United States Court of Appeals
for the Federal Circuit
__________________________
THOMAS G. JARRARD,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
___________________________
THOMAS G. JARRARD,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
2011-3050, -3051
__________________________
Petitions for review of the Merit Systems Protection
Board in case nos. SF3330100815-I-1 and SF3330100024-
I-1.
___________________________
Decided: January 13, 2012
___________________________
THOMAS G. JARRARD, Spokane, Washington, argued.
JARRARD v. JUSTICE 2
TARA K. HOGAN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, BRIAN M. SIMKIN,
Assistant Director, and JILL WEISSMAN, Assistant General
Counsel. Of counsel was ANUJ VOHRA, Trial Attorney.
__________________________
Before RADER, Chief Judge, DYK and REYNA, Circuit
Judges.
DYK, Circuit Judge.
In these consolidated appeals, attorney Thomas G.
Jarrard (“Jarrard”) petitions for review of two decisions of
the Merit Systems Protection Board (“Board”) denying his
request for corrective action under the Veterans Employ-
ment Opportunities Act of 1998 (“VEOA”). See Jarrard v.
Soc. Sec. Admin. (“Board SSA Decision”), 2010 M.S.P.B.
207 (Oct. 28, 2010); Jarrard v. Dep’t of Justice (“Board
DOJ Decision”), No. SF-3330-10-0815-I-1, 2010 M.S.P.B.
LEXIS 6400 (Nov. 3, 2010). We affirm.
BACKGROUND
Jarrard is a veteran with a service-connected disabil-
ity rated at eighty percent, which makes him a “prefer-
ence eligible” veteran under 5 U.S.C. § 2108(3)(C). He
applied for attorney positions at the Social Security
Administration (“SSA”) in 2009 and at the U.S. Attorney’s
Office for the Eastern District of Washington (“DOJ”) in
2009 or 2010, informing both agencies that he was a
preference eligible veteran. Both agencies selected other
applicants, at least one of whom was a non-preference
eligible.
3 JARRARD v. JUSTICE
Jarrard filed complaints with the Department of La-
bor under VEOA, which allows preference eligible veter-
ans to challenge an agency’s application of the veterans’
preference requirements. See id. § 3330a(a)(1)(A).
Jarrard complained that 5 U.S.C. § 3320 1 required that
the agencies follow the veterans’ passover provisions of 5
U.S.C. § 3318 in excepted service attorney hiring. Section
3318, which in terms applies only to the competitive
service, requires agencies to “file written reasons” and to
receive permission from the Office of Personnel Manage-
ment (“OPM”) if they “pass over a preference eligible” who
is among “the highest three eligibles available for ap-
pointment” on a certificate furnished by OPM under
section 3317(a). There is no dispute that these procedures
were not followed by SSA and DOJ in this case.
The SSA concluded that section 3320 did not require
the application of section 3318 to attorney positions
because those positions are exempt from passover proce-
dures under 5 C.F.R. § 302.101(c), and that Jarrard’s
preference eligible status was appropriately considered as
only a “positive factor.” Resp’t Br. SA16. The DOJ simi-
larly stated that “Mr. Jarrard was not the most qualified
person for the position, considering all factors, including
veterans’ preference eligibility.” Id. at SA15. After the
Department of Labor found no violation, Jarrard appealed
both decisions to the Board.
An initial administrative judge decision on Jarrard’s
claim against the SSA agreed with the SSA that section
3320 did not require the application of section 3318 to
1 Section 3320 provides that agencies “shall select
for appointment to each vacancy in the excepted service in
the executive branch . . . from the qualified applicants in
the same manner and under the same conditions required
for the competitive service by sections 3308-3318 of this
title.”
JARRARD v. JUSTICE 4
attorney positions and dismissed the appeal for failure to
state a claim. Jarrard v. Soc. Sec. Admin., No. SF-3330-
10-0024-I-1, slip op. at 12 (Feb. 1, 2010). The full Board
vacated this decision and denied Jarrard’s SSA appeal on
the merits. Board SSA Decision, 2010 M.S.P.B. 207, ¶ 1.
The Board agreed with the SSA that attorneys are exempt
from any examination or rating requirements. Id. ¶¶ 12,
19. The Board stated that section 3320 did not require
application of the 3318 passover procedures because
“application of section 3318 is conditioned on the prefer-
ence eligible being ‘on a certificate.’” Board SSA Decision,
2010 M.S.P.B. 207, ¶¶ 21. The Board held that “the
agency’s decision to treat the appellant’s veterans’ prefer-
ence status as a positive factor in evaluating his applica-
tion is consistent with OPM’s requirement that the
agency ‘follow the principle of veteran preference as far as
administratively feasible.’” Id. ¶ 27 (quoting 5 C.F.R.
§ 302.101(c)).
The initial administrative judge decision on Jarrard’s
appeal against the DOJ was issued the following week,
and it followed the full Board decision in the SSA appeal
and denied Jarrard’s claim on the merits. Board DOJ
Decision, No. SF-3330-10-0815-I-1, slip op. at 9-17.
Jarrard timely appealed both decisions to this court, and
we consolidated his appeals on March 31, 2011. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
We must affirm the Board’s decisions unless they
were “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review legal questions de
novo. Chambers v. Dep’t of Interior, 602 F.3d 1370, 1375
(Fed. Cir. 2010).
5 JARRARD v. JUSTICE
DISCUSSION
Federal agencies generally hire employees through ei-
ther the “competitive service,” which generally has spe-
cific hiring requirements and examinations, or the
“excepted service,” which involves more flexible hiring
procedures. See 5 U.S.C. §§ 2102-2103, 3301-3305, 3307-
3308; Gingery v. Dep’t of Defense, 550 F.3d 1347, 1349
(Fed. Cir. 2008). This case involves attorney hiring for
the excepted service. See 5 C.F.R. § 213.3102(d) (placing
attorneys within the excepted service). Within the ex-
cepted service, OPM has exempted certain positions from
the normal appointments process, including attorney
positions, and confidential or policy-making positions. 5
C.F.R. § 302.101(c).
When agencies hire for the competitive service, the
Veterans Preference Act (“VPA”) requires them to give
advantages to certain veterans and their families, who
are referred to as “preference eligibles.” 5 U.S.C.
§ 2108(3) (defining “preference eligible”); id. §§ 3309-3318
(describing advantages in competitive service hiring). As
a general matter, these veterans’ preference procedures
also apply to hiring in the excepted service through 5
U.S.C. § 3320, which provides that the excepted service
shall be filled “in the same manner and under the same
conditions required for the competitive service by sections
3308-3318.” The legislative history of section 3320 sheds
little light on the meaning of this provision. 2 Within the
2 The revision notes in the U.S. Code from this sec-
tion’s 1966 enactment state that it “continues, and does
not in any way change, the requirements in former sec-
tion 858 relative to the selection of applicants for posi-
tions in the excepted service.” 5 U.S.C. § 3320 (2006)
revision notes; see Pub. L. No. 89-554, § 3320, 80 Stat.
378, 422 (1966). Former section 858, which was enacted
with the VPA in 1944, stated that “[i]n the unclassified
JARRARD v. JUSTICE 6
excepted service category, certain positions (including
attorney positions) are further exempted from the usual
appointment procedures by 5 C.F.R. § 302.101(c), but
these regulations require veterans’ preference to be
followed “as far as administratively feasible.” As we
confirmed in Patterson v. Department of Interior, 424 F.3d
1151 (Fed. Cir. 2005), where positions are entirely exempt
from the usual appointment process, it is more likely that
the detailed requirements of the VPA will prove to be
infeasible.
In two prior cases we have considered the meaning of
section 3320, and we have essentially construed that
provision as requiring that VPA procedures be applied to
excepted service hiring to the extent that it is administra-
tively feasible to do so. That is, we adopted the same
construction of section 3320 that OPM adopted in its
regulations with respect to attorneys and other positions
exempt from the usual appointment procedures. See 5
C.F.R. § 302.101(c) (stating that for exempted positions,
“each agency shall follow the principle of veteran prefer-
ence as far as administratively feasible”).
In Patterson, the veteran applicant for an attorney po-
sition challenged the agency’s failure to apply section
3309, which requires “[a] preference eligible who receives
a passing grade in an examination” to receive “additional
points above his earned rating.” 424 F.3d at 1154 (quot-
ing 5 U.S.C. § 3309). We determined that “Congress has
. . . civil service . . . [the] appointing officer . . . shall make
selection from the qualified applicants in accordance with
the provisions of this chapter.” 5 U.S.C. § 858 (1964); see
VPA, Pub. L. No. 78-359, § 9, 58 Stat. 387, 389-90 (1944).
The 1944 Senate committee report simply stated that this
section “provides for the application of the provisions of
the act to positions and employment in the unclassified
service.” S. Rep. No. 78-907, at 3 (1944).
7 JARRARD v. JUSTICE
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 are thus entitled to Chevron deference.
Id. at 1158-59. We concluded that OPM’s exemption of
attorneys from excepted service veterans’ preference
hiring procedures at 5 C.F.R. § 302.101(c)(9) is “reason-
able and consistent with the VPA” because “agencies do
not use numerical scores in assessing applicants for
[attorney] positions.” 424 F.3d at 1159. Instead, OPM
agreed that the agency “must consider veteran status as a
‘positive factor’ in reviewing applications,” which we
found to “represent[] a reasonable balance between the
goals of the VPA and the flexible hiring standards em-
ployed by the excepted service for filling attorney vacan-
cies.” Id.
In Gingery, the preference-eligible veteran was apply-
ing for an auditor position within the Federal Career
Intern Program (“FCIP”), and he challenged the agency’s
failure to apply section 3318 pursuant to section 3320.
550 F.3d at 1350. FCIP auditors are in the excepted
service, but unlike attorneys, they are not exempted from
OPM’s hiring requirements for the excepted service under
5 C.F.R. § 302.101 and are selected from certificates. See
550 F.3d at 1350. The agency applied OPM regulation 5
C.F.R. § 302.401(b), which required an agency passing
over a preference-eligible candidate only to “record its
reasons” and “furnish a copy” to the candidate if re-
quested. 550 F.3d at 1350. We held this regulation
invalid as inconsistent with the more stringent require-
ments of section 3318. 550 F.3d at 1354. We noted that
unlike section 3309, at issue in Patterson, which required
an examination, section 3318 did not. While section 3318
required hiring from a certificate, the auditor position was
filled from a certificate, so nothing “would preclude appli-
JARRARD v. JUSTICE 8
cation of § 3318 to the excepted service under § 3320.”
550 F.3d at 1353.
This case presents the question whether it is adminis-
tratively feasible to apply the provisions of section 3318 to
attorney hiring in the excepted service. The government
contends that it is not feasible because federal statutes
bar agencies from rating attorneys in government hiring.
We first consider the statutes governing attorney hiring,
and then consider whether the existence of these provi-
sions renders impractical the application of the 3318
passover procedures to attorney hiring.
I
For many years, the procedures for government attor-
ney hiring have been limited by federal statute. The
background of this provision is important in understand-
ing its scope. In 1939, President Roosevelt appointed a
committee to make recommendations on how civil service
procedures should apply to attorneys. Exec. Order No.
8044, 4 Fed. Reg. 497 (Jan. 31, 1939). The committee
disagreed on the best approach. A few members proposed
“Plan B,” under which attorney applicants would be
ranked based on the results of an examination, like other
civil service applicants. See Veterans Preference Act (5
U.S.C. §§ 2108, 3309-3320)—Hiring Procedures for Attor-
neys—Excepted Service—Preference Hiring of Eligible
Veterans, 3 Op. O.L.C. 140, 143 (1979) (“1979 OLC
Memo”) (citing H.R. Doc. No. 77-118 (1941)). Roosevelt
instead selected “Plan A,” which did not involve numerical
rankings, and in 1941 he created the Board of Legal
Examiners within the Civil Service Commission (the
predecessor to OPM) to develop examinations for attorney
applicants and “a register or registers of eligibles from
which attorney positions in the classified service shall be
filled.” Exec. Order No. 8743, 6 Fed. Reg. 2117, 2117
9 JARRARD v. JUSTICE
(Apr. 23, 1941), reprinted as amended in 5 U.S.C. § 3301
notes. Congress was dissatisfied with the concept, and
the Board of Legal Examiners was short-lived.
Congress first refused appropriations to the Board of
Legal Examiners in the Independent Offices Appropria-
tion Act of 1944, stating that “no part of any appropria-
tion in this Act shall be available for the salaries and
expenses of the Board of Legal Examiners.” Pub. L. No.
78-90, 57 Stat. 169, 173 (1943). Nearly identical restric-
tions have continued to this day. See, e.g., Consolidated
Appropriations Act, 2010, Pub. L. No. 111-117, § 516, 123
Stat. 3034, 3195 (2009) (“[N]o part of this appropriation
shall be available for salaries and expenses of the Legal
Examining Unit of the Office of Personnel Management
. . . or any successor unit of like purpose . . . .”); Continu-
ing Appropriations Act, 2011, Pub. L. No. 111-242, § 101,
124 Stat. 2607, 2607 (2010) (continuing the appropria-
tions of the Consolidated Appropriations Act, 2010, unless
“otherwise specifically provided for,” and making no
separate appropriation for OPM or attorney hiring). The
Senate floor debate on the 1944 appropriations restriction
made clear that the purpose of this amendment was to
“prohibit[] from now on any civil-service examination of
lawyers” because “the idea of the Civil Service Commis-
sion reporting on lawyers and their ability and fairness
and their relative qualifications . . . is something that
cannot be done.” 90 Cong. Rec. 2659-60 (1944). This
restriction was passed despite its effects on the veterans’
preference requirements; indeed, Senator Burton opposed
the bill specifically because it would “mak[e] impossible
the application to [lawyers] of the veterans’ preference
provisions.” Id. at 2661.
In 1977, the Civil Service Commission determined
that the DOJ’s attorney hiring did not satisfy the VPA’s
requirements and proposed that a “numerical rating
JARRARD v. JUSTICE 10
system” be used for attorney hiring. See Veterans Prefer-
ence Act (5 U.S.C. §§ 2108, 3309-3320)—Application to
Attorney Positions, 2 Op. O.L.C. 179, 179 (1978). The
Office of Legal Counsel (“OLC”) wrote a memorandum in
1978 to the Assistant Attorney General to explain why
“the Commission does not have such authority.” Id. The
memorandum noted that “[t]he Commission’s proposed
rating system constitutes an attorney selection procedure
because attorneys would be selected on the basis of their
ratings.” Id. at 181. In 1979, OLC wrote a more detailed
memorandum to explain the relevant history to OPM
(which had been created from the Civil Service Commis-
sion in 1978). 1979 OLC Memo. The OLC noted that the
short-lived Board of Legal Examiners examined attorneys
and reported “descriptive ratings” (such as “Excellent” or
“Good”) on the register from which attorney positions had
to be filled, but that even the Board of Legal Examiners
eschewed numerical rankings on the register. Id. at 144.
Congress clearly rejected any assessment of the “relative
qualifications” of lawyers in its appropriations restric-
tions. Id. at 145. Thus, as OLC concluded, “OPM is
barred by its appropriation legislation from imposing a
rating or other examination system on the hiring of
attorneys within the executive branch.” Id. at 140. While
we are not bound by the OLC interpretation of the stat-
ute, we think it is correct and adopt it.
II
This leads to the second question: whether a bar on
attorney examinations and ratings makes it not adminis-
tratively feasible to apply the passover provisions of
section 3318 to attorney hiring. OPM, which is charged
with implementing the provisions of section 3320 by
11 JARRARD v. JUSTICE
virtue of 5 U.S.C. § 1302(c), 3 has concluded that the
passover provisions cannot be applied to attorney hiring.
Shortly after the OLC concluded that OPM was barred
from rating or examining attorneys, OPM issued this final
rule to amend 5 C.F.R. § 302.101(c):
The Department of Justice has now ruled that the
statutory restriction [in the appropriations acts]
also prohibits [OPM] from prescribing use of a
numerical rating system in the selection of attor-
neys. To implement this ruling, the regulations
governing employment in the excepted service are
amended to exempt attorney positions from the
procedural requirements.
Employment in the Excepted Service, 44 Fed. Reg. 66,573,
66,573 (Nov. 20, 1979). Thus, 5 C.F.R. § 302.101(c)(9)
lists “[a]ttorney positions” as a class of “[p]ositions exempt
from appointment procedures” for the excepted service,
for which agencies only need to “follow the principle of
veteran preference as far as administratively feasible.”
A bar on examinations alone would not make applica-
tion of the passover provisions impractical: although in
Patterson we held that examinations were a necessary
predicate with respect to the section 3309 procedures, 424
F.3d at 1158, we reached a different result in Gingery
with respect to section 3318, 550 F.3d at 1353. In Gin-
gery, we held that the passover provisions must be ap-
plied to FCIP auditor hiring, finding that the application
of section 3318 was not infeasible despite the absence of
3 Section 1302(c) provides: “The Office [of Personnel
Management] shall prescribe regulations for the admini-
stration of the provisions of this title that implement the
Congressional policy that preference shall be given to
preference eligibles in certification for appointment, and
in appointment . . . in the excepted service in Executive
agencies . . . .”
JARRARD v. JUSTICE 12
examinations for auditor positions. Id. But the appro-
priations riders not only bar attorney examinations; they
also bar attorney ratings. We think that this feature is
indeed inconsistent with the passover provisions because
on its face, section 3318 requires the submission of a
certificate that ranks applicants, and “passing over” a
preference eligible requires that he initially be among the
“highest three eligibles . . . on the certificate furnished” by
OPM. In contrast, there was no congressional bar with
respect to ranking for the auditor position at issue in
Gingery, and the applicant in Gingery was in fact ranked
under “a category rating system,” which we concluded
made it possible to apply the statutory passover provi-
sions. 550 F.3d at 1350, 1353.
In view of the statutory provision barring ranking of
attorneys, which has been in place since 1944, it is not
possible for OPM to provide a certificate of attorney
applicants that is a predicate to the passover provisions of
section 3318. Therefore, the Board did not err in conclud-
ing that the agencies were exempt from the procedures of
3318 and were not required to file written reasons with
OPM and seek OPM’s permission before selecting candi-
dates other than Jarrard.
AFFIRMED
COSTS
No costs.