N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DAVID DEAN, Petitioner,

v.

DEPARTMENT OF THE AI R 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

______________________
D AVID D EAN , of Lugoff , South Carolina, pro se.

A. B ONDURANT E LEY , Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were S TUART F. D ELERY , Assistant Attorney General, R OBERT E. K IRSCHMAN , J R ., Director, and C LAUDIA B URKE , Assistant Director

.

______________________DEAN v. AIR FORCE 2

Before P ROST , Chief Judge, N EWMAN , and T ARANTO , Circuit Judges.
P ER C URIAM

. 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 r equire application through a college recruiting pro gram. Mr. Dean challenged the requirement as violating rules
req uiring public announcements for vacancies in the competitive service
, J.A. 1 2– 13 ; see 5 U.S.C. §§ 2102, 3327, 3330, and as den ying him rights to veterans’ prefe rences in seeking federal employment
, s ee 5 U.S.C. § 3302(1); Dean v. Office of Pers. Mgmt. , 201 0 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 requir ements, we affirm the Board’s decision dismissing Mr. Dean’s appeal.
B ACKGROUND
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 S enate confirm ation, or (3) in the Senior Executive Service. 5 U.S.C. § 2102(a)(1). To fill a competi tive

- service position, the government uses “open competitive examinations” to mak e final appointments, 5 C.F.R § 2.1 , and it must comply with specified requirements for announcing j obs 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” position s: rather than using “open competitive examinations,” the gover nment may use “more flexible and informal procedures

. . . to recruit and select newDEAN 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 provi ding for “necessary exceptions of positions from the compe titive service” “as nearly as conditions of good admin istration warrant.” 5 U.S.C. § 3302. Th e President has delegated the classification authority to the Office of Personne l 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 po sitions from

com petitive

- 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). Th e excepted

- service designation has been r enewed every year sinc e its a doption

. See
, e.g. , 78 Fed. Reg . 4 , 883, 4
, 885 (2013).
The Air Force hires a subset of its criminal investig ators

— 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 tho se positions, an applicant must att end one of the Air Force’s recruiting event s , which in 2012 were held at three college campuses (in Maryland, Virginia, and Te xas). Applications are then scored by a panel of Air Force special agents

. Each applicant receives a score based on certain obje ctive criteria plus, where applicable, veterans1 This case turns on the facial legality of the Air Force’s hiring practices . T he 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.DEAN v. AIR FORCE 4

preference points based on disability status, producing an interim score that determines whether an applicant proceed s to the second stage of the hiring process. Mr. Dean filed an appeal with the Merit Syst ems Pr otection Board (Board) to challenge the PALACE Acquire
program as violating civ il

- service competition rules and the laws governing veterans’ preferences . He asked that all hiring decisions made under the recruiting program be vacated and the positio ns filled anew in accordance with the competitive

- service rules. J.A. 13. The Board denied Mr. Dean’s appeal, concluding that the positions ident ified by Mr. Dean had been properly excepted from the competitive service according to governing regulations and therefore were not subject to the rules governing competi tive

- 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 appeal s . We have jurisdiction over pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION We may set aside the Board’s decision only if it was “(1) arbitrary, capricious, an abuse of discretion, or othe rwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been follo wed; or (3) unsupported by substantial ev idence.” 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 pr ogram 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 compet itive

- service positions. Second, he argues that the hiring
process ga ve in sufficient credit to disabled veterans, because it did not comply with ranking requirements for competi tive

- service positions. Mr. Dean acknowledges that his arguments turn on whether the positions made available through the PALACE Acquire program wereDEAN v. AIR FORCE 5

subject to the rules governing competitive

- service vaca ncies. J.A. 22. We agree wi th 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 delegat ion 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

. C f. Nat’l Treasury Empls

. Union , 854 F.2d at 49 5–9 6 (OPM employment classification decisions may be cha llenged in U.S. district court under § 706(2)(A) of the Administrative Procedure Act). We see no error in th at analysis. 2
We likewise see no error in the Board ’s conclusion that OPM had, in fact, made a classification that enco mpassed 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 with in the Office of Special Investigations , including those rec ruited 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

au thority to review OPM classification decisions and im properly declined to exercise it.DEAN v. AIR FORCE 6

did not err in finding that the positions had been excepted from the competitive service

. And i t followed that the Air Force act ed lawfully in not widely announc ing the PALACE Acquire positions to the general public

— a requirement that does not apply to positions excepted from the competitive service

. S ee 5 U.S.C. § 3330; 5 C.F.R. §§ 330 .101

– 330.106 ; Dean , 2010 M.S.P.B. 213
, ¶ 27.
M r. Dean also has not shown that the Air Force acted contrary to any veterans

- preference laws or rules. A ccording 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-p reference requirements he cites restricted the Air Force ’s ability to specify the special recruiting qualifications it adopted in making certain criminal -investigator slots excep ted- service positions in accordance with OPM standards and procedures. In short, b ecause the Board properly found that the PALACE Acquire positions had been duly classified as except ed- service positions in accordance with the law, it did not err in concl uding that the Air Force did not violate laws and regulations governing competitive

- service v acancies or veterans’ preferences

. AFFIRMED