Filed: Feb. 26, 2015
Latest Update: Mar. 02, 2020
Summary: 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 V
Summary: 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 Ve..
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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.
