United States Court of Appeals 

for the Federal Circuit ______________________ 

DAVID DEAN,

Petitioner

v.

DEPARTMENT OF LABOR,

Respondent

______________________ 

2015-3131

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-3330-13-0235-I-1.

______________________ 

Decided: December 9, 2015

______________________ 

 DAVID DEAN, Lugoff, SC, pro se.

 DOUGLAS GLENN EDELSCHICK, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

STEVEN J. GILLINGHAM; JAMES V. BLAIR, MELANIE L. PAUL, 

Office of the Solicitor, United States Department of Labor, 

Washington, DC; JULIE L. FERGUSON QUEEN, KATHIE A.

WHIPPLE, ROBIN M. RICHARDSON, STEVEN E. ABOW, Office 

of the General Counsel, Office of Personnel Management, 

Washington, DC. 

______________________ 
2 DEAN v. LABOR

Before CHEN, MAYER, and STOLL, Circuit Judges.

PER CURIAM. 

 Petitioner David Dean seeks review of a decision by

the Merit Systems Protection Board (“Board”) rejecting 

his claim under the Veterans Employment Opportunities 

Act of 1998.

BACKGROUND

I.

Most federal civil service employees are employed in 

either the competitive service or the excepted service. 

Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 492 

(D.C. Cir. 1988); see also 5 U.S.C. §§ 2102(a)(1), 2103(a). 

Applicants for employment in the competitive service 

must generally take a “competitive examination” administered by the Office of Personnel Management (“OPM”). 

Nat’l Treasury Emps. Union, 854 F.2d at 492. The President, however, is authorized to make “necessary exceptions of positions from the competitive service” when 

warranted by “conditions of good administration.” Id.

(citing 5 U.S.C. § 3302(1)). Applicants for excepted service positions are not required to take a competitive 

examination; instead, more flexible and informal procedures can be used to hire employees into the excepted 

service. Id. 

The Veterans’ Preference Act (“VPA”) is also an important aspect of competitive service hiring. Under the 

VPA, agencies must provide advantages to veterans and 

their families, known as “preference eligibles.” 5 U.S.C. 

§ 2108(3) (defining “preference eligible” to include certain 

veterans and their family members); id. §§ 3309–3318 

(describing advantages given to preference eligibles). 

Under 5 U.S.C. § 3320, these veterans’ preference programs also apply to hiring in the excepted service. Specifically, § 3320 provides that the excepted service shall be 
DEAN v. LABOR 3

filled “in the same manner and under the same conditions 

required for the competitive service by sections 3308–

3318.” OPM’s regulations provide that when numerical 

scores are used to evaluate candidates, the agency will 

grant additional points to preference eligibles. 5 C.F.R. 

§ 302.201(a). If, however, candidates for an excepted 

service position are evaluated without numerical ratings, 

the agency can use the veterans’ preference as a plus 

factor. Id. § 302.201(b); Patterson v. Dep’t of Interior, 424 

F.3d 1151, 1158–59 (Fed. Cir. 2005). Further, the Veterans Employment Opportunities Act (“VEOA”) provides a 

remedy for a preference-eligible veteran “who alleges that 

an agency has violated . . . [his or her] rights under any 

statute or regulation relating to veterans’ preference.” 

5 U.S.C. § 3330a(a)(1)(A).

In 2010, President Obama signed Executive Order 

No. 13,562, creating the “Pathways Programs,” including 

the Internship Program, the Recent Graduates Program, 

and the modified Presidential Management Fellows 

Program. Exec. Order No. 13,562, 75 Fed. Reg. 82,585 

(Dec. 30, 2010). The President explained: 

The Federal Government benefits from a diverse 

workforce that includes students and recent graduates, who infuse the workplace with their enthusiasm, talents, and unique perspectives. The 

existing competitive hiring process for the Federal 

civil service, however, is structured in a manner 

that, even at the entry level, favors job applicants 

who have significant previous work experience. 

This structure, along with the complexity of the 

rules governing admission to the career civil service, creates a barrier to recruiting and hiring 

students and recent graduates. It places the Federal Government at a competitive disadvantage 

compared to private-sector employers when it 

comes to hiring qualified applicants for entry-level 

positions.
4 DEAN v. LABOR

Id. The order directed OPM to issue regulations implementing the Pathways Programs. Id. The order further 

provided that participants in the Recent Graduates 

Program “must have obtained a qualifying degree . . . 

within the preceding 2 years,” except that certain veterans would be eligible within 6 years of obtaining a qualifying degree. Id. at 82,586.

Pursuant to the Executive Order, OPM promulgated 

5 C.F.R. pt. 362 to implement the Pathways Programs. 

With respect to the Recent Graduates Program, OPM set 

forth eligibility criteria in 5 C.F.R. § 362.302 explaining 

that eligibility was limited to certain recent graduates. 

OPM also explained that “[a]n agency must evaluate 

candidates using OPM Qualification Standards for the 

occupation and grade level of the position being filled.” 

5 C.F.R. § 362.303(d). 

II.

Mr. Dean, a preference-eligible veteran, applied for a

position as a “Recent Graduate” Wage and Hour Specialist within the Department of Labor. The position’s announcement stated that the position “is a part of the 

Pathways Employment Program,” open only to “[e]ligible 

recent graduates from qualifying educational institutions.” R.A. 31. The announcement separately identified 

job “qualifications”—which did not include a minimum 

educational requirement—and program “eligibility”—

which required a “degree or certificate from a qualifying 

educational institution within the previous two years,” or 

previous six years for certain veterans. R.A. 33–35. 

Thirty-four veterans met the eligibility requirements of 

the position and were referred to the selecting official. 

Mr. Dean ultimately was not considered for the position 

because he had not graduated within the timeframe 

established under the program. 

After exhausting his administrative remedies, 

Mr. Dean filed a VEOA appeal asserting that his veter-
DEAN v. LABOR 5

ans’ preference rights were violated by his exclusion from 

consideration for the “Recent Graduate” Wage and Hour 

Specialist position. An administrative judge denied

Mr. Dean’s request for corrective action. Mr. Dean filed a 

petition for review with the Board, arguing that his 

veterans’ preference rights were violated because there 

was no rational basis for the recent graduate criterion and 

because the job announcement prescribed a minimum 

educational requirement. The Board found that 

Mr. Dean’s complaint that his veterans’ preference rights 

were violated implicated two statutes: 5 U.S.C. § 3302(1), 

authorizing the President to except positions from the 

competitive service, and 5 U.S.C. § 3308, limiting OPM’s 

ability to include minimum educational requirements for 

positions in the competitive service that are subject to 

examination. Mr. Dean also argued that the administrative judge improperly closed the record without warning, 

failing to consider evidence and arguments he submitted, 

and that the administrative judge improperly denied him 

a hearing. 

The Board determined that the administrative judge 

improperly closed the record, and therefore gave consideration to all of Mr. Dean’s written submissions. The 

Board also determined that the administrative judge did 

not err in denying Mr. Dean a hearing because there were 

no disputed issues of material fact. 

The Board next considered its jurisdiction over 

Mr. Dean’s VEOA complaint. Pursuant to 5 U.S.C. 

§ 3330a(a)(1)(A), redress under the VEOA is limited to 

violations “under any statute or regulation relating to 

veterans’ preference.” Although the Board did not expressly address whether § 3302 is a statute relating to 

veterans’ preference, the Board implicitly concluded that 

it is such a statute when it considered the merits of Mr. 

Dean’s claim alleging a violation of § 3302. The Board

then determined that § 3308 is not a statute relating to 

veterans’ preference, overruling its prior decision to the 
6 DEAN v. LABOR

contrary in Burroughs v. Dep’t of the Army, 115 M.S.P.R. 

656, aff’d, 445 F. App’x 347 (Fed. Cir. 2011). Nevertheless, the Board considered whether violations of either

§ 3302(1) or § 3308 had occurred and affirmed the administrative judge’s initial denial of Mr. Dean’s request for 

corrective action. 

Mr. Dean timely appealed to this court, and we have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We must affirm a final decision of the 

Board unless it is (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); Stout v. Merit 

Sys. Prot. Bd., 389 F.3d 1233, 1237 (Fed. Cir. 2004). We 

review questions of law, including jurisdictional judgments and statutory interpretation, without deference. 

Wallace v. Office of Pers. Mgmt., 283 F.3d 1360, 1361 

(Fed. Cir. 2002); Forest v. Merit Sys. Prot. Bd., 47 F.3d 

409, 410 (Fed. Cir. 1995). 

We review the validity of an agency’s interpretation of 

a statute under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). Under a 

Chevron analysis, we first ask “whether Congress has 

directly spoken to the precise question at issue.” Chevron, 

467 U.S. at 842. If so, we “must give effect to the unambiguously expressed intent of Congress.” Id. at 843. If 

not, we ask “whether the agency’s answer is based on a 

permissible construction of the statute.” Id. “[A] court 

may not substitute its own construction of a statutory 

provision for a reasonable interpretation made by the 

administrator of an agency.” Id. at 844. 
DEAN v. LABOR 7

As an initial matter, we must satisfy ourselves as to 

whether the Board possessed jurisdiction over Mr. Dean’s 

complaint. As previously noted, the Board’s jurisdiction

over VEOA complaints is provided by 5 U.S.C. § 3330a 

and is limited to alleged violations of any statute or 

regulation “relating to veterans’ preference.” Because Mr. 

Dean’s complaint implicated §§ 3302(1) and 3308 of Title 

5, we must consider whether these statutes relate to 

veterans’ preference. Notably, the government argues 

that they do not.

I.

5 U.S.C. § 3302(1) relates to veterans’ preference

We hold that § 3302(1) is a statute “relating to veterans’ preference” and thus the VEOA confers jurisdiction 

to consider claims under that section. 

Section 3302(1) provides that “[t]he President may 

prescribe rules governing the competitive service. The 

rules shall provide, as nearly as conditions of good administration warrant, for necessary exceptions of positions 

from the competitive service.” The Board previously held

that § 3302(1) is a statute relating to veterans’ preference 

within the meaning of § 3330a. Dean v. Office of Pers. 

Mgmt., 115 M.S.P.R. 157 (2010). Because “relating to” is 

not defined by any statute or regulation, the Board gave 

the phrase its common meaning, i.e., “stands in some 

relation to,” “has bearing on,” “concerns,” or “has a connection with.” Id. at 165. The Board ultimately determined that “section 3302(1) is a statute relating to 

veterans’ preference because veterans’ preference is a 

central feature of the system for examining candidates for 

entry into the competitive service; the creation of exceptions from the competitive service necessarily implicates 

veterans’ preference rights.” The Board further explained: 
8 DEAN v. LABOR

Veterans’ preference in hiring has its force and effect under the two methods for assessing candidates for the competitive service . . . . By 

establishing competitive-service hiring as the 

norm, section 3302(1) is intrinsically connected to 

veterans’ preference rights in that it ensures that 

such rights are not circumvented or ignored.

Id. at 166, 168. 

We recognize that veterans’ preferences apply to both 

the competitive service and the excepted service by operation of § 3320. However, the government never disputes 

that moving positions from the competitive service to the 

excepted service necessarily implicates the strength of the 

impact of veterans’ preferences on hiring decisions. 

Instead, the government argues that § 3302(1) is not a 

statute relating to veterans’ preference. The government 

first notes that the text of § 3302(1) does not refer to 

veterans or veterans’ preferences and argues that it 

therefore is not a statute relating to veterans’ preference. 

We are not persuaded that a statute must recite the term 

“veteran” to be a statute relating to veterans’ preference. 

Rather, we are persuaded by the Board’s reasoning in 

Dean, 115 M.S.P.R. at 166, 168.

The government next argues that the context and 

structure of the VEOA bolster its position, noting that the 

VEOA defines the term “veterans’ preference requirement” and “expressly identifie[s] a list of the statutes and 

types of regulations that qualify as a ‘veterans’ preference 

requirement’ for purposes of the VEOA.” Appellee’s 

Br. 14; see VEOA § 6, 112 Stat. 3182, 3187–88 (codified at

5 U.S.C. § 2302(e)(1)). Because § 3302(1) is not included 

in that list of “veterans’ preference requirements,” the 

government argues that it is not a statute “relating to 

veterans’ preference.” This argument is not persuasive. 

The phrase “relating to veterans’ preference” in 

§ 3330a is broader in scope on its face than a “veterans’ 
DEAN v. LABOR 9

preference requirement” as defined in § 2302(e)(1). Nothing in the text of § 3330a or the VEOA suggests that a 

“statute . . . relating to veterans’ preference” is limited to 

a “veterans’ preference requirement” as defined in

§ 2302(e)(1). To the contrary, § 2302(e)(1) specifically 

defines “veterans’ preference requirement” for the purpose 

of § 2302 only. 5 U.S.C. § 2302(e)(1) (“For the purpose of 

this section, the term ‘veterans’ preference requirement’ 

means any of the following provisions of law . . . .”). 

Congress used broader language in § 3330a (“relating to 

veterans’ preference”) to delimit the scope of complaints 

that could be brought by preference-eligible veterans 

under the VEOA. 

While we agree that statutes “relating to veterans’ 

preference” may include the statutes enumerated in 

§ 2302(e)(1), we do not find it appropriate to restrict the 

scope of statutes “relating to veterans’ preference” under 

§ 3330a to only the “veterans’ preference requirements” 

enumerated in § 2302(e)(1). See Sosa v. Alvarez–Machain, 

542 U.S. 692, 711 n.9 (2004) (recognizing “the usual rule 

that when the legislature uses certain language in one 

part of the statute and different language in another, the 

court assumes different meanings were intended” (internal quotation marks omitted)); Res-Care, Inc. v. United 

States, 735 F.3d 1384, 1389 (Fed. Cir. 2013) (“A cardinal 

doctrine of statutory interpretation is the presumption 

that Congress’s ‘use of different terms within related 

statutes generally implies that different meanings were 

intended.’” (quoting 2A Norman Singer, Statutes and 

Statutory Construction § 46.06 (7th ed. 2007))). Congress 

could have listed the statutes “relating to veterans’ preference” for the purpose of § 3330a—just as it listed the

“veterans’ preference requirements” for the purpose of 

§ 2302—but it did not do so. The government’s attempt to 

limit the scope of § 3330a to the “veterans’ preference 

requirements” of § 2302 is inconsistent with broader 

language used by Congress in § 3330a.
10 DEAN v. LABOR

For the reasons articulated above, we agree with the 

Board’s holding in Dean, 115 M.S.P.R. at 168, that 

§ 3302(1) is a statute relating to veterans’ preference for 

the purpose of jurisdiction under § 3330a. 

5 U.S.C. § 3308 relates to veterans’ preference

The Board held, and the government argues, that the 

Board lacked jurisdiction under the VEOA to consider a 

violation of § 3308. As explained below, we disagree and 

hold that the VEOA confers jurisdiction on the Board to 

consider violations of § 3308 because it is a statute “relating to veterans’ preference.” 

Section 3308 states: 

The Office of Personnel Management or other examining agency may not prescribe a minimum 

educational requirement for an examination for 

the competitive service except when the Office decides that the duties of a scientific, technical, or 

professional position cannot be performed by an 

individual who does not have a prescribed minimum education. The Office shall make the reasons for its decision under this section a part of its 

public records.

The Board held that § 3308 is not a statute relating to 

veterans’ preference for the purpose of § 3330a, overruling 

its prior decision in Burroughs. 

In Burroughs, the Board held that § 3308 is a statute 

relating to veterans’ preference, explaining that § 3308 

derives from § 5 of the VPA. 115 M.S.P.R. at 661; see also 

VPA § 5, 58 Stat. 387, 388–89. Section 5 of the VPA 

provided that “[n]o minimum educational requirement 

will be prescribed in any civil-service examination except 

for such scientific, technical, or professional positions the 

duties of which the Civil Service Commission decides 

cannot be performed by a person who does not have such 

education.” VPA § 5, 58 Stat. 387, 388–89 (codified at 5 
DEAN v. LABOR 11

U.S.C. § 854 (1946)). The Board in Burroughs also cited 

49 U.S.C. § 40122(g)(2)(B) for additional support that 

§ 3308 is a statute relating to veterans’ preference. Id. 

Section 40122(g) lists provisions of Title 5 that apply to 

the Federal Aviation Administration’s (“FAA”) personnel 

management system, including “sections 3308–3320, 

relating to veterans’ preference.” 49 U.S.C. § 40122(g). 

We affirmed the Board’s holdings in Burroughs. 445 

F. App’x 347, 350 (Fed. Cir. 2011). 

The Board in this case, however, reversed its holding 

in Burroughs, concluding that § 3308 is not a statute 

relating to veterans’ preference. The Board acknowledged 

the similarity between § 3308 and § 5 of the VPA, but

reasoned that “a mere general similarity between provisions of section 3308 and the Veterans’ Preference Act, by 

itself, is insufficient to conclude that this section relates to 

veterans’ preference.” 122 M.S.P.R. 276, 282 (2015). The 

Board also discounted 49 U.S.C. § 40122(g)—the FAA 

statute that expressly states that “sections 3308–3320” 

“relat[e] to veterans’ preference”—because the VEOA does 

not apply to the FAA. 

The government similarly argues that § 3308 is not a 

statute relating to veterans’ preference because the text of 

the statute does not specifically refer to veterans or veterans’ preference, and because § 2302(e)(1) does not list 

§ 3308 as a “veterans’ preference requirement.” As discussed above with respect to § 3302, we are not persuaded 

by these arguments.

We hold that § 3308 is a statute relating to veterans’ 

preference and reverse the Board’s holding to the contrary. Section 3308 has its roots in the VPA. While the 

Board characterizes the relationship between § 3308 and 

§ 5 of the VPA as “a mere general similarity,” 122 

M.S.P.R. at 282, the provisions are almost identical. The 

fact that the language of § 3308 is nearly identical to a 

provision within the VPA is strong evidence that Congress 
12 DEAN v. LABOR

understood § 3308 as relating to veterans’ preference. 

Moreover, Congress explicitly stated that § 3308 relates to 

veterans’ preference. 49 U.S.C. § 40122(g). We see no 

reason to ignore Congress’s clear statement that § 3308 

“relat[es] to veterans’ preference” just because the VEOA 

does not apply to the FAA.

II. 

Now that we have satisfied ourselves as to the Board’s 

jurisdiction over Mr. Dean’s complaint, we next consider 

Mr. Dean’s assertion that the Board improperly closed the 

record and failed to consider his written submissions. 

Following Mr. Dean’s petition for review, the Board held 

that the administrative judge had improperly closed the 

record without warning and considered all of Mr. Dean’s 

written submissions. We therefore find this complaint to 

be moot. 

Mr. Dean next argues that he should have been 

granted an oral hearing before the Board. We review the 

Board’s determination that no hearing was required for 

an abuse of discretion. 5 U.S.C. § 7703(c). Section 

3330a(d)(1) authorizes the Board to prescribe procedures 

governing appeals to the Board under the VEOA. The 

Board permits decisions to be made on the merits of a 

VEOA appeal without a hearing when there is no dispute 

of material fact and one party must prevail as a matter of 

law. See Waters-Lindo v. Dep’t of Def., 112 M.S.P.R. 1, ¶ 5 

(2009). The Board did not abuse its discretion in concluding that this case presents no disputes of material fact 

and that, as such, Mr. Dean was not entitled to a hearing. 

III.

Turning to the merits of Mr. Dean’s appeal, we consider whether placement of the “Recent Graduate” Wage 

and Hour Specialist position into the excepted service as 

part of the Recent Graduates Program violated § 3302(1). 

Mr. Dean appears to argue that the Recent Graduates 
DEAN v. LABOR 13

Program is invalid to the extent it excludes certain veterans who are not recent graduates from applying to positions within the program. We disagree.

Under § 3302(1), the President may make “as nearly 

as conditions of good administration warrant, for necessary exceptions of positions from the competitive service.” 

Pursuant to this authority, President Obama created the 

Pathways Programs, including the Recent Graduates 

Program. Exec. Order No. 13,562, 75 Fed. Reg. 82,585. 

Section 7 of the Executive Order amended 5 C.F.R. 

§ 6.1(a) to provide: 

OPM may except positions from the competitive 

service when it determines that . . . recruitment 

from among students attending qualifying educational institutions or individuals who have recently completed qualifying educational programs can 

better be achieved by devising additional means 

for recruiting and assessing candidates that diverge from the processes generally applicable to 

the competitive service. 

Id. at 82,587. Section 7 also amended 5 C.F.R. § 6.2 to 

create Schedule D for the excepted service, which includes: 

Positions . . . for which the competitive service requirements make impracticable the adequate recruitment of sufficient numbers of . . . individuals 

who have recently completed qualifying educational programs. These positions . . . are temporarily placed in the excepted service to enable 

more effective recruitment from all segments of 

society by using means of recruiting and assessing 

candidates that diverge from the rules generally 

applicable to the competitive service.

Id. 
14 DEAN v. LABOR

In creating the Pathways Programs, the President 

stated that “conditions of good administration (specifically, the need to promote employment opportunities for 

students and recent graduates in the Federal workforce) 

make necessary an exception to the competitive hiring 

rules for certain positions in the Federal civil service,” 

citing the merit system principle set out in 5 U.S.C. 

§ 2301(b)(1) for the Federal Government “to achieve a 

work force from all segments of society.” Id. at 82,585. 

The President explained the benefits the Federal Government derives from a diverse workforce that includes 

recent graduates, as well as the barriers to hiring these 

same individuals. Id. 

Moreover, beginning in August of 2009, OPM conducted a review of the Federal Government’s ability to 

recruit and hire students and recent graduates, soliciting 

input from agencies, academic organizations, and the 

public. Excepted Service, Career and Career-Conditional 

Employment; and Pathways Programs, 76 Fed. Reg.

47,495, 47,496 (proposed Aug. 5, 2011). OPM drew several conclusions from this review. OPM found barriers to 

hiring students and recent graduates, observing that 

these individuals lack the experience needed to compete 

in the competitive hiring system. Id. at 47,497. OPM also 

concluded: 

By exposing students and recent graduates to jobs 

in the Federal civil service at the beginning of 

their careers, we will engage them at the outset of 

their work lives, before their career paths are fully 

established, inform them about the wide variety of 

interesting opportunities available in the Federal 

Government, and break through commonly held 

stereotypes about “government work.” 

Id. This review informed the President’s decision to issue 

Executive Order No. 13,562. Id. 
DEAN v. LABOR 15

The President delegated to OPM the authority to issue regulations implementing the Pathways Programs. 

Exec. Order No. 13,562, 75 Fed. Reg. at 82,585. OPM 

issued 5 C.F.R. § 213.102, defining “positions” that may 

be excepted under § 3302(1) to include “[t]hose that are 

intended to be removed temporarily from the competitive 

service to allow for targeted recruiting and hiring from 

among a particular class of persons.” 5 C.F.R.

§ 213.102(c)(2). In drafting this regulation, OPM noted: 

This clarification reflects the President’s (and several of his predecessors’) interpretation of 5 U.S.C. 

§ 3302(1) and will permit OPM . . . to continue its 

practice of allowing agencies to fill positions that 

would normally be in the competitive service 

through excepted service appointments in order to 

allow them to recruit and hire from among classes 

of individuals that are disadvantaged by competitive examining.

Excepted Service, Career and Career-Conditional Employment; and Pathways Programs, 76 Fed. Reg. at 

47,498. 

In light of the President’s and OPM’s thorough discussion of the barriers to hiring recent graduates into 

positions in the competitive service, the noted benefits 

recent graduates provide in the workforce, and the merit 

system principle in 5 U.S.C. § 2301(b)(1) for the Federal 

Government “to achieve a work force from all segments of 

society,” we conclude that the President acted within the 

authority Congress granted him in § 3302(1) to create the 

Recent Graduates Program and except positions from the 

competitive service to fulfill the goals of the program. We 

see no conflict between § 3302 and 5 C.F.R. § 213.102, 

OPM’s regulation permitting temporary exception of 

positions that would normally be in the competitive 

service to allow for targeting of a particular class of persons, in this case recent graduates. As the “Recent Grad-
16 DEAN v. LABOR

uate” Wage and Hour Specialist position was excepted 

from the competitive service pursuant to OPM’s regulations implementing the Recent Graduates Program, we 

also conclude that this position was properly excepted 

from the competitive service pursuant to § 3302(1).

IV.

We next consider whether placement of the “Recent 

Graduate” Wage and Hour Specialist position into the 

excepted service as part of the Recent Graduates Program 

violated § 3308. Section 3308 restricts the use of minimum educational requirements for an examination for the 

competitive service. This restriction also applies to the 

excepted service through § 3320, which provides that 

positions in the excepted service shall be filled “in the 

same manner and under the same conditions required for 

the competitive service by sections 3308–3318.” Congress 

delegated the responsibility for implementing § 3320 to 

OPM. See 5 U.S.C. § 1302(c). Accordingly, OPM has 

issued regulations setting forth procedures for applying 

veterans’ preference rights to the excepted service. See 5 

C.F.R. pt. 302. In particular, OPM issued 5 C.F.R. 

§ 302.202, which provides:

An agency shall not include a minimum educational requirement in qualification standards except for a scientific, technical, or professional 

position the duties of which the agency decides 

cannot be performed by a person who does not 

have a prescribed minimum education.

(emphasis added). 

We have considered how veterans’ preference provisions apply to the excepted service through § 3320 in 

three prior cases. In doing so, we have construed § 3320 

as requiring application of veterans’ preference procedures in excepted service hiring to the extent that it is 

administratively feasible to do so. See Jarrard v. Dep’t of 
DEAN v. LABOR 17

Justice, 669 F.3d 1320 (Fed. Cir. 2012); Gingery v. Dep’t of 

Def., 550 F.3d 1347 (Fed. Cir. 2008); Patterson, 424 F.3d 

1151. 

In Patterson, we considered application of 5 U.S.C. 

§ 3309 to the excepted service via § 3320. 424 F.3d 1151. 

Section 3309 entitles a preference-eligible veteran “who 

receives a passing grade in an examination to additional 

points above his earned rating.” A preference-eligible 

veteran alleged that his veterans’ preference rights under 

§ 3309 were violated by not adding additional points to 

his rating. Id. at 1154. The attorney position at issue, 

however, was in the excepted service, and not subject to 

examination. Id. at 1157–58. We concluded that “Congress has not spoken on the issue of how to apply the 

principles of veterans’ preference to positions within the 

excepted service that are not subject to examination,” and 

that OPM’s regulations were therefore entitled to deference under Chevron. Id. at 1158–59. OPM’s regulation 

required hiring agencies to “follow the principle of veterans’ preference as far as administratively feasible” for 

attorney positions in the excepted service. 5 C.F.R. 

§ 302.101(c). Because the attorney position was not 

subject to examination or numerical scores and ranking, 

the agency instead considered veteran status as a positive 

factor in reviewing applications. Patterson, 424 F.3d at 

1159. We concluded that 5 C.F.R. § 302.101(c) and the 

positive factor test were reasonable interpretations of how 

§§ 3309 and 3320 apply to attorney positions within the 

excepted service. Id. at 1159–60.

In Gingery, we considered application of 5 U.S.C. 

§ 3318 to the excepted service via § 3320. 550 F.3d 1347. 

Section 3318 requires that an appointing authority obtain 

OPM’s permission to pass over a preference eligible on a 

certificate, and notify the preference eligible of the proposed pass over, the reasons for the pass over, and his 

right to respond when the preference eligible has a compensable service-connected disability of 30% or more. The 
18 DEAN v. LABOR

preference-eligible veteran in Gingery had a compensable 

service-connected disability of 30% and sought an auditor 

position in the excepted service as part of the Federal 

Career Intern Program (“FCIP”). Id. at 1350. A category 

rating system was used to fill the auditor position, and 

applicants were selected from certificates. Id. In passing 

over Mr. Gingery, the agency followed 5 C.F.R. 

§ 302.401(b), which applied to the excepted service and 

only required the agency to record its reasons for passing 

over a preference-eligible veteran and furnish a copy to 

the veteran if requested. Id. The preference-eligible 

veteran therefore alleged that the pass-over procedures of 

§ 3318 were not followed when he was not selected for an 

auditor position. Id. We agreed with the veteran and 

concluded that, unlike Patterson, there was nothing to 

preclude application of § 3318 to the excepted service

because § 3318 “applies to selection from certificates, 

which are used in both the competitive and excepted 

services.” Id. at 1353. We therefore held 5 C.F.R. 

§ 302.401(b) invalid because it provided less protection 

than Congress guaranteed certain veterans in § 3318. Id. 

In Jarrard, we again considered application of § 3318 

to the excepted service through § 3320. 669 F.3d 1320. A 

preference-eligible veteran applied for attorney positions 

in the excepted service and alleged that the agencies did 

not follow the pass-over provisions of § 3318, instead just 

considering his veteran status as a “positive factor.” Id.

at 1321. We first determined that rating or other examination systems were barred for attorney positions. Id. at 

1325. We concluded that the pass-over provisions of 

§ 3318 were inconsistent with the bar on attorney ratings 

because § 3318 “requires the submission of a certificate 

that ranks applicants” and held that agencies were exempt from the procedures of § 3318 for attorney positions. 

Id. at 1325–26. 

With this background, we turn to how the restriction 

in § 3308 on minimum educational requirements for 
DEAN v. LABOR 19

examinations applies to hiring in the excepted service, 

which does not use examinations. We recognize that, 

under § 3320, § 3308’s prohibition of educational requirements for an examination for the competitive service 

applies to the excepted service “in the same manner and 

under the same conditions required for the competitive 

service.” Congress has not, however, addressed how 

§ 3308 applies to the excepted service when there is no 

examination. Thus, Congress left a gap in the statute and 

OPM’s regulations to fill this gap are entitled to deference 

under Chevron. As such, we must consider whether 

OPM’s regulations are based on a permissible construction of §§ 3308 and 3320. 

Consistent with § 3308, OPM’s regulations governing 

employment in the excepted service prohibit an agency 

from including “a minimum educational requirement in 

qualification standards, except for a scientific, technical, 

or professional position the duties of which the agency 

decides cannot be performed by a person who does not 

have a prescribed minimum education.” 5 C.F.R. 

§ 302.202 (emphasis added). This regulation applies to 

making an appointment to a specific position within the 

excepted service. Id. Notably, OPM’s regulations do not 

prohibit a minimum educational requirement as a program eligibility condition. 

The educational requirement at issue in this case is 

not a qualification standard. It relates to eligibility for a 

specific program—the Recent Graduates Program. Indeed, OPM explained the distinction between “qualification standards” and “eligibility” in its regulations 

implementing the Recent Graduates Program. First,

OPM issued a regulation entitled “Eligibility,” explaining 

that eligibility is limited to “individual[s] who obtained a 

qualifying associates, bachelors, master’s, professional, 

doctorate, vocational or technical degree or certificate 

from a qualifying educational institution, within the 

previous 2 years or other applicable period provided [in 
20 DEAN v. LABOR

subsection (b)].” 5 C.F.R. § 362.302(a). OPM also issued a 

regulation explaining the qualification standards an 

agency must apply when evaluating candidates for positions in the Recent Graduates Program: “Qualifications. 

An agency must evaluate candidates using OPM Qualification Standards for the occupation and the grade level of 

the position being filled.” Id. § 362.303(d). Thus, because 

the “Recent Graduate” Wage and Hour Specialist position 

was placed in the excepted service pursuant to the authority Congress granted to the President in § 3302, the 

eligibility criteria of 5 C.F.R. § 362.302 and the qualification standard of 5 C.F.R. § 362.303(d) apply. 

Here, we conclude that OPM’s regulations implementing §§ 3308 and 3320 are permissible and reasonable. For 

excepted service positions not subject to examinations, 

OPM’s regulations restrict the use of minimum educational requirements in qualification standards for positions. 5 C.F.R. § 302.202. Under the Recent Graduates 

Program, OPM’s implementing regulations instruct 

agencies to follow OPM Qualification Standards for the 

occupation and grade level of each position while restricting only the eligibility for the program to recent graduates. We find no conflict between OPM’s regulations and 

Congress’s intent expressed in §§ 3308 and 3320.

Mr. Dean appears to argue that the inclusion of any

minimum educational requirement, including in the 

Recent Graduates Program eligibility criteria, for the 

“Recent Graduate” Wage and Hour Specialist position is a

violation of §§ 3308 and 3320. While Mr. Dean’s position 

may represent a permissible interpretation of these 

statutory provisions, Congress has not mandated such a

result and we cannot substitute our judgment for OPM’s 

reasonable regulations implementing these statutes. The 

agency’s “interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous.” United 

States v. Eurodif S.A., 555 U.S. 305, 316 (2009).
DEAN v. LABOR 21

CONCLUSION

For the foregoing reasons, we hold that the Board had 

jurisdiction to consider violations of §§ 3302(1) and 3308 

pursuant to § 3330a of the VEOA because §§ 3302(1) and 

3308 are statutes relating to veterans’ preference. We 

affirm the Board’s determination that Mr. Dean’s veterans’ preference rights under §§ 3302(1) and 3308 were not 

violated. 

AFFIRMED

COSTS

No costs.