John S. Pope v. United States Department of Transportation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1191
J OHN S. P OPE ,
Plaintiff-Appellant,
v.
U NITED S TATES D EPARTMENT OF T RANSPORTATION ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2507—Charles R. Norgle, Sr., Judge.
____________
S UBMITTED J UNE 9, 2005—D ECIDED A UGUST 26, 2005
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Before POSNER , C OFFEY , and W ILLIAMS , Circuit Judges.
P OSNER , Circuit Judge. Pope applied unsuccessfully for a
job as a lawyer with the Federal Motor Carrier Safety
Administration, a part of the Department of Transportation.
He has sued the department under 5 U.S.C. § 3330b, enacted
as part of the Veterans Employment Opportunities Act of
1998, Pub. L. No. 105-339, 112 Stat. 3182, claiming that he
would have gotten the job had he received the veteran
preference to which he was entitled. The district court
dismissed the suit on the government’s motion for summary
judgment.

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2 No. 05-1191
The Safety Administration treated Pope’s being a veteran
as merely a tie breaker: he would get the job only if he were
as good as the best competing applicant; and he wasn’t.
Pope points out that 5 U.S.C. § 3309 entitles veterans to the
addition of five or ten points (depending on disability,
family status, and other factors) to their scores on job
examinations. But this supposes an examination; and the
only statutory requirement of an examination is for filling
jobs in what is called the “competitive service.” 5 U.S.C.
§ 3304(b); U.S. Dept. of Health & Human Services v. FLRA, 858
F.2d 1278, 1279 n. 2 (7th Cir. 1988). The job for which Pope
applied is in the “excepted service,” defined as “those civil
service positions which are not in the competitive service or
the Senior Executive Service.” 5 U.S.C. § 2103(a). Jobs as
lawyers are in the excepted service. 5 C.F.R. § 213.3102. No
examination is required for such jobs. Bosco v. United States,
931 F.2d 879, 883 n. 2 (Fed. Cir. 1991); National Treasury
Employees Union v. Horner, 854 F.2d 490, 492 (D.C. Cir. 1988).
Veterans are nevertheless entitled to preference when
applying for jobs in the excepted service, Nixon v. Fitzgerald,
457 U.S. 731, 787 (1982); U.S. Dept. of Health & Human
Services v. FLRA, supra, 858 F.2d at 1279 n. 2; U.S. Dept. of
Labor, Veterans’ Employment and Training Service, VETS
Fact Sheet 8, “Veterans Preference,” www.dol.gov/vets/
programs/fact/veterans_preference_fs08.htm; see also 5
U.S.C. § 3320; Hillman v. TVA, 95 M.S.P.R. 162, 170 (2003);
Smith v. United States Postal Service, 81 M.S.P.R. 92, 99 n. 6
(1999)—there just is no statutory guidance on how
much preference they’re entitled to when the job is not
awarded on the basis of a competitive exam. The Office of
Personnel Management, which is authorized to implement
the veteran preference statutes, 5 U.S.C. § 1302; Metzenbaum
v. GSA, 96 M.S.P.R. 104, 110 n. 6 (2004); American Federation
of Government Employees v. OPM, 821 F.2d 761, 769 n. 8 (D.C.

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No. 05-1191 3
Cir. 1987), has issued regulations that impose detailed
requirements on agencies asked to grant a veteran prefer-
ence in filling a job in the excepted service. See generally 5
C.F.R. § 302. But the regulations are inapplicable to attorney
positions, § 302.101(c)(9), as to which the agency is required
only to “follow the principle of veteran preference as far as
administratively feasible.” § 302.101(c).
The words we’ve italicized indicate the extreme vague-
ness of this mandate, in light of which the decision of the
Safety Administration to treat veteran status as merely a tie
breaker cannot be thought an abuse of discretion. This
would be the applicable legal standard for us to use, given
the lack of direction in the regulation, were this a case of
judicial review of agency action governed by the Adminis-
trative Procedure Act. Alaska Dept. of Environmental Conser-
vation v. EPA, 540 U.S. 461, 496-97 (2004); United States v.
Bean, 537 U.S. 71, 77 (2002). It is not; the Veterans Employ-
ment Opportunities Act authorizes a veteran to “file an
action with the appropriate United States district court” if,
as in this case, the Merit Systems Protection Board does not
issue its decision within 120 days, 5 U.S.C. § 3330b, in which
event there is no administrative adjudication to review.
Compare United States v. Bean, supra, 537 U.S. at 74 n. 1. So
the question for the district court and this court was simply
whether the tie-breaker rule utilized by the employing
agency was consistent with the regulation. See Chandler
v. Roudebush, 425 U.S. 840 (1976); Martin v. Department
of Veterans Affairs, 412 F.3d 1258, 1263-64 (Fed. Cir. 2005).
But nothing of practical significance turns on the differ-
ence in judicial standards. Because the regulation is wholly
nondirective, the tie-breaker rule would have to be arbitrary
indeed to violate it; it is not arbitrary, and there is therefore
no basis for the courts’ second guessing the agency. By

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4 No. 05-1191
granting unguided discretion to the employing agency, the
regulation left little room for judicial review. United States v.
Taylor, 487 U.S. 326, 336 (1988) (where Congress has “merely
committed the choice of remedy to the discretion of district
courts, without specifying factors to be considered
. . . appellate review of that determination necessarily would
be limited”); Schurz Communications, Inc. v. FCC, 982 F.2d
1043, 1048 (7th Cir. 1992) (where statute “provides no
guidance” for exercise of authority “other than that the
Commission is to act in accordance with the public interest,
convenience, or necessity . . . so nebulous a mandate invests
the Commission with an enormous discretion and corre-
spondingly limits the practical scope of responsible judicial
review”); Connecticut Dept. of Children & Youth Services v.
Department of Health & Human Services, 9 F.3d 981, 986 (D.C.
Cir. 1993) (“given the extraordinary grant of discretion” in
a statute requiring the Secretary of Health and Human
Services to implement foster care programs to his “satisfac-
tion,” “a state would have to present an egregious claim to
prevail”).
The judgment of the district court is therefore
A FFIRMED .

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No. 05-1191 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-26-05

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