## United States Court of Appeals for the Federal Circuit

2007-3073

DEVON JOSEPH, Petitioner,

v. FEDERAL TRADE COMMISSION, Respondent.

Doris G. Traub , Traub & Traub, P.C., of New York, New York, argued for petitioner. John C. O’Quinn , Deputy Associate Attorney Gener al, Civil Division, Appellate Staff, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler , Acting Attorney General, and Thomas M. Bondy , Attorney. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

2007-3073 DEVON JOSEPH, Petitioner,

v. FEDERAL TRADE COMMISSION, Respondent.

______________________________ DECIDED: NOVEMBER 5, 2007

______________________________

Before NEWMAN, Circuit Judge , FRIEDMAN, Senior Circuit Judge , and RADER, Circuit Judge

. FRIEDMAN, Senior Circuit Judge

. An unsuccessful applicant for a specific federal position contends that the agency’s procedure in filling the vacancy denied him his veterans’ preference rights. The Merit Systems Protection Board (“Board”) rejected this contention, as do we. I A. Federal agencies generally use two ty pes of selection to fill vacancies: (1) the open “competitive examin ation” process and (2) the “me rit promotion” process. See 5 C.F.R. §§ 330.101, 332.101, 335.103 (2007). The open competitive exami nation generally is used for employees seeking to join the competitive service and often is used for reviewing applicants outside the agency. Under this process, applicants fo r employment are given a numerical ratingand placed on a list of qualified personnel for appointment

. 5 C.F.R. § 2.1. The applicants with the three highest ratings are s ubmitted to the appointing official, who is ordinarily required to select one of them. 5 U.S.C. § 3318(a) (1978). Veterans seeking such employment are given special advantages. Five or ten points are added to their competitive score to determine their final rating. See 5 U.S.C. § 3309; 5 C.F.R. § 337.101( b). They are ranked ahead of others with the same score. See 5 U.S.C. § 3313; 5 C.F.R. § 332.401. If a veteran has t he highest numerical rating on the list, the agency must appoint that in dividual, unless the agency seeks and receives from the Office of Personnel Man agement (“OPM”) written authority to appoint someone ranking below the vete ran. 5 U.S.C. § 3318(b); see Scharein v. Dep’t of Navy , 91 M.S.P.R. 329, 334 (2002). The merit promotion process is used when the position is to be filled by an employee of the agency or by an applicant from outside t he agency who has “status” in the competitive service. See 5 C.F.R. § 335.103(b)(1); see also Perkins v. United States Postal Serv. , 100 M.S.P.R. 48, 51 (2005). Veterans’ point preferences under the competitive ap pointment process do not apply in the merit promotion process. Perkins , 100 M.S.P.R. at 51. Congress has provided, however, that “for all merit prom otion announcements . . . veterans . . . are eligible to apply.” 5 U.S.C. §§ 3304(f)(3) – (4). Veter ans “may not be denied the opportunity to compete for vacant posit ions for which the agency making the announcement will accept applications from indi viduals outside its own workforce under merit promotion procedures.” 5 U.S.C. § 3304(f)(1). Congress further provided,

2007-3073 2however, that the latter pr ovision does not “confer an entitlement to veterans’ preference that is not ot herwise required by law.” 5 U.S.C. § 3304(f)(3).
B. In 2004 the Federal Trade Commi ssion (“Commission”) announced that it would appoint a paralegal and invit ed applications for the position. Joseph v. Fed. Trade Comm’n , 103 M.S.P.R. 684, 685-86 (2006). The announcement stated that the Commission could consider applicants under both merit pr omotion and open competitive procedures if they either submitted two applic ations or indicated they wanted to be considered under both procedures. Id. at 686. The petitioner Devon Joseph, a veter an employed by another federal agency, applied for the position and r equested that he be consider ed under both procedures. Id. The Commission evaluated and rated all of the applicants under both procedures. Id. The Commission then prepared a merit promotion list that alphabetica lly listed the four applicants with the highest numerical ratings. Id. Joseph and Cheryl Thomas, a Commission employee whom the agency ultimately selected for the position, were among the four. Id. The Commission also listed the three top applicants rated under the competitive process. Id. Joseph was ranked first on that list — a ranking that reflected a ten point ve terans’ preference. Id. Ms. Thomas wa s not listed on the competitive list. Id. The Commission decided to make the appoint ment from the merit promotion list. It interviewed the four candidates on that list, including Joseph, and selected Ms. Thomas, a non-veteran. Id. After unsuccessfully challenging his non- appointment before the Department of Labor, pursuant to 5 U.S.C. § 3 330(a)(1), as violating his ve terans’ preference rights,

2007-3073 3Joseph appealed his non-selecti on to the Board. Because he was a Board employee, the Board referred the complaint to the Nati onal Labor Relations Boar d for adjudication by one of that agency’s admin istrative law judges. In his initial decision the administrative law judge sustained Joseph’s contention and or dered his selection. The Board, however, reversed. The Board held that Joseph received veterans’ preference in the competitive examination that the agency used to assess external candidates for the Paralegal Specialist position. The appellant did not receive veterans’ preference in the c oncurrent assessment that the agency conducted under merit pr omotion procedures, but as explained above, an individual is not entitled to veterans’ preference under merit pr omotion procedures. See Perkins , 100 M.S.P.R. 48, ¶ 9. The AL J committed a clear error of law in concluding that the appel lant’s veterans’ preference rights were violated. Id. at 688. II Joseph does not challenge the Commission’s simultaneous use of the open competition examination process (in which his veterans’ ten- point preference was recognized) and the merit promotion proc ess (in which that preference was not recognized) to fill a single position. He challenges only the way the Commission used the two processes to make its selection. He contends that having conducted the open competition process, in which he was at the top of the list after receiving a ten point veterans’ preference, the Commission could not then make its selection from the merit process list, which did not reflect his veterans ’ preference. Such selection, he contends, denied him his preference rights. The statutory and regulatory provisions defining veterans’ rights in seeking and obtaining federal employment require rejection of this contention.

2007-3073 4The addition of points to a veteran’s score because of his status applies only in the open competition ex amination process and no t in the merit appoi ntment process. The Commission fully recognized Joseph’s ve terans’ preference in the competitive examination process when it added ten-points to his score because he was a disabled veteran. If the Commission had made its selection by that pr ocess, presumably it would have selected Joseph, unless it had obtaine d OPM authority to choose someone else. The Commission, however, made the appoi ntment not under that process but under the merit promotion process, in which the requirement to appoint a veteran who is at the top of the list did not apply. The question is w hether the provisions governing veterans’ rights under merit promotion pr ocedures precluded the Commission from doing so. The answer is no. Unlike the statutes governing open com petition applicants, under which a veteran’s numerical rating is increased because of his status and a veteran ordinarily is appointed if he is at the top of the list, C ongress adopted a different approach in dealing with veterans and merit promotion. It guaran teed veterans only a right to apply and an opportunity to compete for such positions. It said nothing about the basis upon which the agency could make its selection. The critical statutor y provision is 5 U. S.C. § 3304(f)(1), which was added to the veterans statutes by the Veterans Employment Opportunity Act of 1998 (“VEOA”). It provides that “all merit promot ion announcements . . . shall indica te that . . . veterans . . . are eligible to apply . . .” and that specified categories of veterans may not be denied the opportunity to compete for vacant positions for which the agency . . . will accept applications from individuals outside its own workforce under merit promotion procedures.

2007-3073 5All that this latter provision entitles vete rans to is “the opportu nity to compete for vacant positions” to be filled “under meri t promotion procedures.” Indeed, the same statute also provides that th is “opportunity to compete” provision “shall not be construed to confer an entitlement to ve terans’ preference that is not otherwise required by law.” As the Board has correctly pointed out, “ an employee is not entitled to veterans’ preference in the merit promotion process.” Perkins , 100 M.S.P.R. at 51. Joseph was given a full “oppor tunity to compete” in the merit selection process by which the appointment was made. He filed hi s application, and he was one of four applicants who qualified fo r final consideration. He, like the other three in that group, was interviewed before the fina l selection was made. The fa ct that he was not selected does not mean that he did not have a full “oppor tunity to compete”; it means only that, after such competition, he was not selected. Joseph received his ten point veter ans’ preference under the competitive examination procedure, but the Commission then decided to make the appointment under the alternative merit prom otion procedure. We know of no statute or regulatory provision that required the Co mmission, once it undertook to inaugurate the selection process by following the alternative procedur e, to limit itself to the competitive examination process in making it s final selection. As the B oard pointed out in this case, “[a]n agency has the discretion to fill a vacant position by any authorized method. 5 C.F.R. § 330.101; Sherwood v. Department of Veterans Affairs , 88 M.S.P.R. 208, ¶ 10 (2001).” Joseph , 103 M.S.P.R. at 689. Joseph’s argument would preclude the agency from using the selection process that it deems most suitable for filling the particular
vacancy.

2007-3073 6This court rejected a comparable atte mpt to invalidate a non-appointment because it denied veterans’ preference rights in Abell v. Departm ent of the Navy , 343 F.3d 1378 (Fed. Cir. 2003). There the Navy announced three vacancies for the same position and that it would consider applications under both merit promotion and competitive examinat ion procedures. Id. at 1380. Abell, a ve teran, applied for any one of those positions. Id. The Navy appointed other applicant s to two of the positions — one under the merit promotion process and the other under t he competitive examination
process. Id. at 1381. It then cance lled the third vacancy. Id. Abell challenged the Navy’s cancellation of the third vacancy as violating his veterans’ preference rights because such ac tion denied him the opportunity to compete for that position. Id. at 1381-82. We sustained the Navy’ s action. We “h[e]ld that Mr. Abell was not denied his opportuni ty to compete by virtue of the Navy’s decision to cancel the vacancy announcement.” Id. at 1384. We explained: The VEOA required that the Navy give Mr. Abell the opportunity to compete for the three vacant positions; the VEOA did not require t hat the Navy give Mr. Abell a position if he scored the most points. The Navy reasonably relied on its interview process to determi ne that Mr. Abell did not meet the qualifications requir ed for the position. In short, Mr. Abell had the opportunity to compete and did compete; the Navy’s decision not to fill the positi on did not violate Mr. Abell’s rights under the VEOA. Id. at 1384-85. Similar reasoning applies in this case and requires the sa me conclusion. Although the issue in Abell was the Navy’s right to cancel the third vacancy after filling the other two, there are significant similariti es between that case and the present one. In both cases the agency co nducted simultaneous paralle l procedures under the

2007-3073 72007-3073 8 competitive examination and me rit promotion processes to fill the same position. In both cases the alleged violat ion of the veteran’s prefer ence stems from the agency’s failure to appoint the veteran to a position he sought — in Abell by canceling the position, and in the present case by maki ng the selection under the merit promotion process, in which someone ot her than the veteran was selected. In both cases the dispositive issue is whether the employing agency denied t he applicant the opportunity to compete. Just as the Navy did not deny such an opportunity when it cancelled the third vacancy, so the Commission also di d not deny the opportunity to compete by selecting another applicant under its merit promotion process. By changing a few words to reflect the different facts in the present case, the following statement from the Abell opinion quoted above is equ ally applicable in the present case: The [Commission] gave Mr. [Joseph] the opportunity to compete for the . . . vacant position[;] the VEOA did not require that the [Commission] gi ve Mr. [Joseph] a position if he scored the most points. . . . In short, Mr. [Joseph] had the opportunity to compete and did compete; the [Commission’s] decision . . . to fill the posit ion [through the merit system rather than through the competit ive process] did not violate Mr. [Joseph’s] rights under the VEOA. Id. at 1384-85. CONCLUSION The decision of the Merit S ystems Protection Board is AFFIRMED

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