NOTE: This disposition is nonprecedential.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 Litigation 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 require 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’ preferences 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 requirements, 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 confirmation, 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 providing for “necessary exceptions of positions from the competitive 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 renewed 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 investigators—approximately 10 per year—through a program 

called PALACE Acquire. The program recruits entrylevel 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 Texas). 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, veterans1 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 Protection 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 identified 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 otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 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 program 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 competitive-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 vacancies. 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. AT3330-13-0327-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 challenged 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 encompassed 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. According 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 qualifications 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 vacancies or veterans’ preferences. 

AFFIRMED