                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DAVID DEAN,                                     DOCKET NUMBER
                         Appellant,                  AT-3330-14-0020-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: April 2, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           David Dean, Lugoff, South Carolina, pro se.

           William David Vernon, Esquire, Joint Base Andrews, Maryland, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action pursuant to the Veterans Employment
     Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review. We MODIFY
     the initial decision to address the administrative judge’s statement that the
     provisions at 5 U.S.C. §§ 3309 and 3318 are not applicable to this matter because
     they only apply to the competitive service, but we conclude that a different
     outcome is not warranted. Except as expressly modified by this Final Order, we
     AFFIRM the initial decision.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed an appeal challenging the agency’s use of the PALACE
     Acquire Program to fill vacancies for various Air Force Office of Special
     Investigations (AFOSI) criminal investigator positions as a violation of his
     veterans’ preference rights. See, e.g., Initial Appeal File (IAF), Tabs 1, 6, 7, 13,
     17.   The appellant withdrew his request for a hearing.         IAF, Tab 9.      The
     administrative judge found that the Board has jurisdiction over the appeal. IAF,
     Tab 18.
¶3         The administrative judge granted the agency’s motion to compel discovery,
     and she ordered the appellant to provide the agency with complete responses to
     its discovery requests and to reschedule the deposition. See IAF, Tab 18. When
     the appellant did not comply with the administrative judge’s order, she sanctioned
                                                                                      3

     him by refusing to permit him to submit an affidavit, declaration, or statement in
     support of his appeal, and she explained that any prior affidavit, declaration, or
     statement previously submitted “[would] be considered for the limited purpose of
     setting forth the parameters of his claim but will not be afforded any evidentiary
     weight.” See IAF, Tab 26.
¶4        The administrative judge issued an initial decision that denied the
     appellant’s request for corrective action. IAF, Tab 29, Initial Decision (ID). In
     pertinent part, the administrative judge noted that:         (1) AFOSI criminal
     investigator positions, including those recruited through the PALACE Acquire
     Program, are Schedule A excepted service positions; (2) the Office of Personnel
     Management (OPM) approved of the excepted service designation in 2002 and
     renewed it every year since; (3) the AFOSI criminal investigator positions are
     filled through college campus recruiting events; (4) in 2013, the recruiting events
     were held at the University of Texas, San Antonio, George Mason University in
     Fairfax, Virginia, and California State University at San Bernadino; and (5)
     although recruiting events are held at particular campuses, vacancies are not
     restricted to students at any institution. ID at 2. She concluded that the PALACE
     Acquire Program did not violate the appellant’s veterans’ preference rights
     because OPM properly authorized the use of excepted service recruiting
     procedures for all AFOSI criminal investigator positions, and the AFOSI criminal
     investigator positions were properly designated within Schedule A of the
     excepted service.   ID at 3-6.   The administrative judge further found that the
     appellant has not identified any statute or regulation that allows the Board to
     overturn a decision by OPM to place a class of positions within Schedule A of the
     excepted service. ID at 5. She also concluded that the Board’s holding in Dean
     v. Office of Personnel Management, 115 M.S.P.R. 157 (2010), did not permit the
     Board to override OPM’s discretionary decision to except a class of positions
     from the competitive service under Schedule A when OPM has followed the
     prescribed procedure for evaluating and publishing the exception. ID at 5.
                                                                                      4

¶5        The appellant filed a petition for review, the agency filed a response, and
     the appellant filed a reply.   Petition for Review (PFR) File, Tabs 1, 3-4.     On
     review, the appellant challenges the administrative judge’s legal conclusions, he
     asserts that the administrative judge improperly sanctioned him for “declining to
     participate in an abusive discovery procedure,” and he contends that the agency
     improperly referred to his age and physical condition and misstated his military
     service. PFR File, Tab 1.
¶6        After the parties filed their petition for review submissions, the U.S. Court
     of Appeals for the Federal Circuit (Federal Circuit), in a nonprecedential
     decision, addressed the appellant’s challenge in another Board appeal to OPM’s
     decision to except AFOSI criminal investigator positions from the competitive
     service and the agency’s use of the PALACE Acquire Program as a tool to recruit
     and fill vacancies for these positions. See Dean v. Department of the Air Force,
     2014 WL 5786656 (Fed. Cir. Nov. 7, 2014); see also Dean v. Department of the
     Air Force, MSPB Docket No. AT-3330-13-0327-I-1, Initial Decision (Jan. 6,
     2014).   The court affirmed the initial decision in that case, which denied the
     appellant’s request for corrective action under VEOA, finding that:        (1) the
     administrative judge did not err in finding that these positions had been excepted
     from the competitive service; (2) the agency acted lawfully in not widely
     announcing the PALACE Acquire Program AFOSI criminal investigator positions
     to the general public; and (3) the appellant did not show that the agency acted
     contrary to any veterans’ preference laws or rules, particularly since the
     undisputed description of the program gives veterans’ preference points to
     applicants. See Dean, 2014 WL 5786656 at *3.

     The Federal Circuit’s nonprecedential decision in Dean is persuasive, and the
     administrative judge properly denied the appellant’s request for corrective action.
¶7        Although Dean is an unpublished decision, the Board may rely on
     unpublished Federal Circuit decisions if it finds the court’s reasoning persuasive.
     E.g., Herring v. Department of the Navy, 90 M.S.P.R. 165, ¶ 13 n.* (2001).
                                                                                           5

     Significantly, the court addressed the same hiring program (PALACE Acquire)
     and the same types of positions (AFOSI criminal investigator positions) that are
     at issue in this matter. 2 Under these circumstances, we find persuasive the court’s
     conclusion that the AFOSI criminal investigator positions recruited through the
     PALACE Acquire Program were properly excepted from the competitive service.
     See, e.g., Dean v. Department of Labor, 2015 MSPB 22, ¶¶ 28-29 (discussing the
     court’s nonprecedential decision in Dean as support for its conclusion that the
     Recent Graduates Program, which was part of the Pathways Pro gram, was proper
     and not a violation of the appellant’s veterans’ preference rights). We affirm the
     initial decision in this regard.
¶8         We also have considered the appellant’s arguments challenging the
     administrative judge’s conclusion that he failed to prove that his veterans’
     preference rights were violated, but these arguments are unavailing. For instance,
     we have considered the appellant’s reference to the decision in Massachusetts v.
     Feeney, 442 U.S. 256 (1979), as support for his assertion that the administrative
     judge erred when she concluded that he did not identify a statute or regulation
     that allowed the Board to overturn a decision by OPM to place a class of
     positions within Schedule A of the excepted service. PFR File, Tab 1 at 5. The
     Supreme Court in Feeney found that the state’s absolute lifetime preference for
     veterans in civil service hiring did not discriminate against women in violation of
     the Equal Protection Clause. See Feeney, 442 U.S. at 271-81. Feeney does not
     warrant a different outcome in this VEOA appeal. See, e.g., Dean, 2015 MSPB
     22, ¶ 31 (also rejecting the appellant’s assertion that the administrative judge’s
     conclusion contravened Feeney).


     2
       There appear to be only modest factual differences between the earlier Dean matter
     and this instant appeal. For instance, the college campus recruiting events in 2013 were
     held in Virginia, Texas, and California, as opposed to the 2012 events, which were held
     in Maryland, Virginia, and Texas. Compare IAF, Tab 16 at 24-39, with Dean, 2014 WL
     5786656 at *1.
                                                                                       6

¶9         The appellant also asserts on review that the administrative judge erred by
      not considering the case of Gingery v. Department of Defense, 550 F.3d 1347
      (2008). PFR File, Tab 1 at 5-7. He further states that the administrative judge
      erred when she concluded that 5 U.S.C. §§ 3302, 3309, 3318, and 3319 only
      applied to the competitive service.    PFR File, Tab 1 at 7; see ID at 6.      The
      appellant’s argument in this regard has some merit, but for the following reasons,
      it does not warrant a different outcome.
¶10        The statute at 5 U.S.C. § 3320 states that appointments for vacancies in the
      excepted service shall be selected “in the same manner and under the same
      conditions required for the competitive service by sections 3308-3318 of this
      title.” Consistent with this statutory directive, our reviewing court has analyzed
      the application of some of these provisions to the excepted service. See, e.g.,
      Gingery, 550 F.3d at 1351-54 (discussing 5 U.S.C. § 3318(b)); Patterson v.
      Department of the Interior, 424 F.3d 1151, 1156-60 (Fed. Cir. 2005)
      (discussing 5 U.S.C. § 3309). Thus, the administrative judge’s finding that the
      provisions of 5 U.S.C. §§ 3309 and 3318 only apply to the competitive service
      was in error, and we modify the initial decision accordingly.
¶11        Notwithstanding this error, the appellant has not persuaded us that the
      agency, by using the PALACE Acquire Program to fill AFOSI vacancies, violated
      either of these statutory provisions. Section 3309 states that preference eligibles
      who receive a passing grade on an examination into the competitive service are
      entitled to additional points. In Patterson, 424 F.3d at 1156-60, our reviewing
      court addressed how an agency should apply veterans’ preference principles
      found in 5 U.S.C. § 3309 in making hiring decisions to fill attorney vacancies,
      which are in the excepted service and not subject to examination.         Because
      Congress had not spoken on this issue, the court found that OPM’s “gap-filling”
      at 5 C.F.R. § 302.101(c), which requires that veterans’ preference be followed “as
                                                                                         7

      far as administratively feasible,” was entitled to deference. 3 Patterson, 424 F.3d
      at 1157-59.   The court concluded that the agency’s decision to consider Mr.
      Patterson’s veterans’ preference status as a “positive factor” in evaluating his
      application was a “reasonable interpretation” of how 5 U.S.C. §§ 3309 and 3320
      apply to attorney positions within the excepted service, and it found that Mr.
      Patterson failed to assert a violation of his veterans’ preference rights. Patterson,
      424 F.3d at 1159-60.
¶12        Based on our review of the documentary evidence in this record and the
      Dean matter before the Federal Circuit, it appears that the agency calculated a
      weighted score based on various factors for applicants who apply for AFOSI
      criminal investigator positions through the PALACE Acquire Program, and
      veterans’ preference points were later added to that weighted score. See IAF, Tab
      7 at 5-8, Tab 27 at 25-29; see also Dean 2014 WL 5786656 at *1. The appellant
      does not appear to challenge on review the agency’s method for awarding
      veterans’ preference for applicants in this regard. We conclude that he has not
      proven that the agency violated 5 U.S.C. § 3309 as interpreted by our reviewing
      court in Patterson.
¶13        Similarly, the appellant, who did not attend any of the campus recruiting
      events, has not proven that the agency violated 5 U.S.C. § 3318. Section 3318
      sets forth the criteria for selection from certificates, including passover and other
      notification requirements. To the extent that the appellant asserts on review that
      the agency is “attempting to evade applications from veterans,” PFR File, Tab 1
      at 7, he has presented no persuasive evidence in support of this assertion. In light
      of our findings above, we also are not persuaded that the agency violated 5 U.S.C.
      §§ 3302 or 3319, which authorize the President to prescribe rules governing the



      3
        Subsections (c)(6) and (c)(8) of 5 C.F.R. § 302.101 state that Schedule A positions
      and attorney positions, among others, are exempt from the appointment procedures of
      this part.
                                                                                       8

      competitive service (and to make necessary exceptions thereto) and which discuss
      alternative ranking and selection procedures, respectively.
¶14         For these reasons, we affirm as modified the administrative judge’s decision
      to deny corrective action under VEOA.

      We discern no error with the administrative judge’s decision to issue sanctions
      against the appellant.
¶15         The regulation at 5 C.F.R. § 1201.43 allows an administrative judge to
      impose sanctions “as necessary to serve the ends of justice.” When a party fails
      to comply with an order, the administrative judge may, among other things,
      “[p]rohibit the party failing to comply with the order from introducing evidence
      concerning the information sought.” 5 C.F.R. § 1201.43(a)(2). Absent an abuse
      of discretion, the Board will not reverse an administrative judge’s determination
      regarding sanctions. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6
      (2015); Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013).
¶16         We find that the administrative judge did not abuse her discretion in issuing
      sanctions in this regard. As noted above, the administrative judge granted the
      agency’s motion to compel, and she ordered the appellant to respond to the
      agency’s discovery requests and to contact the agency to reschedule the
      deposition. IAF, Tab 18. The administrative judge advised the appellant in this
      order that she may impose sanctions pursuant to 5 C.F.R. § 1201.43 if he failed to
      comply with the order, and she subsequently reminded him that failure to comply
      with her order regarding discovery may lead to sanctions. See IAF, Tabs 18, 20.
      Despite these warnings, the appellant did not respond to the agency’s discovery
      requests nor did he appear for a deposition.     See, e.g., IAF, Tab 23 at 4 (“I
      respectfully decline to participate in the Agency Representative’s abusive
      requests.”).   We therefore find that the administrative judge did not abuse her
      discretion in deciding to issue sanctions under these circumstances. See Smets v.
      Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011) (the administrative judge
      did not abuse her discretion when she precluded the appellant from submitting
                                                                                      9

      additional evidence regarding her claim of disability discrimination after the
      appellant did not comply with the administrative judge’s order to appear for a
      deposition), aff’d, 498 F. App’x 1 (Fed. Cir. 2013); Wagner v. Department of
      Homeland Security, 105 M.S.P.R. 67, ¶ 13 (2007) (explaining, in a chapter 75
      appeal, that an appropriate sanction for the appellant’s failure to respond to the
      agency’s discovery requests would have been to preclude him from putting on
      evidence in support of any defense or rebuttal to the charges with respect to
      which he had not provided discovery responses).

      Other issues
¶17        Regarding the appellant’s assertion that his appeal has been converted to a
      mixed-case appeal by virtue of the agency’s statements regarding his age and
      ability to perform in the position, the Board has no authority to review, in the
      context of a VEOA appeal, a claim of discrimination covered under 5 U.S.C.
      § 7702(a)(1). See Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12
      (2001). To the extent that the agency may have misstated the appellant’s military
      service, any such error does not warrant a different outcome.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   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.
                                                                                 10

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
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.
