                         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.
