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DEAN
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DEAN
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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 positions 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 qualificationswhich did not include a minimum
educational requirementand 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. 3335.
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-
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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 Boards 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. Appellees
Br. 14; see VEOA 6, 112 Stat. 3182, 318788 (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
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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. AlvarezMachain,
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 Congresss 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 3330ajust as it listed the
veterans preference requirements for the purpose of
2302but it did not do so. The governments attempt to
limit the scope of 3330a to the veterans preference
requirements of 2302 is inconsistent with broader
language used by Congress in 3330a.
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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.
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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 Presidents (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 Presidents and OPMs 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,
OPMs 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-
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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 Boards determination that Mr. Deans veterans preference rights under 3302(1) and 3308 were not
violated.
AFFIRMED
COSTS
No costs.