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Vassallo v. Department of Defense

United States Court of Appeals, Federal Circuit

August 14, 2015

ROSS VASSALLO, Petitioner
v.
DEPARTMENT OF DEFENSE, Respondent

Petition for review of the Merit Systems Protection. Board in No. PH-3330-13-0049-R-1.

ROSS VASSALLO, Easton, CT, Pro se.

ALBERT S. IAROSSI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.

Before PROST, Chief Judge, WALLACH and TARANTO, Circuit Judges.

OPINION

Page 1328

Wallach, Circuit Judge.

Petitioner Ross Vassallo appeals the decision of the Merit Systems Protection Board (" the Board" ) denying his request for corrective action. See Vassallo v. Dep't of Def., PH-3330-13-0049-R-1, 2015 M.S.P.B. 8, 122 M.S.P.R. 156 (M.S.P.B. Jan. 15, 2015) (Resp't's App. 50-55). Mr. Vassallo, a veteran, sought corrective action from the Board after he applied for a position at the Department of Defense (" DOD" ), and the Office of Personnel Management (" OPM" ) determined that the DOD was not required to afford him veterans employment preferences under the Veterans Employment Opportunities Act of 1998 (" VEOA" ). The central question in this appeal is whether OPM's regulation permissibly fills a gap in the governing statute. The Board found that it did. The court affirms.

Background

I. Legal Framework

" Federal agencies generally use two types of selection to fill vacancies: (1) the open 'competitive examination' process

Page 1329

and (2) the 'merit promotion' process." Joseph v. Fed. Trade Comm'n, 505 F.3d 1380, 1381 (Fed. Cir. 2007) (citation omitted). " 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 the agency who has 'status' in the competitive service." Id. at 1382 (citations omitted).

In 1998, Congress passed the VEOA to ensure that veterans receive due consideration when they apply for vacant positions available through the merit promotion process. See generally Veterans Employment Opportunities Act of 1998, Pub. L. No. 105-339, 112 Stat. 3182 (codified as amended in scattered sections of 2, 3, 5, 10, 28, 31, 38, and 49 U.S.C.). In relevant part, Congress provided veterans " may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures." 5 U.S.C. § 3304(f)(1) (2012). The statute does not define " agency." To fill this gap, Congress provided that " [OPM] shall prescribe regulations necessary for the administration of this subsection." Id. § 3304(f)(5).

OPM promulgated such regulations in Title 5 of the Code of Federal Regulations. The regulations parrot the statutory mandate, explaining that eligible veterans " may compete for vacancies under merit promotion when an agency accepts applications from individuals outside its own workforce" and, if selected, veterans " will be given career or career conditional appointments under § 315.611 of this chapter." 5 C.F.R. § 335.106 (2012). The regulations define " agency" as " an executive agency as defined in 5 U.S.C. [§ ] 105." 5 C.F.R. § 315.611(b). The statutory provision cited by the regulations defines " executive agency" as " an Executive department, a Government corporation, and an ...


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