UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

87 M.S.P.R. 98 

ADAM T. RAMSEY, 

Appellant, 

v. 

OFFICE OF PERSONNEL 

MANAGEMENT, 

Agency. 

DOCKET NUMBER 

CB-1205-99-0065-U-1 

DATE: October 10, 2000 

Adam T. Ramsey, Lorton, Virginia, pro se. 

Raymond Limon, Washington, D.C., for the agency. 

BEFORE 

Beth S. Slavet, Acting Chairman 

Susanne T. Marshall, Member 

OPINION AND ORDER 

¶1 This case is before the Board on the petitioner's request for review of 

regulations promulgated by the Office of Personnel Management (OPM) to 

implement the staffing provisions of the Veterans Employment Opportunities Act 

(VEOA) of 1998. See Sec. 2 of the Veterans Employment Opportunities Act of 

1998, Pub. L. No. 105-339, 112 Stat. 3182, amending 5 U.S.C. § 3304(f). The 

petitioner's fundamental argument is that OPM regulations at 5 C.F.R. 

§§ 213.3201(a), 213.3202(n) (1999) and 335.1061

 conflict with the purpose of 5 

 

1

 In his first submission, the petitioner requested review of 5 C.F.R. § Parts 213 and 

214. RF, Tab 1. In his response to OPM's Motion to Dismiss, the petitioner has not 
2

U.S.C. § 3304(f) and require employees to commit prohibited personnel practices. 

Request File (RF), Tabs 1 and 6. For the reasons set forth below, we DENY the 

petitioner's request to declare these regulations invalid. 

BACKGROUND 

¶2 In enacting VEOA, Congress provided for a special appointing authority for 

preference eligibles or veterans with at least three years of active service, thus 

allowing them to compete for vacant positions under merit promotion procedures2

if the hiring agency accepts applications from individuals outside its own 

workforce.3

 Sec. 2, Pub. L. 105-339. OPM promulgated regulations to 

implement the staffing provisions of VEOA, setting forth special selection 

procedures for certain veterans under merit promotion procedures and creating a 

Schedule B, excepted appointing authority under 5 C.F.R. § Part 213, to permit 

agencies to place these individuals. 5 C.F.R. § 335.106 and 5 C.F.R. 

§ 213.3202(n)(1999). 

¶3 In legislation enacted after the petitioner filed his request, Congress amended 

the VEOA to clarify that an eligible veteran who competes and is selected under 

the agency's merit promotion procedures "shall receive a career or careerconditional appointment, as appropriate." See Sec. 511 (c) of the Veterans 

Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1545. 

The amendment thus eliminated the original VEOA provision under which OPM 

created the Schedule B appointing authority to permit the noncompetitive 

 

disagreed with OPM's conclusion that he was challenging sections 213.3202(n) (1999) 

and 335.106. RF, Tab 6; see also RF, Tab 5. 

2

 See 5 C.F.R. § 335.103, Agency Promotion Programs, setting forth provisions of 

merit promotion plans, including the requirements that actions under a promotion plan 

should be based solely on job-related criteria and that candidates, in order to be eligible 

for promotion or placement, must meet the minimum standards prescribed by OPM. 

3

 Agencies have discretion to open vacancies to the public and to accept applications 

from individuals outside their own workforce. See 5 C.F.R. § 302.102(a) and 5 C.F.R. 

§ 330.101 et seq. 
3

appointment of veterans. See H.R. 106-470, 145 Cong. Rec. H11997 (daily ed. 

Nov. 16, 1999); 5 U.S.C. § 3304(f)(2). OPM has revised its original 

implementing regulation to announce that, after November 30, 1999, no new 

appointment could be made under that authority. 65 Fed. Reg. 14,431 (Mar 17, 

2000); 5 C.F.R. § 212.3202(n) (1999). OPM added a new regulation, 5 C.F.R. 

§ 315.611, to address the career or career-conditional appointment of certain 

veterans. 65 Fed. Reg. 14,432. 

¶4 The petitioner requests Board review on the basis that the "regulations create a 

hiring authority which imposes 'basic qualification standards'" or "'artificial 

barriers' to veteran [sic] employment in the Federal Government." RF, Tab 1 at 

1. 

ANALYSIS 

¶5 The Board has original jurisdiction to review rules and regulations issued by 

OPM. 5 U.S.C. § 1204(f). In exercising that jurisdiction, the Board is authorized 

to declare OPM rules and regulations invalid if it determines that their 

implementation would require an employee to commit prohibited personnel 

practices, as defined in 5 U.S.C. § 2302(b). Id. See, e.g., Prewitt v. Merit 

Systems Protection Board, 133 F.3d 885, 887 (1998). 

¶6 With his petition for regulation review, the petitioner attached a copy of 

OPM's interim regulations implementing VEOA, highlighting in yellow OPM's 

reference to its creation of Schedule B appointing authority and its explanation 

that Schedule B "positions are subject to basic qualification standards." RF, Tab 

1. As noted above, OPM revised its regulations, eliminating the Schedule B 

appointing authority in order to conform to the VEOA amendments which 

provided that individuals appointed under merit promotion procedures were to 

receive appointments in the competitive service. Those amendments were 

retroactive to October 31, 1998, the effective date of the VEOA. See Sec. 

511(c)(1) of the Veterans Millennium Health Care and Benefits Act. Thus, to the 

extent that the petitioner is challenging the appropriateness of a Schedule B 
4

appointing authority in 5 C.F.R. § 213.3202(n) (1999), we find that his request is 

moot in light of OPM's revisions which canceled that authority. 

¶7 To the extent, however, that the petitioner can show that, while the regulation 

was in effect, an agency invalidly implemented 5 C.F.R. §§ 213.3201(a) and 

213.3202(n) (1999) by requiring any employee to commit a personnel practice 

prohibited by 5 U.S.C. § 2302(b), the Board could require the agency to correct 

the invalid implementation. 5 U.S.C. § 1204(f)(4)(B). Therefore we find that the 

petitioner’s request for review of these regulations is not moot with respect to his 

request that the Board declare the regulations invalidly implemented. However, 

for the reasons set forth below, we reject the petitioner’s arguments that 

minimum qualification standards should not be applied to VEOA appointments. 

¶8 The petitioner objects to OPM's application of minimum qualification 

standards to VEOA appointments and claims that OPM's regulations require an 

agency to commit a prohibited personnel practice under 5 U.S.C. § 2302(b)(4)4

 by 

obstructing a veteran's right to compete for employment. RF, Tab 6 at 5. He 

argues that the VEOA entitles a veteran to be included on the certificate of 

eligibility for a position without evaluation of his application by personnel 

specialists. RF, Tab 1 at 3. He contends that a veteran's application should not 

be subject to basic qualification standards, which he contends are "barriers" 

which prevent a veteran from competing with other applicants. The petitioner 

specifically complains that specialized experience requirements and time-in-grade 

requirements "narrow the scope of the Act so as to make it ineffectual." Id. at 

paragraph 17. Indicating that he has applied for "upwards of a hundred jobs 

under the provisions of the Act" but has been told that he "can't compete for the 

positions," the petitioner claims that personnel specialists have imposed 

 

4

 This subsection prohibits any employee who has authority to take, direct others to 

take, recommend, or approve any personnel action from “deceiv[ing] or willfully 

obstruct[ing] any person with respect to such person’s right to compete for 

employment.” 5 U.S.C. § 2302(b)(4). 
5

"artificial barriers to veterans' competition, such as specialized experience 

requirements and time in grade [sic] requirements." Id. at paragraphs 17 - 19. He 

also complains that, despite his attaching a copy of OPM's explanation of the 

VEOA provisions, "personnel specialists refuse to certify [him] as eligible to 

compete." Id. at paragraph 19. The petitioner thus argues that, under the VEOA 

and given his status as a veteran, merely applying for a position qualifies him for 

placement on the certification/eligible list and entitles him to evaluation by the 

hiring official or panel. In support of his argument that failure to meet minimum 

qualification requirements should not exclude a veteran as unqualified for a 

position, the petitioner cites to language in "senate committee report 105-30". 

RF, Tab 1 at 4. 

¶9 The final version of VEOA, however, does not include the Senate Report 

language upon which the petitioner relies. The plain language of the statute only 

prohibits an agency from denying a preference eligible or veteran the opportunity 

to compete; it does not provide that veterans will be considered eligible for 

positions for which they are not qualified. Because the VEOA is not a 

noncompetitive-entry authority, like the Veterans Readjustment Act, it does not 

exempt veterans from the eligibility criteria such as time-in-grade restrictions that 

would be applicable to all candidates. 5 U.S.C. § 3304(f). In enacting VEOA, 

Congress specified that the agencies would apply merit system principles in 

accepting applications from individuals outside its own workforce. Sec. 2, Pub. 

L. 105-339. Merit system principles require that recruitment of Federal 

employees should be from "qualified individuals." 5 U.S.C. § 2301(b)(1). 

Because the VEOA did not exempt covered veterans from meeting minimum 

qualification standards in order to compete for vacant positions under merit 

promotion procedures, we cannot find that an agency committed a personnel 

practice prohibited by 5 U.S.C. § 2302(b)(4) by implementing 5 C.F.R. 

§§ 213.3201(a) and 213.3202(n) (1999) to exclude a covered veteran who did not 

meet the minimum qualification standards from consideration for such positions. 
6

¶10 Further, to the extent that the petitioner challenges OPM’s regulation at 5 

C.F.R. § 335.106, that regulation merely repeats, almost verbatim, the statutory 

language of 5 U.S.C. § 3304(f)(1). Because Congress did not authorize the Board 

in 5 U.S.C. § 1204(f) to review statutory provisions, the petitioner's challenge to 

a rule or regulation that merely repeats the statutory language must fail. See, e.g., 

Pavlopoulos v. Office of Personnel Management, 58 M.S.P.R. 620, 624 (1993). 

¶11 Insofar as the petitioner is arguing that OPM's regulations implementing 

VEOA will result in an employee committing a prohibited personnel practice 

under 5 U.S.C. § 2302(b)(11), that is, a violation of veterans' preference 

requirements, we find that Congress specifically excluded the provisions under 5 

U.S.C. § 3304(f) from veterans' preference requirements. Applying the maxim 

expressio unius est exclusio alterius,

5

 since section 3304 is not included as a 

“veterans' preference requirement,” at 5 U.S.C. § 2302(e)(1), we find that the 

regulations implementing 5 U.S.C. § 3304(f) cannot be a basis for committing a 

prohibited personnel practice under 5 U.S.C. § 2302(b)(11). In addition, 5 U.S.C. 

§ 3304(f)(3) provides that subsection (f) shall not be construed to confer an 

entitlement to veterans' preference that is not otherwise required by law. 

¶12 For these reasons, the petitioner has not shown that the OPM regulations at 

issue obstruct a veteran's right to compete or otherwise cause an employee to 

commit a prohibited personnel practice. Consequently, we DENY the petitioner’s 

request to declare these regulations invalid. 

ORDER 

We DENY the petitioner's request that we review OPM's regulations at 5 

C.F.R. §§ 213.3201(a), 213.3202(n) (1999), and 335.106. This is the final order 

of the Merit Systems Protection Board in this petition. 5 C.F.R. § 1203.21. 

 

5

 This maxim means that "to express or include one thing implies the exclusion of the 

other or of the alternative." Black's Law Dictionary, 7th Edition (1999). 
7

NOTICE TO THE PETITIONER REGARDING 

YOUR FURTHER REVIEW RIGHTS 

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 your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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). You may read 

this law as well as review other related material at our web site, www.mspb.gov. 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

Robert E. Taylor 

Clerk of the Board