Vincent Curtis Conyers v. Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VINCENT CURTIS CONYERS,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-2259
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
------------------------------------------------------
VINCENT CURTIS CONYERS,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2018-1435
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 2
Decided: October 3, 2018
______________________
VINCENT CURTIS CONYERS , Uniondale, NY, pro se.
ALBERT S. I AROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
MARTIN F. H OCKEY , J R., ROBERT E DWARD K IRSCHMAN, J R.,
CHAD A. READLER; MICHELLE BERNSTEIN, BRIAN D.
G RIFFIN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Before N EWMAN, L OURIE, and CLEVENGER , Circuit Judges.
P ER CURIAM .
Vincent Curtis Conyers petitions this Court under
38 U.S.C. § 502 to review two rules promulgated by the
Secretary of Veterans Affairs (“Secretary”) and the proce-
dures employed to promulgate those rules. Specifically,
Mr. Conyers asserts that the substance of the revisions
effected by the regulations violates several of the Depart-
ment of Veterans Affairs’ (“VA”) statutory obligations, and
that the Secretary erroneously waived the notice-and-
comment and 30-day delayed effective date requirements
of the Administrative Procedure Act (“APA”).
BACKGROUND
The VA’s Vocational Rehabilitation and Counseling
Service (“VR&C”) previously hired Counseling Psycholo-
gists (“CPs”) under the Psychology Series (GS-0180). The
job requirements for a CP included:
[a degree with a] major or equivalent in psycholo-
gy for all specializations . . . [and f]or positions at
grades GS-9 and above, satisfactory completion of
2 full academic years of graduate study directly

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 3
related to professional work in counseling psy-
chology, or satisfactory completion in an accredit-
ed educational institution of all the requirements
for a master’s degree directly related to counseling
psychology is required.
https://www.opm.gov/policy-data-oversight/classification-
qualifications/general-schedule-qualification-standards/
0100/psychology-series-0180/.
On January 10, 2000, the VA changed the name of the
VR&C to the Vocational Rehabilitation and Employment
Service (“VR&E”) to better reflect the program’s focus on
employment. Letter from Joseph Thompson, Under
Secretary for Benefits, Vet. Benefits Admin., VBA Letter
20-99-90 (Dec. 21, 1999). The VR&E subsequently discon-
tinued the hiring of CPs under the Psychology Series, and
began hiring a new workforce under the title of Vocational
Rehabilitation Counselors (“VRCs”) under the Social
Science Series (GS-0101), having concluded that the
majority of duties performed by CP officers more closely
met the classification standards and complexities associ-
ated with VRC officers. Memorandum from Julie A.
Murphy, Dir., Office of Human Res., to Jack Kammerer,
Dir., VR&E Service (Dec. 28, 2015). The VA then began
amending a limited number of regulations to grant VRCs
some authority previously reserved for CPs. See, e.g.,
Vocational Rehabilitation and Employment Program—
Initial Evaluations, 72 Fed. Reg. 14,041 (Mar. 26, 2007);
Vocational Rehabilitation and Employment Program—
Periods of Eligibility, 75 Fed. Reg. 3,165 (Jan. 20, 2010).
In May of 2016, the Secretary promulgated a final
rule titled “Technical Corrections—VA Vocational Reha-
bilitation and Employment Nomenclature Change for
Position Title,” which amended the remaining regulations
that referred to CPs to include a reference to VRCs as
well. 81 Fed. Reg. 26,130 (May 2, 2016) (“May 2016
Rule”). In essence, the regulation equated the two posi-

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 4
tions in terms of decision-making authority within the
VR&E.
In promulgating the May 2016 Rule, the Secretary
based the decision, at least in part, on two non-public
documents—a December 2003 Performance Plan and a
June 2004 VA Office of Field Operations Letter 20F-11-
09—which allegedly “described how the job duties and
qualifications for a CP and VRC were the same.” Id.
Thus, the Secretary considered the rule a mere change in
position title, and found it exempt from the requirements
for notice-and-comment and 30-day delayed effective date
pursuant to 5 U.S.C. §§ 553(b)(3) and (d)(3). Id.
Mr. Conyers, a service-connected disabled veteran, pe-
titioned this Court, challenging the May 2016 Rule under
38 U.S.C. § 502. Conyers v. Sec’y of Veterans Affairs, No.
16-2259, ECF No. 1 (June 28, 2016) (“Conyers I”). Specifi-
cally, Mr. Conyers questioned the existence of the Decem-
ber 2003 Performance Plan, without which the Secretary
would not have had a basis to invoke §§ 553(b)(3) or (d)(3).
Upon searching for the December 2003 Performance Plan
to no avail, and before filing a brief in response to Mr.
Conyers’ opening brief, the Secretary asked for a stay to
publish a revised rule addressing the shortcomings of the
May 2016 Rule, Conyers I, ECF No. 25 (Feb. 10, 2017),
which this Court granted, Conyers I, ECF No. 29 (Mar. 21,
2017).
Eight months later, the Secretary published a revised
interim rule. VA Vocational Rehabilitation and Employ-
ment Nomenclature Change for Position Title–Revision,
82 Fed. Reg. 54,295 (Nov. 17, 2017) (“November 2017
Revised Rule”). In it, the Secretary acknowledged that
the December 2003 Performance Plan referenced in the
May 2016 Rule was actually dated July 1, 2004, but also
admitted that the Plan did not, in fact, state that the job
duties and qualifications for a CP and a VRC were the
same. Id. Nonetheless, the Secretary adopted all of the

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 5
amendments provided in May 2016 Rule. Id. Instead of
relying on the Performance Plan, however, the Secretary
detailed the job requirements of VRCs, which demanded:
a master’s degree in rehabilitation counseling, in-
cluding an internship, or in counseling psycholo-
gy, or a related field, including at least 30
semester hours of course work in the foundations
of rehabilitation counseling, human growth and
development, counseling theories and techniques,
vocational assessment, career development, job
placement, case management, or medical/psycho-
social aspects of disability[; and]
total graduate study [that] must have included or
been supplemented by a supervised internship or
successful professional experience following the
completion of the master’s degree.
Id. at 54,296; see also VA Handbook 5005/6 Part II, Appx.
F2, 1 (June 3, 2004). The Secretary concluded that such
“requirements are comparable to the requirements appli-
cable to CP positions but are more accurately aligned with
the needs of the VR&E program. . . .” 82 Fed. Reg. at
54,296.
Mr. Conyers petitioned this Court a second time, chal-
lenging the November 2017 Revised Rule under 38 U.S.C.
§ 502. Conyers v. Sec’y of Veterans Affairs, No. 18-1435,
ECF No. 1 (“Conyers II”). Upon lifting the stay in Conyers
I, the two petitions have been consolidated for the purpos-
es of this opinion.
D ISCUSSION
This Court has exclusive jurisdiction to review rule-
making actions taken by the Secretary to which 5 U.S.C.
§§ 552(a)(1) or 553 refer. 38 U.S.C. § 502. Section
552(a)(1) refers to agency actions that must be published
in the Federal Register, including “each amendment,
revision, or repeal” of “rules of procedure” or “substantive

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 6
rules of general applicability adopted as authorized by
law.” 5 U.S.C. §§ 552(a)(1)(C)–(E); Disabled Am. Veterans
v. Gober, 234 F.3d 682, 688 (Fed. Cir. 2000). Section 553
refers to agency rulemaking that must comply with
notice-and-comment procedures under the APA. 5 U.S.C.
§ 553; Disabled Am. Veterans, 234 F.3d at 688. “Thus,
under 38 U.S.C. § 502, we may review the VA’s procedural
and substantive rules, any amendments to those rules,
and the process in which those rules are made or amend-
ed.” Id. at 688–89.
We review any petitions under § 502 according to the
standards set forth in the APA. 5 U.S.C. §§ 701–706;
Nyeholt v. Sec’y of Veterans Affairs, 298 F.3d 1350, 1355
(Fed. Cir. 2002). Under the APA, this Court will “hold
unlawful and set aside agency action” only if the action is
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); Mortg.
Investors Corp. v. Gober, 220 F.3d 1375, 1378 (Fed. Cir.
2000). “This review is ‘highly deferential’ to the actions of
the agency,” Disabled Am. Veterans, 234 F.3d at 691
(citing LeFevre v. Sec’y, Dep’t of Veterans Affairs, 66 F.3d
1191, 1199 (Fed. Cir. 1995)), and a rulemaking action is
not arbitrary and capricious if there is a “rational connec-
tion between the facts found and the choice made.” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (citation and internal quotation marks
omitted); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of
Veterans Affairs, 669 F.3d 1340, 1348 (Fed. Cir. 2012).
A
The Government argues that this Court lacks juris-
diction to review the rules at issue based on the APA’s
“personnel exception” under 5 U.S.C. § 553(a)(2). The
personnel exception disposes of the requirements set forth
in 5 U.S.C. § 553(b)–(d), including notice-and-comment,
for “matter[s] relating to agency management or person-
nel.” 5 U.S.C. § 553(a)(2). Such matters may include

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 7
determinations of employee bonuses, the promulgation of
a personnel manual or handbook, and hiring practices.
5 U.S.C. § 553(a)(2); see Tunik v. Merit Sys. Prot. Bd., 407
F.3d 1326, 1342–43 (Fed. Cir. 2005). However, the per-
sonnel exception is narrow, Joseph v. U.S. Civil Serv.
Comm’n, 554 F.2d 1140, 1153 (D.C. Cir. 1977), and does
not apply “where a proposed rule substantially affects
parties outside an agency and implicates broad public
concerns.” Tunik, 407 F.3d at 1344 (quoting Stewart v.
Smith, 673 F.2d 485, 505 (D.C. Cir. 1982) (Wright, J.,
dissenting)).
According to the Government, the rules at issue do
nothing more than “add a reference to VRCs where regu-
lations referenced a CP,” and that such action falls
squarely within the personnel exception. Conyers II,
ECF. No. 20 at 12. As a result, the Government argues
that the Secretary was exempt from the requirements of
§ 553 and, by extension, the rules are unreviewable under
38 U.S.C. § 502.
For support, the Government relies upon Disabled
American Veterans v. Secretary of Veterans Affairs, where
this Court found that it lacked jurisdiction to review the
promulgation of the VA’s Adjudication Procedures Manual
(“M21-1 Manual”) under § 553. 859 F.3d 1072 (Fed. Cir.
2017) (“DAV”). But in that case, this Court found the
M21-1 Manual unreviewable under § 502 not only because
it fell within the personnel exception of § 553, but also
because the production of an administrative staff manual
was expressly exempt from the publication requirements
of § 552(a)(1) under § 552(a)(2). See DAV, 859 F.3d at
1075 (“Section 502’s express exclusion of agency actions
subject to § 552(a)(2) renders the M21-1 Manual beyond
our § 502 jurisdiction . . . .”). Here, we are dealing with a
rule, not a manual. And even if the personnel exception
applied in this case—exempting the rules at issue from
the requirements of § 553—the rules are still subject to

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 8
review by this Court under § 552(a)(1). 38 U.S.C. § 502; 5
U.S.C. §§ 552 (a)(1)(C)–(D).
But the Government has also failed to show that the
personnel exception applies in this case. The Government
argues that the rules at issue do not substantially affect
outside parties or implicate broad public concern. And yet
the Government admits that “[t]hese amendments allow
both CPs and VRCs to make the same determinations and
provide the same services.” Conyers II, ECF. No. 20 at 12.
In other words, the VA is authorizing a new group of
personnel under the title of VRCs to render services and
make determinations related to veterans’ benefits that
were previously reserved for CPs.
The extension of such authority is not merely a mat-
ter of hiring practices or position nomenclature, and will
substantially affect outside individuals—specifically
veterans who receive services or are subject to determina-
tions made by VRCs instead of CP officers. Compare
Stewart v. Smith, 673 F.2d at 487 (concluding that the
personnel exception applied to a Bureau of Prisons’ hiring
policy of not considering for employment anyone over the
age of 34), with Joseph v. United States Civil Serv.
Comm’n, 554 F.2d 1140, 1153 n. 23 (D.C. Cir. 1977)
(concluding that the personnel exception does not apply to
a rule exempting personnel from some of the prohibitions
of the Hatch Act for local elections in the District of
Columbia because outsiders will be substantially affect-
ed). Thus, the personnel exception of § 553 does not apply
to the rules at issue, and we have jurisdiction to review
the Secretary’s action under § 502.
B
Mr. Conyers argues that the rules at issue violate fed-
eral law in both substance and procedure—that the rules
fail to meet the VA’s statutory obligations, and the prom-
ulgation of the rules violated the APA.

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 9
First, Mr. Conyers argues that he had shown in his
opening brief in Conyers I serious deficiencies in the
qualifications, duties, and responsibilities of VRCs com-
pared to CPs. Mr. Conyers allegedly highlighted those
deficiencies through OPM classification standards, train-
ing matrices, core competencies, certification and licen-
sure requirements, and methodological practices. Conyers
I, ECF No. 14 at 20–25. But this case is not about hiring
qualifications; the Secretary has the discretion to “estab-
lish such qualifications for personnel providing evaluation
and rehabilitation services.” 38 U.S.C. § 3118(c). Nor is
this case about whether VRCs are identical to CPs in
terms of education, training, or quality. What this case
concerns is whether VRCs, in the performance of the
duties assigned to them by the rules at issue, meet the
VA’s statutory obligations to provide rehabilitation ser-
vices to veterans. In this regard, Mr. Conyers fails to
show that the differences in hiring standards violate
specific laws that may impact the lawfulness of the rules
at issue.
The only substantive laws that Mr. Conyers alleges
the rules at issue violate are 29 U.S.C. § 721(a)(7)(B)(ii)
and 5 U.S.C. § 5105(b). Specifically, Mr. Conyers provides
an example that a core competency of a CP is to adminis-
ter and interpret psychometric tests, but the job require-
ments of a VRC “raise[] doubts whether a particular VRC
is actually trained and competent in administrating and
interpreting psychometric tests . . . [and may] violate the
scope of practice inherent to his/her State license or
certification.” Conyers II, ECF No. 10 at 23 (Apr. 20,
2018).
But § 721—a part of the Rehabilitation Act of 1973—
does not address the necessity for psychometric tests as
part of the VA’s statutory obligations to provide rehabili-
tation services. Instead, the statute details only the
requirements for formal state plans that must be pro-
duced to receive federal funds for state rehabilitation

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 10
programs. See 29 U.S.C. § 721(a)(1). Section 721—and
subsection (a)(7)(B)(ii) in particular—imposes no directive
upon the VA in relation to its hiring standards and prac-
tices. See 29 U.S.C. § 721(a)(7)(B) (noting that “the state
plan shall . . . (B) set forth policies and procedures relat-
ing to the establishment and maintenance of standards to
ensure that personnel . . . are appropriately and ade-
quately prepared and trained . . . .”). And even if such a
conflict exists between a VRC’s duties in that capacity
and state requirements to provide rehabilitative services,
Mr. Conyers has proffered no specific instances of fact or
violations of law necessary to determine that the rules at
issue are “not in accordance with law.” 5 U.S.C.
§ 706(2)(A). We cannot base our conclusions on hypothet-
icals or argument alone.
Further, while Mr. Conyers argues the VA must con-
sult with OPM before making hiring changes, § 5105
merely grants OPM the discretion to “revise, supplement,
or abolish existing standards, or prepare new standards,
so that, as nearly as may be practicable, positions existing
at any given time will be covered by current published
standards.” 5 U.S.C. § 5105(b). In other words, § 5105
places no requirement on the VA either.
Nor has Mr. Conyers shown that the Secretary’s ac-
tions in promulgating the rules at issue are arbitrary and
capricious. An agency’s action may be considered arbi-
trary and capricious if:
the agency has relied on factors which Congress
has not intended it to consider, entirely failed to
consider an important aspect of the problem, of-
fered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a dif-
ference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. Mr. Conyers
alleges that the rules at issue are arbitrary and capricious

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 11
because the Secretary improperly conflated the CP and
VRC positions, provided an insufficient factual record,
and justified the rulemaking as resolving confusion which
the Secretary himself caused. But Mr. Conyers’ argu-
ments miss the mark.
Here, the facts sufficiently support the Secretary’s
decision to grant VRCs authority previously exercised by
CPs. The Secretary addressed in detail how VRCs are
sufficiently qualified to provide rehabilitative services to
meet the VA’s statutory obligations. 82 Fed. Reg. at
54,296. Further, the Secretary explained that the VR&E,
whether by its own doing or because of the limitations of
human resources’ hiring codes, faced a shortage of CPs
and an abundance of VRCs. See id. at 54,297 (noting that
the VR&E currently employs only 10 CPs while providing
services for nearly 200,000 veterans). And the documents
cited in the November 2017 Revised Rule support the
Secretary’s position and rationale. Thus, the Secretary
has shown a rational connection between the facts found
and the choice made, and Mr. Conyers has failed to show
that the Secretary’s actions were arbitrary and capricious.
Because Mr. Conyers has not sufficiently shown a vio-
lation of federal law or that the Secretary’s actions were
arbitrary and capricious, we cannot now say that the
Secretary was acting beyond the scope of his authority by
promulgating the November 2017 Revised Rule with an
immediate effective date. According to § 553, the Secre-
tary may circumvent notice-and-comment and the delayed
effective date if the agency finds “good cause” to do so.
See 5 U.S.C. § 553(b)(3)(B) (excepting an agency action
from notice-and-comment when “the agency for good
cause finds . . . that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public
interest.”); see also 5 U.S.C. § 553(d)(3) (excepting an
agency from the 30-day delayed effective date require-
ment when “provided by the agency for good cause found
and published with the rule”).

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CONYERS v. SECRETARY OF VETERANS AFFAIRS 12
The November 2017 Revised Rule provided a 30-day
notice-and-comment period, and therefore any arguments
related to § 553(b)(3)(B) are moot. And while the Secre-
tary was still required to show good cause to waive the
typical 30-day delayed effective date, we find that the
Secretary has shown such cause. Given the extraordinary
shortage of CPs and the fact that at least some cases
handled by VRCs were being remanded because the
regulations permitted only CPs to make certain determi-
nations, see e.g. (Title Redacted by Agency), Bd. Vet. App.
1529855 (July 13, 2015), the Secretary had sufficiently
good cause to expedite implementation of the rule. Thus,
Mr. Conyers has failed to show any substantive or proce-
dural deficiency with the rules at issue.
AFFIRMED
COSTS
No costs.

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