term ‘veterans’ preference requirement’
means any of the following provisions of law . . . .”).
Congress used broader language in § 3330a (“relating to
veterans’ preference”) to delimit the scope of complaints
that could be brought by preference-eligible veterans
under the VEOA.
While we agree that statutes “relating to veterans’
preference” may include the statutes enumerated in
§ 2302(e)(1), we do not find it appropriate to restrict the
scope of statutes “relating to veterans’ preference” under
§ 3330a to only the “veterans’ preference requirements”
enumerated in § 2302(e)(1). See Sosa v. Alvarez–Machain,
542 U.S. 692, 711 n.9 (2004) (recognizing “the usual rule
that when the legislature uses certain language in one
part of the statute and different language in another, the
court assumes different meanings were intended” (inter-
nal quotation marks omitted)); Res-Care, Inc. v. United
States, 735 F.3d 1384, 1389 (Fed. Cir. 2013) (“A cardinal
doctrine of statutory interpretation is the presumption
that Congress’s ‘use of different terms within related
statutes generally implies that different meanings were
intended.’” (quoting 2A Norman Singer, Statutes and
Statutory Construction § 46.06 (7th ed. 2007))). Congress
could have listed the statutes “relating to veterans’ pref-
erence” for the purpose of § 3330a—just as it listed the
“veterans’ preference requirements” for the purpose of
§ 2302—but it did not do so. The government’s attempt to
limit the scope of § 3330a to the “veterans’ preference
requirements” of § 2302 is inconsistent with broader
language used by Congress in § 3330a.
10 DEAN v. LABOR
For the reasons articulated above, we agree with the
Board’s holding in Dean, 115 M.S.P.R. at 168, that
§ 3302(1) is a statute relating to veterans’ preference for
the purpose of jurisdiction under § 3330a.
5 U.S.C. § 3308 relates to veterans’ preference
The Board held, and the government argues, that the
Board lacked jurisdiction under the VEOA to consider a
violation of § 3308. As explained below, we disagree and
hold that the VEOA confers jurisdiction on the Board to
consider violations of § 3308 because it is a statute “relat-
ing to veterans’ preference.”
Section 3308 states:
The Office of Personnel Management or other ex-
amining agency may not prescribe a minimum
educational requirement for an examination for
the competitive service except when the Office de-
cides that the duties of a scientific, technical, or
professional position cannot be performed by an
individual who does not have a prescribed mini-
mum education. The Office shall make the rea-
sons for its decision under this section a part of its
public records.
The Board held that § 3308 is not a statute relating to
veterans’ preference for the purpose of § 3330a, overruling
its prior decision in Burroughs.
In Burroughs, the Board held that § 3308 is a statute
relating to veterans’ preference, explaining that § 3308
derives from § 5 of the VPA. 115 M.S.P.R. at 661; see also
VPA § 5, 58 Stat. 387, 388–89. Section 5 of the VPA
provided that “[n]o minimum educational requirement
will be prescribed in any civil-service examination except
for such scientific, technical, or professional positions the
duties of which the Civil Service Commission decides
cannot be performed by a person who does not have such
education.” VPA § 5, 58 Stat. 387, 388–89 (codified at 5
DEAN v. LABOR 11
U.S.C. § 854 (1946)). The Board in Burroughs also cited
49 U.S.C. § 40122(g)(2)(B) for additional support that
§ 3308 is a statute relating to veterans’ preference. Id.
Section 40122(g) lists provisions of Title 5 that apply to
the Federal Aviation Administration’s (“FAA”) personnel
management system, including “sections 3308–3320,
relating to veterans’ preference.” 49 U.S.C. § 40122(g).
We affirmed the Board’s holdings in Burroughs. 445
F. App’x 347, 350 (Fed. Cir. 2011).
The Board in this case, however, reversed its holding
in Burroughs, concluding that § 3308 is not a statute
relating to veterans’ preference. The Board acknowledged
the similarity between § 3308 and § 5 of the VPA, but
reasoned that “a mere general similarity between provi-
sions of section 3308 and the Veterans’ Preference Act, by
itself, is insufficient to conclude that this section relates to
veterans’ preference.” 122 M.S.P.R. 276, 282 (2015). The
Board also discounted 49 U.S.C. § 40122(g)—the FAA
statute that expressly states that “sections 3308–3320”
“relat[e] to veterans’ preference”—because the VEOA does
not apply to the FAA.
The government similarly argues that § 3308 is not a
statute relating to veterans’ preference because the text of
the statute does not specifically refer to veterans or veter-
ans’ preference, and because § 2302(e)(1) does not list
§ 3308 as a “veterans’ preference requirement.” As dis-
cussed above with respect to § 3302, we are not persuaded
by these arguments.
We hold that § 3308 is a statute relating to veterans’
preference and reverse the Board’s holding to the contra-
ry. Section 3308 has its roots in the VPA. While the
Board characterizes the relationship between § 3308 and
§ 5 of the VPA as “a mere general similarity,” 122
M.S.P.R. at 282, the provisions are almost identical. The
fact that the language of § 3308 is nearly identical to a
provision within the VPA is strong evidence that Congress
12 DEAN v. LABOR
understood § 3308 as relating to veterans’ preference.
Moreover, Congress explicitly stated that § 3308 relates to
veterans’ preference. 49 U.S.C. § 40122(g). We see no
reason to ignore Congress’s clear statement that § 3308
“relat[es] to veterans’ preference” just because the VEOA
does not apply to the FAA.
II.
Now that we have satisfied ourselves as to the Board’s
jurisdiction over Mr. Dean’s complaint, we next consider
Mr. Dean’s assertion that the Board improperly closed the
record and failed to consider his written submissions.
Following Mr. Dean’s petition for review, the Board held
that the administrative judge had improperly closed the
record without warning and considered all of Mr. Dean’s
written submissions. We therefore find this complaint to
be moot.
Mr. Dean next argues that he should have been
granted an oral hearing before the Board. We review the
Board’s determination that no hearing was required for
an abuse of discretion. 5 U.S.C. § 7703(c). Section
3330a(d)(1) authorizes the Board to prescribe procedures
governing appeals to the Board under the VEOA. The
Board permits decisions to be made on the merits of a
VEOA appeal without a hearing when there is no dispute
of material fact and one party must prevail as a matter of
law. See Waters-Lindo v. Dep’t of Def., 112 M.S.P.R. 1, ¶ 5
(2009). The Board did not abuse its discretion in conclud-
ing that this case presents no disputes of material fact
and that, as such, Mr. Dean was not entitled to a hearing.
III.
Turning to the merits of Mr. Dean’s appeal, we con-
sider whether placement of the “Recent Graduate” Wage
and Hour Specialist position into the excepted service as
part of the Recent Graduates Program violated § 3302(1).
Mr. Dean appears to argue that the Recent Graduates
DEAN v. LABOR 13
Program is invalid to the extent it excludes certain veter-
ans who are not recent graduates from applying to posi-
tions within the program. We disagree.
Under § 3302(1), the President may make “as nearly
as conditions of good administration warrant, for neces-
sary exceptions of positions from the competitive service.”
Pursuant to this authority, President Obama created the
Pathways Programs, including the Recent Graduates
Program. Exec. Order No. 13,562, 75 Fed. Reg. 82,585.
Section 7 of the Executive Order amended 5 C.F.R.
§ 6.1(a) to provide:
OPM may except positions from the competitive
service when it determines that . . . recruitment
from among students attending qualifying educa-
tional institutions or individuals who have recent-
ly completed qualifying educational programs can
better be achieved by devising additional means
for recruiting and assessing candidates that di-
verge from the processes generally applicable to
the competitive service.
Id. at 82,587. Section 7 also amended 5 C.F.R. § 6.2 to
create Schedule D for the excepted service, which in-
cludes:
Positions . . . for which the competitive service re-
quirements make impracticable the adequate re-
cruitment of sufficient numbers of . . . individuals
who have recently completed qualifying educa-
tional programs. These positions . . . are tempo-
rarily placed in the excepted service to enable
more effective recruitment from all segments of
society by using means of recruiting and assessing
candidates that diverge from the rules generally
applicable to the competitive service.
Id.14 DEAN v. LABOR
In creating the Pathways Programs, the President
stated that “conditions of good administration (specifical-
ly, the need to promote employment opportunities for
students and recent graduates in the Federal workforce)
make necessary an exception to the competitive hiring
rules for certain positions in the Federal civil service,”
citing the merit system principle set out in 5 U.S.C.
§ 2301(b)(1) for the Federal Government “to achieve a
work force from all segments of society.” Id. at 82,585.
The President explained the benefits the Federal Gov-
ernment derives from a diverse workforce that includes
recent graduates, as well as the barriers to hiring these
same individuals. Id.Moreover, beginning in August of 2009, OPM con-
ducted a review of the Federal Government’s ability to
recruit and hire students and recent graduates, soliciting
input from agencies, academic organizations, and the
public. Excepted Service, Career and Career-Conditional
Employment; and Pathways Programs, 76 Fed. Reg.
47,495, 47,496 (proposed Aug. 5, 2011). OPM drew sever-
al conclusions from this review. OPM found barriers to
hiring students and recent graduates, observing that
these individuals lack the experience needed to compete
in the competitive hiring system. Id. at 47,497. OPM also
concluded:
By exposing students and recent graduates to jobs
in the Federal civil service at the beginning of
their careers, we will engage them at the outset of
their work lives, before their career paths are fully
established, inform them about the wide variety of
interesting opportunities available in the Federal
Government, and break through commonly held
stereotypes about “government work.”
Id. This review informed the President’s decision to issue
Executive Order No. 13,562. Id.DEAN v. LABOR 15
The President delegated to OPM the authority to is-
sue regulations implementing the Pathways Programs.
Exec. Order No. 13,562, 75 Fed. Reg. at 82,585. OPM
issued 5 C.F.R. § 213.102, defining “positions” that may
be excepted under § 3302(1) to include “[t]hose that are
intended to be removed temporarily from the competitive
service to allow for targeted recruiting and hiring from
among a particular class of persons.” 5 C.F.R.
§ 213.102(c)(2). In drafting this regulation, OPM noted:
This clarification reflects the President’s (and sev-
eral of his predecessors’) interpretation of 5 U.S.C.
§ 3302(1) and will permit OPM . . . to continue its
practice of allowing agencies to fill positions that
would normally be in the competitive service
through excepted service appointments in order to
allow them to recruit and hire from among classes
of individuals that are disadvantaged by competi-
tive examining.
Excepted Service, Career and Career-Conditional Em-
ployment; and Pathways Programs, 76 Fed. Reg. at
47,498.
In light of the President’s and OPM’s thorough dis-
cussion of the barriers to hiring recent graduates into
positions in the competitive service, the noted benefits
recent graduates provide in the workforce, and the merit
system principle in 5 U.S.C. § 2301(b)(1) for the Federal
Government “to achieve a work force from all segments of
society,” we conclude that the President acted within the
authority Congress granted him in § 3302(1) to create the
Recent Graduates Program and except positions from the
competitive service to fulfill the goals of the program. We
see no conflict between § 3302 and 5 C.F.R. § 213.102,
OPM’s regulation permitting temporary exception of
positions that would normally be in the competitive
service to allow for targeting of a particular class of per-
sons, in this case recent graduates. As the “Recent Grad-
16 DEAN v. LABOR
uate” Wage and Hour Specialist position was excepted
from the competitive service pursuant to OPM’s regula-
tions implementing the Recent Graduates Program, we
also conclude that this position was properly excepted
from the competitive service pursuant to § 3302(1).
IV.
We next consider whether placement of the “Recent
Graduate” Wage and Hour Specialist position into the
excepted service as part of the Recent Graduates Program
violated § 3308. Section 3308 restricts the use of mini-
mum educational requirements for an examination for the
competitive service. This restriction also applies to the
excepted service through § 3320, which provides that
positions in the excepted service shall be filled “in the
same manner and under the same conditions required for
the competitive service by sections 3308–3318.” Congress
delegated the responsibility for implementing § 3320 to
OPM. See 5 U.S.C. § 1302(c). Accordingly, OPM has
issued regulations setting forth procedures for applying
veterans’ preference rights to the excepted service. See 5
C.F.R. pt. 302. In particular, OPM issued 5 C.F.R.
§ 302.202, which provides:
An agency shall not include a minimum educa-
tional requirement in qualification standards ex-
cept for a scientific, technical, or professional
position the duties of which the agency decides
cannot be performed by a person who does not
have a prescribed minimum education.
(emphasis added).
We have considered how veterans’ preference provi-
sions apply to the excepted service through § 3320 in
three prior cases. In doing so, we have construed § 3320
as requiring application of veterans’ preference proce-
dures in excepted service hiring to the extent that it is
administratively feasible to do so. See Jarrard v. Dep’t of
DEAN v. LABOR 17
Justice, 669 F.3d 1320 (Fed. Cir. 2012); Gingery v. Dep’t of
Def., 550 F.3d 1347 (Fed. Cir. 2008); Patterson, 424 F.3d
1151.
In Patterson, we considered application of 5 U.S.C.
§ 3309 to the excepted service via § 3320. 424 F.3d 1151.
Section 3309 entitles a preference-eligible veteran “who
receives a passing grade in an examination to additional
points above his earned rating.” A preference-eligible
veteran alleged that his veterans’ preference rights under
§ 3309 were violated by not adding additional points to
his rating. Id. at 1154. The attorney position at issue,
however, was in the excepted service, and not subject to
examination. Id. at 1157–58. We concluded that “Con-
gress has not spoken on the issue of how to apply the
principles of veterans’ preference to positions within the
excepted service that are not subject to examination,” and
that OPM’s regulations were therefore entitled to defer-
ence under Chevron. Id. at 1158–59. OPM’s regulation
required hiring agencies to “follow the principle of veter-
ans’ preference as far as administratively feasible” for
attorney positions in the excepted service. 5 C.F.R.
§ 302.101(c). Because the attorney position was not
subject to examination or numerical scores and ranking,
the agency instead considered veteran status as a positive
factor in reviewing applications. Patterson, 424 F.3d at
1159. We concluded that 5 C.F.R. § 302.101(c) and the
positive factor test were reasonable interpretations of how
§§ 3309 and 3320 apply to attorney positions within the
excepted service. Id. at 1159–60.
In Gingery, we considered application of 5 U.S.C.
§ 3318 to the excepted service via § 3320. 550 F.3d 1347.
Section 3318 requires that an appointing authority obtain
OPM’s permission to pass over a preference eligible on a
certificate, and notify the preference eligible of the pro-
posed pass over, the reasons for the pass over, and his
right to respond when the preference eligible has a com-
pensable service-connected disability of 30% or more. The
18 DEAN v. LABOR
preference-eligible veteran in Gingery had a compensable
service-connected disability of 30% and sought an auditor
position in the excepted service as part of the Federal
Career Intern Program (“FCIP”). Id. at 1350. A category
rating system was used to fill the auditor position, and
applicants were selected from certificates. Id. In passing
over Mr. Gingery, the agency followed 5 C.F.R.
§ 302.401(b), which applied to the excepted service and
only required the agency to record its reasons for passing
over a preference-eligible veteran and furnish a copy to
the veteran if requested. Id. The preference-eligible
veteran therefore alleged that the pass-over procedures of
§ 3318 were not followed when he was not selected for an
auditor position. Id. We agreed with the veteran and
concluded that, unlike Patterson, there was nothing to
preclude application of § 3318 to the excepted service
because § 3318 “applies to selection from certificates,
which are used in both the competitive and excepted
services.” Id. at 1353. We therefore held 5 C.F.R.
§ 302.401(b) invalid because it provided less protection
than Congress guaranteed certain veterans in § 3318. Id.
In Jarrard, we again considered application of § 3318
to the excepted service through § 3320. 669 F.3d 1320. A
preference-eligible veteran applied for attorney positions
in the excepted service and alleged that the agencies did
not follow the pass-over provisions of § 3318, instead just
considering his veteran status as a “positive factor.” Id.
at 1321. We first determined that rating or other exami-
nation systems were barred for attorney positions. Id. at
1325. We concluded that the pass-over provisions of
§ 3318 were inconsistent with the bar on attorney ratings
because § 3318 “requires the submission of a certificate
that ranks applicants” and held that agencies were ex-
empt from the procedures of § 3318 for attorney positions.
Id. at 1325–26.
With this background, we turn to how the restriction
in § 3308 on minimum educational requirements for
DEAN v. LABOR 19
examinations applies to hiring in the excepted service,
which does not use examinations. We recognize that,
under § 3320, § 3308’s prohibition of educational require-
ments for an examination for the competitive service
applies to the excepted service “in the same manner and
under the same conditions required for the competitive
service.” Congress has not, however, addressed how
§ 3308 applies to the excepted service when there is no
examination. Thus, Congress left a gap in the statute and
OPM’s regulations to fill this gap are entitled to deference
under Chevron. As such, we must consider whether
OPM’s regulations are based on a permissible construc-
tion of §§ 3308 and 3320.
Consistent with § 3308, OPM’s regulations governing
employment in the excepted service prohibit an agency
from including “a minimum educational requirement in
qualification standards, except for a scientific, technical,
or professional position the duties of which the agency
decides cannot be performed by a person who does not
have a prescribed minimum education.” 5 C.F.R.
§ 302.202 (emphasis added). This regulation applies to
making an appointment to a specific position within the
excepted service. Id. Notably, OPM’s regulations do not
prohibit a minimum educational requirement as a pro-
gram eligibility condition.
The educational requirement at issue in this case is
not a qualification standard. It relates to eligibility for a
specific program—the Recent Graduates Program. In-
deed, OPM explained the distinction between “qualifica-
tion standards” and “eligibility” in its regulations
implementing the Recent Graduates Program. First,
OPM issued a regulation entitled “Eligibility,” explaining
that eligibility is limited to “individual[s] 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 [in
20 DEAN v. LABOR
subsection (b)].” 5 C.F.R. § 362.302(a). OPM also issued a
regulation explaining the qualification standards an
agency must apply when evaluating candidates for posi-
tions in the Recent Graduates Program: “Qualifications.
An agency must evaluate candidates using OPM Qualifi-
cation Standards for the occupation and the grade level of
the position being filled.” Id. § 362.303(d). Thus, because
the “Recent Graduate” Wage and Hour Specialist position
was placed in the excepted service pursuant to the author-
ity Congress granted to the President in § 3302, the
eligibility criteria of 5 C.F.R. § 362.302 and the qualifica-
tion standard of 5 C.F.R. § 362.303(d) apply.
Here, we conclude that OPM’s regulations implement-
ing §§ 3308 and 3320 are permissible and reasonable. For
excepted service positions not subject to examinations,
OPM’s regulations restrict the use of minimum educa-
tional requirements in qualification standards for posi-
tions. 5 C.F.R. § 302.202. Under the Recent Graduates
Program, OPM’s implementing regulations instruct
agencies to follow OPM Qualification Standards for the
occupation and grade level of each position while restrict-
ing only the eligibility for the program to recent gradu-
ates. We find no conflict between OPM’s regulations and
Congress’s intent expressed in §§ 3308 and 3320.
Mr. Dean appears to argue that the inclusion of any
minimum educational requirement, including in the
Recent Graduates Program eligibility criteria, for the
“Recent Graduate” Wage and Hour Specialist position is a
violation of §§ 3308 and 3320. While Mr. Dean’s position
may represent a permissible interpretation of these
statutory provisions, Congress has not mandated such a
result and we cannot substitute our judgment for OPM’s
reasonable regulations implementing these statutes. The
agency’s “interpretation governs in the absence of unam-
biguous statutory language to the contrary or unreasona-
ble resolution of language that is ambiguous.” United
States v. Eurodif S.A., 555 U.S. 305, 316 (2009).
DEAN v. LABOR 21
CONCLUSION
For the foregoing reasons, we hold that the Board had
jurisdiction to consider violations of §§ 3302(1) and 3308
pursuant to § 3330a of the VEOA because §§ 3302(1) and
3308 are statutes relating to veterans’ preference. We
affirm the Board’s determination that Mr. Dean’s veter-
ans’ preference rights under §§ 3302(1) and 3308 were not
violated.
AFFIRMED
COSTS
No costs.