Vassallo v. Department of Defense
2015 U.S. App. LEXIS 14259
| Fed. Cir. | 2015Background
- Petitioner Ross Vassallo, a DCMA (a DOD sub‑agency) employee, applied for a Lead Interdisciplinary Engineer vacancy and his application was initially rejected for missing forms (later found to have been submitted).
- DCMA’s vacancy announcement limited applicants to current DCMA employees or certain DOD workforce members outside Military Components. Vassallo claimed he was improperly denied opportunity to compete under the Veterans Employment Opportunities Act (VEOA).
- VEOA (5 U.S.C. § 3304(f)(1)) requires that veterans not be denied the opportunity to compete for vacancies when “the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.” The statute does not define “agency” and directs OPM to promulgate implementing regulations.
- OPM’s regulation defines “agency” for this purpose as an “executive agency” as defined in 5 U.S.C. § 105 (i.e., Executive departments such as DOD, not their subcomponents). 5 C.F.R. § 315.611(b).
- The MSPB denied corrective action, concluding that “agency” meant the DOD (the parent executive agency) and that DCMA’s announcement did not accept applications from outside the DOD workforce. The Board deferred to OPM’s regulatory definition.
- The Federal Circuit affirmed, holding the statute ambiguous on the meaning of “agency” and upholding OPM’s regulation under Chevron as a permissible gap‑filling construction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “agency” in 5 U.S.C. § 3304(f)(1) unambiguously refers to the subcomponent (DCMA) or to the executive agency (DOD) | Vassallo: “Agency” should be read to mean the entity making the announcement (DCMA), so VEOA applies where a subagency invites outside applicants | Gov/OPM: The statute’s use of “agency” refers to the Executive Agency (as defined in 5 U.S.C. § 105), i.e., DOD, not subcomponents | Court: The statute is ambiguous; not unambiguously referring to subcomponents, so Chevron step two applies |
| Whether OPM permissibly filled the statutory gap by defining “agency” as an executive agency in 5 C.F.R. § 315.611(b) | Vassallo: OPM’s definition improperly narrows veterans’ rights and expands DOD’s hiring pool in ways contrary to VEOA’s purpose | OPM/Gov: Congress expressly authorized OPM to promulgate regulations; adopting the statutory term “executive agency” is reasonable | Court: OPM’s regulation is a permissible construction and not arbitrary or manifestly contrary to the statute; Board properly deferred to OPM |
Key Cases Cited
- Joseph v. Federal Trade Comm’n, 505 F.3d 1380 (Fed. Cir.) (distinguishing competitive examination and merit promotion processes)
- Forest v. Merit Sys. Prot. Bd., 47 F.3d 409 (Fed. Cir.) (standard of review for MSPB decisions)
- Welshans v. U.S. Postal Serv., 550 F.3d 1100 (Fed. Cir.) (Board legal determinations reviewed de novo)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S.) (two‑step framework for reviewing agency statutory interpretation)
- Wilder v. Merit Sys. Prot. Bd., 675 F.3d 1319 (Fed. Cir.) (Chevron step application to MSPB/agency regulations)