                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 8

                            Docket No. PH-3330-13-0049-R-1

                                     Ross Vassallo,
                                       Appellant,
                                            v.
                                Department of Defense,
                                         Agency,
                                           and
                          Office of Personnel Management,
                                       Petitioner.
                                     January 15, 2015

           Ross Vassallo, Easton, Connecticut, pro se.

           John K. Moroney, Esquire, Boston, Massachusetts, for the agency

           Lida V. Kianoury, Esquire, Philadelphia, Pennsylvania, for the agency.

           Becky C. Ronayne, Esquire, Washington, D.C., for the petitioner.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         Pursuant to 5 U.S.C. § 7703(d), the Director of the Office of Personnel
     Management (OPM) has petitioned for reconsideration of the Board’s decision
     that ordered the agency to provide the appellant corrective action in this appeal
                                                                                    2

     under the Veterans Employment Opportunities Act (VEOA).              Vassallo v.
     Department of Defense, 121 M.S.P.R. 70 (2014).        For the reasons discussed
     below, we GRANT the Director’s petition, REVERSE our previous decision, and
     DENY the appellant’s request for corrective action.

                                     BACKGROUND
¶2         This appeal concerns a vacancy announcement issued by the Defense
     Contract Management Agency (DCMA), which is a subcomponent of the
     Department of Defense (DOD), for a position in DCMA. Vassallo, 121 M.S.P.R.
     70, ¶ 2. The vacancy announcement specified that only applicants from particular
     DOD subcomponents would be considered for the position:          current DCMA
     employees and DOD employees with the Acquisition, Technology, and Logistics
     Workforce who are outside the military components. Id. The appellant was a
     current DCMA employee; however his application was rejected due to his failure
     to submit a Standard Form (SF) 50 (Notification of Personnel Action), which the
     announcement requested in order to verify an individual’s eligibility for the
     position. Id. After first seeking corrective action from the Department of Labor,
     the appellant filed a VEOA claim under the provisions of 5 U.S.C. § 3304(f)(1),
     Vassallo, 121 M.S.P.R. 70, ¶ 3, which provides as follows:
           Preference eligibles or veterans who have been separated from the
           armed forces under honorable conditions after 3 years or more of
           active service may not be denied the opportunity to compete for
           vacant positions for which the agency making the announcement will
           accept applications from individuals outside its own workforce under
           merit promotion procedures.
¶3         The dispositive issue in this case is determining the scope of the meaning
     of the word “agency” as used in the statute for purposes of determining whether
     DCMA was required to give the appellant an “opportunity to compete.” If the
     word “agency” in the statute means DCMA in this case, then the appellant had the
     right to compete, regardless of whether he submitted an SF-50 verifying his
     current DCMA employment, because applications were accepted from persons
                                                                                     3

     outside DCMA. If the word “agency” in the statute means DOD in this case, the
     appellant would not have had a right to compete because applications were not
     accepted from outside DOD’s workforce; indeed, applications were not accepted
     from the entirety of DOD’s workforce.
¶4         In finding that “agency” in this matter meant DCMA rather than DOD, the
     Board noted OPM’s guidance in the VetGuide, which indicated that DOD, not its
     DCMA subcomponent, was the relevant agency. Vassallo, 121 M.S.P.R. 70, ¶ 7.
     The Board found that, while guidance in the VetGuide is entitled to “some
     weight,” it is not entitled to the deference accorded to regulations.    Id., ¶ 8.
     Furthermore, the Board cited to its decisions in Washburn v. Department of the
     Air Force, 119 M.S.P.R. 265 (2013), and Willingham v. Department of the
     Navy, 118 M.S.P.R. 21 (2012), in determining that the pertinent agency was
     DCMA, Vassallo, 121 M.S.P.R. 70, ¶¶ 9-11.
¶5         The Board noted that, in Washburn, it had rejected OPM’s interpretation of
     the meaning of the word “agency.” Id., ¶ 9. Furthermore, it noted that, while not
     directly on point, its decision in Willingham was instructive on the question of
     defining “agency” for purposes of a VEOA claim.        Id., ¶ 10.   The issue in
     Willingham was whether the Marine Corps Community Services (MCCS), a
     nonappropriated fund instrumentality, was an “agency” within the meaning
     of   5 U.S.C.   §   3330a(a)(1)(A)    for   purposes   of   Board    jurisdiction.
     Willingham, 118 M.S.P.R. 21, ¶ 9. Noting that nothing in the legislative history
     of VEOA shed light on the meaning of “agency,” the Board in Willingham looked
     to other sources for guidance in interpreting the meaning of “agency,” including
     rules of statutory construction. Id., ¶¶ 10-18. Relying primarily on the Act’s
     remedial purpose to establish rights and benefits for veterans, the Board in
     Willingham ultimately concluded that the MCCS should be viewed as the agency
     for purposes of the VEOA provision at 5 U.S.C. § 3330a. Id., ¶¶ 15-18. Thus,
     we noted in our prior decision in this matter that, while Willingham does not
     stand for the proposition that all subcomponents of DOD are agencies for
                                                                                         4

     purposes of VEOA, it does reflect the Board’s determination in VEOA appeals to
     interpret “agency” in a manner that best effectuates the underlying purposes of
     the Act. 1 Vassallo, 121 M.S.P.R. 70, ¶ 10.
¶6         OPM’s argument that the Board’s decision is wrong as a matter of law
     proceeds as follows:    (1) sections 101-105 of Title 5, U.S. Code, constitute a
     comprehensive definitional scheme as to what entities constitute various types of
     agencies; (2) the term “Executive agency” in section 105 encompasses executive
     departments    (including   DOD),    independent     establishments,   and   military
     departments, but not subcomponents of any of those entities 2; (3) these
     definitions apply to subsection 3304(f); (4) the term “agency” in subsection
     3304(f) unambiguously refers to “Executive agency” as defined in 5 U.S.C.
     § 105, and this definition must be applied in this case; and (5) even if the term
     “agency” in subsection 3304(f) is ambiguous, the Board must defer to OPM’s
     regulation at 5 C.F.R. § 315.611, which specifies that the definition in 5 U.S.C.
     § 105 applies to claims under 5 U.S.C. § 3304(f). Reconsideration File, Tab 5.

                                         ANALYSIS
¶7         We do not agree with OPM’s contention that the term “agency” in
     subsection 3304(f) unambiguously refers to “Executive agency” as defined


     1
       While the same statutory ambiguity in Willingham exists in this case, as explained
     below, the ambiguity in the present matter can be resolved through the application of
     OPM regulation 5 C.F.R. § 315.611. There was no such similar controlling regulation
     at issue in Willingham; accordingly, our decision in this case is not incongruous with
     Willingham.
     2
        OPM is correct that the definition of “Executive agency” does not include
     subcomponents of executive departments, but OPM is incorrect in stating that military
     departments are executive agencies. Executive agencies under section 105 means an
     executive department, a government corporation, and an independent establishment.
     While “Executive department” does include DOD, “military departments” are separately
     defined as encompassing the Departments of the Army, Navy, and Air Force. 5 U.S.C.
     § 102.
                                                                                        5

     in 5 U.S.C. § 105.     The unmodified term “agency” is not defined in 5 U.S.C.
     §§ 101-105;    those    sections   define   “Executive    departments,”    “military
     departments,” “Government corporation,” “independent establishment,” and
     “Executive agency.”     Nevertheless, we agree with OPM’s contention that any
     ambiguity is resolved by its regulation at 5 C.F.R. § 315.611.
¶8         When the language of a statute is ambiguous or Congress has left a gap to
     be filled, the interpretation of the agency entrusted with implementing the statute
     must be upheld so long as it is a permissible construction of the statute. Chevron,
     U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984).
     When there is an express delegation of rulemaking authority to fill gaps in the
     statutory scheme, the agency’s “legislative regulation” will be given controlling
     weight unless it is arbitrary, capricious, or manifestly contrary to the statute. Id.
     at 843-44. The statute that spells out the substantive entitlement of preference
     eligibles and veterans to have an opportunity to compete for vacant positions
     specifies that “[OPM] shall prescribe regulations necessary for the administration
     of this subsection.” 5 U.S.C. § 3304(f)(5). OPM has prescribed such regulations
     in 5 C.F.R. §§ 335.106 and 315.611. Section 335.106, titled “Special selection
     procedures for certain veterans under merit promotion,” provides as follows:
           Preference eligibles or veterans who have been separated under
           honorable conditions from the armed forces after completing (as
           determined by the agency) 3 or more years of continuous active
           military service may compete for vacancies under merit promotion
           when an agency accepts applications from individuals outside its
           own workforce. Those veterans selected will be given career or
           career conditional appointments under § 315.611 of this chapter.
     Section 315.611, titled “Appointment of certain veterans who have competed
     under agency merit promotion announcements,” provides the following definition
     at subsection (b):     “‘Agency’ in this context means an executive agency as
     defined in 5 U.S.C. 105.”
¶9         There can be no doubt that interpreting the word “agency” in 5 U.S.C.
     § 3304(f)(1) to mean “Executive agency” as defined in 5 U.S.C. § 105 is a
                                                                                          6

      permissible construction of the statute, and we must therefore give OPM’s
      regulation controlling weight. Given the above, the agency was not required to
      give the appellant an “opportunity to compete” because “the agency making the
      announcement”— DOD—did not accept applications from individuals outside its
      own workforce under merit promotion procedures. It restricted applications to
      individuals within its own workforce. Of course, the appellant was in DOD’s
      workforce in this case. Whether the agency erred in not accepting the SF-50,
      however, is not a matter for the Board to review under 5 U.S.C. § 3304(f).
¶10         Accordingly, we reverse our previous decision and deny the appellant’s
      request for corrective action. 3

                                            ORDER
¶11         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:



      3
        In Washburn, 119 M.S.P.R. 265, ¶ 7, the Board relied on a different OPM regulation,
      5 C.F.R. § 330.101(a), which defines “agencies” for the purpose of “Filling Vacancies
      in the Competitive Service” as including military departments. The definition at
      5 C.F.R. § 315.611 for “agency” is narrower, as it relies on 5 U.S.C. § 105. DOD is an
      executive department under 5 U.S.C. § 101, and is therefore an executive agency under
      5 U.S.C. § 105, which includes, among other things, an executive department. By
      contrast, the Department of the Air Force is a “military department” as defined in
      5 U.S.C. § 102, which is not included in the definition of “Executive agency” under
      section 105. Because the instant matter does not involve a military department, we
      need not resolve this apparent inconsistency in the regulations at this time.
                                                                                  7

                               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 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
                                                                         8

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.
