Court Finds Jurisdiction, But Denies Veteran's Preference Claims in Dean v. Department of Labor

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The United States Court of Appeals for the Federal Circuit recently ruled in Dean v. Department of Labor that Mr. David Dean did not have his veterans’ preference rights violated by the Department of Labor when he applied, but was not considered for, a position as a Recent Graduate Wage and Hour Specialist pursuant to the President’s Pathways Program.

All civilian positions in the Executive branch are either in the competitive service, excepted service, senior executive service, or by Presidential appointment with the advice and consent of the Senate. Applicants for employment in the competitive service typically must take an examination administered by the Office of Personnel Management (OPM). Applicants for excepted service positions, however, are not similarly required to take a competitive examination.

In 2010, President Obama signed an Executive Order creating the Pathways Programs, including the Internship Program, the Recent Graduates Program, and the modified Presidential Management Fellows Program. The President’s Order set forth criteria regarding the Recent Graduates Program that restricted eligibility to certain recent graduates, including a criterion that participants in the Recent Graduates Program must have obtained a qualifying degree within the preceding two years, except that certain veterans would be eligible within six years of obtaining a qualifying degree. The President’s Order further delegated the authority to issue regulations implementing the Pathways Programs to OPM. OPM thereafter issued regulations.

Mr. Dean is a preference-eligible veteran with a thirty percent service-connected disability. He applied for a position in the Recent Graduates Program as a Wage and Hour Specialist with the Department of Labor. The position’s vacancy announcement provided that the position was part of the Pathways Program and only open to eligible recent graduates from qualifying educational institutions. The announcement identified job qualifications that did not include a minimum educational requirement, but also provided program eligibility requirements that included a degree or certificate from a qualifying educational institution within the previous two years or previous six years for certain veterans. Mr. Dean was not considered for the Recent Graduate Wage and Hour Specialist position because he had not graduated within the timeframe established under the Pathways Program (i.e., he had graduated more than 6 years prior).

Mr. Dean, having lost at the Merit Systems Protection Board (MSPB), turned to the Federal Circuit which ruled that a statute which authorizes the President to prescribe rules governing the competitive service, including rules providing necessary exceptions from competitive service (the excepted service), is a statute “relating to veterans’ preference” within meaning of the Veterans Employment Opportunities Act (VEOA). Accordingly, the Federal Circuit held that the VEOA confers jurisdiction on the Merit Systems Protection Board to consider potential violations of 5 U.S.C. § 3308, which provides that OPM or an examining agency cannot prescribe a minimum educational requirement for an examination for the competitive service. The exception involves when it decides that the duties, specifically of a scientific, technical, or professional position, cannot be performed by an individual who does not have the prescribed minimum education.

However, the Federal Circuit also ruled that placement of the Recent Graduate Wage and Hour Specialist position into excepted service as part of the Recent Graduates Program was not a violation of law. The Court noted that Congress had not addressed how the statute applied to the excepted service where there was no examination, but OPM’s regulations implementing that statute were permissible, reasonable, and did not conflict with expressed Congressional intent. Hence, while Mr. Dean was permitted to file an action and litigate a potential violation of the VEOA under the Pathways Program, a violation had not occurred in this case as the eligibility requirements he challenged were found permissible.

Dean vs. Dept. of Labor

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About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel and can be reached at [email protected]. To schedule a meeting with one of the firm’s federal employment law attorneys call 202-787-1900. The information in this column is not intended as legal advice.