       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                    DAVID DEAN,
                      Petitioner,

                           v.

       DEPARTMENT OF THE AIR FORCE,
                 Respondent.
            ______________________

                      2014-3114
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT-3330-13-0327-I-1.
                ______________________

              Decided: November 7, 2014
               ______________________

   DAVID DEAN, of Lugoff, South Carolina, pro se.

    A. BONDURANT ELEY, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
CLAUDIA BURKE, Assistant Director.
                 ______________________
2                                          DEAN   v. AIR FORCE



    Before PROST, Chief Judge, NEWMAN, and TARANTO,
                     Circuit Judges.
PER CURIAM.
    David Dean, a veteran of the U.S. armed forces,
wished to apply for a job as a criminal investigator in the
U.S. Air Force Office of Special Investigations. The Air
Force set up a number of the positions, however, to re-
quire application through a college recruiting program.
Mr. Dean challenged the requirement as violating rules
requiring public announcements for vacancies in the
competitive service, J.A. 12–13; see 5 U.S.C. §§ 2102,
3327, 3330, and as denying him rights to veterans’ prefer-
ences in seeking federal employment, see 5 U.S.C. §
3302(1); Dean v. Office of Pers. Mgmt., 2010 M.S.P.B. 213,
¶¶ 15, 28. Because we agree with the Merit Systems
Protection Board that the criminal-investigator positions
were properly excepted from competitive-service require-
ments, we affirm the Board’s decision dismissing Mr.
Dean’s appeal.
                       BACKGROUND
     Each civil service position in the executive branch is
classified as a “competitive service” position unless it is
(1) “specifically excepted from the competitive service,” (2)
filled through an appointment requiring Senate confirma-
tion, or (3) in the Senior Executive Service. 5 U.S.C.
§ 2102(a)(1). To fill a competitive-service position, the
government uses “open competitive examinations” to
make final appointments, 5 C.F.R § 2.1, and it must
comply with specified requirements for announcing jobs
and selecting applicants, see 5 C.F.R. §§ 330.101–330.106;
Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 492
(D.C. Cir. 1988). The rules are different for “excepted
service” positions: rather than using “open competitive
examinations,” the government may use “more flexible
and informal procedures . . . to recruit and select new
DEAN   v. AIR FORCE                                       3



employees into the excepted service.”       Nat’l Treasury
Emps. Union, 854 F.2d at 492.
    Congress authorized the President to “prescribe rules
governing the competitive service,” including rules provid-
ing for “necessary exceptions of positions from the compet-
itive service” “as nearly as conditions of good
administration warrant.” 5 U.S.C. § 3302. The President
has delegated the classification authority to the Office of
Personnel Management (OPM), 5 C.F.R. §§ 5.1, 6.1, which
has promulgated criteria and procedures for an agency’s
creation of excepted-service positions, id. § 6.2.
    In 2002, the Air Force sought approval from OPM to
except all of its criminal-investigator positions from
competitive-service hiring requirements. 1 OPM approved
the Air Force’s request and published the decision in the
Federal Register. See 67 Fed. Reg. 60,796, 60,799–800
(2002). The excepted-service designation has been re-
newed every year since its adoption. See, e.g., 78 Fed.
Reg. 4,883, 4,885 (2013).
    The Air Force hires a subset of its criminal investiga-
tors—approximately 10 per year—through a program
called PALACE Acquire. The program recruits entry-
level investigators and provides successful applicants
three years of on-the-job training. To be selected for one
of those positions, an applicant must attend one of the Air
Force’s recruiting events, which in 2012 were held at
three college campuses (in Maryland, Virginia, and Tex-
as). Applications are then scored by a panel of Air Force
special agents. Each applicant receives a score based on
certain objective criteria plus, where applicable, veterans-



   1    This case turns on the facial legality of the Air
Force’s hiring practices. The characteristics of the hiring
practices are not in dispute, and the details of Mr. Dean’s
application are not pertinent to his appeal. J.A. 22.
4                                          DEAN   v. AIR FORCE



preference points based on disability status, producing an
interim score that determines whether an applicant
proceeds to the second stage of the hiring process.
    Mr. Dean filed an appeal with the Merit Systems Pro-
tection Board (Board) to challenge the PALACE Acquire
program as violating civil-service competition rules and
the laws governing veterans’ preferences. He asked that
all hiring decisions made under the recruiting program be
vacated and the positions filled anew in accordance with
the competitive-service rules. J.A. 13. The Board denied
Mr. Dean’s appeal, concluding that the positions identi-
fied by Mr. Dean had been properly excepted from the
competitive service according to governing regulations
and therefore were not subject to the rules governing
competitive-service appointments. Dean v. Dep’t of the
Air Force, No. AT-3330-13-0327-I-1, slip op. at 5–6
(M.S.P.B. Jan. 6, 2014). Mr. Dean appeals. We have
jurisdiction over pursuant to 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
     We may set aside the Board’s decision only if it was
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
    According to Mr. Dean, the Air Force recruiting pro-
gram is unlawful in two ways. First, he argues that the
Air Force, by failing to advertise the positions widely on
USAJobs.com, violated regulations pertaining to competi-
tive-service positions. Second, he argues that the hiring
process gave insufficient credit to disabled veterans,
because it did not comply with ranking requirements for
competitive-service positions. Mr. Dean acknowledges
that his arguments turn on whether the positions made
available through the PALACE Acquire program were
DEAN   v. AIR FORCE                                       5



subject to the rules governing competitive-service vacan-
cies. J.A. 22. We agree with the Board that they are not.
    OPM has been delegated the authority to “determine
finally whether a position is in the competitive service” or
not. 5 C.F.R. § 1.2 (emphasis added). Based on that
delegation, the Board concluded that it may review
whether OPM, or an agency acting under a further proper
delegation of authority, had “made a finding that the
position should be excepted from the competitive service
for conditions of good administration.” Dean, No. AT-
3330-13-0327-I-1, slip op. at 5; see Dean, 2010 M.S.P.B.
213, ¶ 27. When no such finding has been made, the
Board may order the offending agency to comply with the
rules governing competitive-service positions. Dean, 2010
M.S.P.B. 213, ¶ 31. But the Board doubted its authority
to override a discretionary classification determination
made by OPM when such a determination had, in fact,
been made. Dean, No. AT-3330-13-0327-I-1, slip op. at 5-
6. Cf. Nat’l Treasury Empls. Union, 854 F.2d at 495–96
(OPM employment classification decisions may be chal-
lenged in U.S. district court under § 706(2)(A) of the
Administrative Procedure Act). We see no error in that
analysis. 2
    We likewise see no error in the Board’s conclusion
that OPM had, in fact, made a classification that encom-
passed the Air Force’s PALACE Acquire positions. Dean,
No. AT-3330-13-0327-I-1, slip op. at 5–6. The Air Force
demonstrated, and Mr. Dean did not dispute, that all
criminal-investigator positions within the Office of Special
Investigations, including those recruited through the
PALACE Acquire program, had been approved by OPM as
excepted from the competitive service. Thus, the Board


   2   Mr. Dean does not argue that the Board had the
authority to review OPM classification decisions and
improperly declined to exercise it.
6                                          DEAN   v. AIR FORCE



did not err in finding that the positions had been excepted
from the competitive service. And it followed that the Air
Force acted lawfully in not widely announcing the
PALACE Acquire positions to the general public—a
requirement that does not apply to positions excepted
from the competitive service. See 5 U.S.C. § 3330; 5
C.F.R. §§ 330.101–330.106; Dean, 2010 M.S.P.B. 213,
¶ 27.
    Mr. Dean also has not shown that the Air Force acted
contrary to any veterans-preference laws or rules. Ac-
cording to the undisputed description of the PALACE
Acquire program, as noted above, the Air Force gives
veterans-preference points to applicants in this program.
In any event, Mr. Dean has not shown that any of the
veterans-preference requirements he cites restricted the
Air Force’s ability to specify the special recruiting qualifi-
cations it adopted in making certain criminal-investigator
slots excepted-service positions in accordance with OPM
standards and procedures.
    In short, because the Board properly found that the
PALACE Acquire positions had been duly classified as
excepted-service positions in accordance with the law, it
did not err in concluding that the Air Force did not violate
laws and regulations governing competitive-service va-
cancies or veterans’ preferences.
                        AFFIRMED
