United States Court of Appeals
for the Federal Circuit
__________________________
MANUEL LAZARO,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3190
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT3330101005-I-1.
_________________________
Decided: February 2, 2012
_________________________
MANUEL LAZARO, of Homestead, Florida, pro se.
DOUGLAS G. EDELSHICK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. On
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, FRANKLIN E. WHITE, JR.,
Assistant Director, and MEREDYTH COHEN HAVASY, Trial
Attorney.
__________________________
LAZARO v. VA 2
Before RADER, Chief Judge, and O’MALLEY and REYNA,
Circuit Judges,
O’MALLEY, Circuit Judge.
Manuel Lazaro (“Mr. Lazaro”) appeals the Final Or-
der of the Merit Systems Protection Board (“the Board”)
that denied his claim for relief under the Veterans Em-
ployment Opportunities Act (“VEOA”). In reaching this
conclusion, the Board found no error in the Administra-
tive Judge’s (“AJ”) Initial Decision. Because we conclude
that the Board committed legal error, we vacate and
remand.
BACKGROUND
On August 10, 2009, Mr. Lazaro applied for an IT spe-
cialist position with the Miami VA Healthcare System.
Appendix (“App.”) 60. According to the Vacancy An-
nouncement, to be qualified for this position, the appli-
cant needed “[o]ne (1) year of specialized experience
equivalent to at least the GS-9 level in the Federal Ser-
vice . . . .” App. 80. The announcement explained that
education could be used as a substitute for this experi-
ence, namely, a Ph.D. or equivalent doctoral degree, or
three full years of progressively higher level graduate
education leading to a Ph.D. or equivalent doctoral de-
gree. Id. On September 2, 2009, Mr. Lazaro was in-
formed by letter that he was not considered for the
position. App. 58. Although Mr. Lazaro had fifty-three
hours of relevant educational experience and at least six
months of experience equivalent to the GS-9 level, the
Department of Veterans Affairs (“VA”) determined that
he did not meet the specialized experience requirement.
App. 58.
After exhausting his rights before the Department of
Labor, App. 52, on August 30, 2010, Mr. Lazaro filed an
3 LAZARO v. VA
appeal with the Board under the VEOA, asserting that
the VA violated his rights under a statute or regulation
relating to veteran’s preference when it did not select him
for the position of IT specialist. App. 30. In essence, Mr.
Lazaro argued that the VA violated his preference rights
when it determined that he did not meet the experience
requirements for the IT specialist position. App. 33.
Specifically, Mr. Lazaro claimed that, given his veteran’s
preference eligibility, the VA was required to consider
those experiences specified in 5 C.F.R. § 302.302(d)
(2011), one regulation among those implementing the law
governing veteran’s preference set forth in Title Five of
the United States Code.
After considering Mr. Lazaro’s arguments, the AJ
concluded that the Board had no authority to review the
VA’s non-selection of Mr. Lazaro, and, therefore, denied
his request for corrective action. App. 33–34. Summariz-
ing Mr. Lazaro’s argument, the AJ stated, “the appellant
believes that the agency did not properly evaluate his
‘valuable experience,’ by failing to credit work he per-
formed while a GS-7 as experience at the GS-9 level.”
App. 33. Relying upon Ruffin v. Department of Treasury,
89 M.S.P.R. 396 (2001), the AJ concluded that the Board
lacked jurisdiction to adjudicate Mr. Lazaro’s claim be-
cause his “argument challenges the merits of his non-
selection,” an issue the Board has no authority to
adjudicate. Id.
In response to the AJ’s denial of his claims, Mr.
Lazaro filed a petition for review of the Initial Decision.
App. 4. The Board concluded that “[w]e see no error in
the administrative judge’s analysis finding that the
agency afforded the appellant consideration of all of his
prior experience as required by 5 C.F.R. § 302.302(d).” Id.
Accordingly, the Board denied Mr. Lazaro’s petition for
review because it did not establish the existence of signifi-
LAZARO v. VA 4
cant new evidence not presented to the Board, or that the
AJ erred in interpreting a law or regulation. App. 4–5.
Mr. Lazaro filed a timely appeal. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
I.
Mr. Lazaro challenges the Board’s denial of his peti-
tion for review of the AJ’s Initial Decision, which denied
his claim for corrective action on the grounds that the
Board lacked jurisdiction to adjudicate the claim. The
Board grants a petition for review when significant new,
previously unavailable evidence is presented, or when the
AJ based his decision on an erroneous interpretation of
law or regulation. 5 C.F.R. § 1201.115. We must affirm
the Board’s decision to deny Mr. Lazaro’s petition unless
it is “(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 a determination of the Board’s jurisdiction
de novo. See Stoyanov v. Dep’t of Navy, 474 F.3d 1377,
1379 (Fed. Cir. 2007). The Board’s jurisdiction is limited
to actions made appealable to it by law, rule, or regula-
tion. 5 U.S.C. § 7701(a). As the petitioner, Mr. Lazaro
bears the burden of proving by preponderant evidence
that the Board has jurisdiction. 5 C.F.R. § 1201.56(a)(2).
II.
Under the Veterans’ Preference Act of 1944, Pub. L.
No. 359, ch. 287, 58 Stat. 390, preference eligible veterans
receive advantages when seeking federal employment.
See Mitchell v. Cohen, 333 U.S. 411, 418–19 (1948) (“The
5 LAZARO v. VA
Veterans’ Preference Act was accordingly adopted, creat-
ing special preference and protection for returning veter-
ans at every stage of federal employment.”). To enable
veterans to receive these preference rights, Congress
enacted statutes and authorized the Office of Personnel
Management to adopt regulations related to the hiring of
preference eligible veterans. See Joseph v. FTC, 505 F.3d
1380, 1381–82 (Fed. Cir. 2007) (discussing the statutes
and regulations enacted to provide veterans with their
preference rights); MacLeod v. Dep’t of Veterans Affairs,
280 F. App’x 962, 964–65 (Fed. Cir. 2008) (unpublished
decision). When a governmental agency fills a vacancy it
must comply with these statutes and regulations. Joseph,
505 F.3d at 1381–82; MacLeod, 280 F. App’x at 964–65.
The VEOA provides preference eligible veterans with a
right to file a claim for any agency hiring decision that
violated the veteran’s rights under a statute or regulation
relating to veteran’s preference. 5 U.S.C. § 3330a.
One of the advantages received by preference eligible
veterans is that an agency must comply with special
statutes and regulations when it determines whether a
veteran is qualified for a given position. See Kirkendall v.
Dep’t of Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009);
Phillips v. Dep’t of Navy, 110 M.S.P.R. 184 (2008). For
example, in determining whether a preference eligible
veteran is qualified, the number of years of education
completed by the veteran is not relevant. 38 U.S.C.
§ 4214(b). 1 In other words, a preference eligible veteran
1 Which states:
(1) To further the policy stated in subsection (a) of
this section, veterans referred to in paragraph (2)
of this subsection shall be eligible, in accordance
with regulations which the Office of Personnel
Management shall prescribe, for veterans re-
cruitment appointments, and for subsequent ca-
reer-conditional appointments, under the terms
LAZARO v. VA 6
cannot be deemed unqualified for a position because he
lacks sufficient years of education. When experience is a
factor in determining qualification for a position, more-
over, a preference eligible veteran is entitled to be cred-
ited for all valuable experience, including experience
gained “in religious, civic, welfare, service, and organiza-
tional activities, regardless of whether pay was received
therefor.” 5 C.F.R. § 302.302(d); see also 5 U.S.C. § 3311
(“In examinations for the competitive service in which
experience is an element of qualification, a preference
eligible is entitled to credit . . . for all experience material
to the position for which examined, including experience
gained in religious, civic, welfare, service, and organiza-
tional activities, regardless of whether he received pay
therefor.”). Despite these statutes and regulations, the
VEOA does not enable veterans to be considered for
positions for which they are not qualified. E.g., Ramsey v.
Office of Pers. Mgmt., 87 M.S.P.R. 98, ¶ 9 (2000).
In this case, there were essentially two qualifications
necessary for the IT specialist position: (1) a minimum
level of education; and (2) “[o]ne (1) year of specialized
experience equivalent to at least the GS-9 level in the
Federal Service.” App. 80. Because of his preference, Mr.
Lazaro satisfied the first criteria, regardless of his actual
level of education. The VA determined, however, that Mr.
Lazaro did not satisfy the second. App. 58. On appeal,
and conditions specified in Executive Order Num-
bered 11521 (March 26, 1970), except that—
(A) such an appointment may be made up to and
including the level GS-11 or its equivalent;
(B) a veteran shall be eligible for such an ap-
pointment without regard to the number of years
of education completed by such veteran . . . .
38 U.S.C. § 4214(b).
7 LAZARO v. VA
Mr. Lazaro argues that the VA violated his preference
rights when it made that determination. He argues that
the VA did not determine whether he was qualified in
accordance with 5 C.F.R. § 302.302(d) because it failed to
consider some of his computer-related work experience.
In response, the Government argues that the Board
properly denied Mr. Lazaro’s petition for review because
the Board lacks jurisdiction to determine whether the VA
violated Mr. Lazaro’s preference rights when it deter-
mined that he was not qualified for the IT specialist
position. 2
It is important to keep in mind that this case was de-
cided on jurisdictional grounds, and that the AJ con-
ducted no analysis with respect to the merits of Mr.
Lazaro’s claims under 5 C.F.R. § 302.302(d). While the
Final Decision indicates that the Board found “no error”
in the AJ’s determination that the VA considered all of
Mr. Lazaro’s prior experience in accordance with 5 C.F.R.
§ 302.302(d), the AJ never performed that analysis. First,
the AJ concluded that Mr. Lazaro’s appeal raised an issue
the Board lacked jurisdiction to review. App. 33. (“[W]hile
I recognize that the appellant disagrees with that deter-
mination, the Board lacks jurisdiction to review the
nonselection action on its merits.”). Second, the AJ’s only
analysis with respect to the merits of Mr. Lazaro’s non-
selection considered whether the VA properly applied 38
U.S.C. § 4214(b) and not 5 C.F.R. § 302.302(d). Id. In
light of this fact, we must determine whether the Board
2 Mr. Lazaro does not contend that he has gradu-
ate-level education that can substitute for the required
experience, nor does he contend that 38 U.S.C. § 4214(b)
would allow a substitution in the absence of such actual
education. He simply argues that he has qualifying
experience under 5 C.F.R. § 302.302(d) that was never
considered by the VA.
LAZARO v. VA 8
correctly determined that the AJ committed no legal error
when he concluded that both he and the Board lacked
jurisdiction over Mr. Lazaro’s claim.
To establish Board jurisdiction over an appeal
brought under the VEOA, an appellant must (1) show
that he exhausted his remedies with the [Department of
Labor] and (2) make nonfrivolous allegations that (i) he is
preference eligible within the meaning of the VEOA, (ii)
the action(s) at issue took place on or after the October 30,
1998 enactment date of the VEOA, and (iii) the agency
violated his rights under a statute or regulation relating
to veteran’s preference. See 5 U.S.C. § 3330a; Campion v.
Merit Sys. Prot. Bd., 326 F.3d 1210, 1213, 1215 (Fed. Cir.
2003). In this case, the only issue in dispute is whether
Mr. Lazaro made a non-frivolous allegation that the VA
violated his rights under a statute or regulation relating
to veteran’s preference. See App. 30–31. For the reasons
explained below, we conclude that he has.
Under 5 C.F.R. § 302.302(d):
When experience is a factor in determining eligi-
bility, an agency shall credit a preference eligible
(1) with time spent in the military service of the
United States if the position for which he/she is
applying is similar to the position which he/she
held immediately before his/her entrance into the
military service; and (2) with all valuable experi-
ence, including experience gained in religious,
civic, welfare, service, and organizational activi-
ties, regardless of whether pay was received
therefore.
5 C.F.R. § 302.302(d).
Here, there is no question that experience was a fac-
tor in determining whether Mr. Lazaro was eligible for
9 LAZARO v. VA
the IT specialist position. This regulation, moreover,
clearly relates to veteran’s preference. See 5 C.F.R.
§ 302.302(d) (“[A]n agency shall credit a preference eligible
. . . .”) (emphasis added). It appears that the AJ and the
Board concluded that they lacked jurisdiction over Mr.
Lazaro’s claims because they believed that addressing the
merits of his claim would require the Board to address the
“merits of his nonselection,” which they believed fell
outside the Board’s jurisdiction. App. 33. In support of
this belief, both the AJ and the Board relied upon Ruffin.
Id.; App. 4. This reliance was misplaced.
In Ruffin, the Board held “that [it] has no authority to
review, in a VEOA appeal, a claim of discrimination
covered under 5 U.S.C. § 7702(a)(1).” Ruffin, 89 M.S.P.R.
at 401. In reaching this conclusion, the Board explained
that, in a VEOA appeal, it has authority only to deter-
mine whether an agency’s actions violated a veteran’s
preference rights. Id. Absent this nexus between the
agency’s action and a violation of a veteran’s preference
rights, the Board has no jurisdiction to adjudicate the
merits of an agency’s personnel action. Id. at 400. While
this opinion contains sweeping language indicating that
the issue in a VEOA appeal “is not whether a particular
personnel action is proper and should be sustained,” the
opinion makes clear that this limitation is applicable only
when the agency’s personnel action did not relate to an
alleged violation of a veteran’s preference rights. Id. at
400–01. In Ruffin, for example, the appellant’s age dis-
crimination claim did not and could not give rise to a
violation of a statute or regulation relating to veteran’s
preference. Id.
If the position urged by the Government, and accepted
by the AJ and the Board, was correct, a veteran could
never assert a claim within the jurisdiction of the Board
because the only way to determine whether the agency
LAZARO v. VA 10
violated the veteran’s preference rights would be to ana-
lyze whether the agency properly took the veteran’s
preference rights into account when making its personnel
decision, i.e., examining the merits of the agency’s deci-
sion. There is simply no way to analyze whether a vet-
eran’s preference rights were violated without examining
the grounds upon which the veteran’s non-selection was
predicated.
On at least two occasions, moreover, the Board has
conducted exactly the type of analysis sought by Mr.
Lazaro. Phillips, 110 M.S.P.R. at 187–90; Clarke v. Dep’t
of Navy, 94 M.S.P.R. 604, 606–08 (2003). In Clarke, the
appellant argued that he was not afforded the opportunity
to compete for a position. 94 M.S.P.R. at 605–07. The AJ
dismissed the appellant’s appeal for lack of jurisdiction.
Id. at 605. While the Board ultimately denied the appel-
lant’s appeal, it concluded that the AJ erred by concluding
that it lacked jurisdiction over the appellant’s claim. Id.
at 607. The Board determined that the agency had not
violated appellant’s right to compete because the appel-
lant was not qualified for the position and the appellant
had failed to provide any evidence or arguments that he
met the requirements. Id. at 608. In other words, the
Board analyzed whether the appellant’s preference rights
were violated when the agency determined that he was
not qualified for the position. The Board concluded that
appellant’s preference rights were not violated because he
failed to provide any evidence or arguments suggesting
that he was in fact qualified for the position, even under
all preference-eligible criteria. Id. at 607–08.
Similarly, in Phillips, the Board examined whether
the agency violated appellant’s right to compete by im-
properly concluding that he was not qualified for the
position. 110 M.S.P.R. at 187. The Board explained that
there was no evidence in the record that demonstrated
11 LAZARO v. VA
that the agency had considered whether appellant’s
experience made him qualified for the position. Instead,
“it appears from the agency’s submission that it relied on
the single fact that the appellant was a GS-6 to conclude
that he did not have the minimum qualifications for a GS-
8 position.” Id. at 188. In light of this fact, the Board
remanded the case, instructing the AJ to “direct the
agency to provide evidence and argument explaining
whether it considered the possibility that, for the GS-8
position, the appellant's prior work experience qualified
as specialized experience of 1 year equivalent to the next
lower grade level.” Id. at 190. This inquiry is nearly
identical to that sought by Mr. Lazaro.
Here, the record indicates that the Human Resources
Specialist who reviewed Mr. Lazaro’s application con-
cluded that Mr. Lazaro did not meet the specialized
experience requirements for the position because his
“experience as an assistant Automated Data Processing
Applications Coordinator for 6 months . . . did not fulfill
the experience requirements for the position at the GS-11
level.” App. 44. There is no reference in the record indi-
cating that Mr. Lazaro’s other valuable experience was
considered in accordance with CFR § 302.302(d). Mr.
Lazaro argues at length, moreover, that, if his experience
is taken into account, he is qualified for the position.
Pet’r’s Br. 10–12. On the basis of these arguments and
the evidence submitted by Mr. Lazaro, we conclude that
the Board has jurisdiction to determine whether the VA
properly afforded Mr. Lazaro the right to compete for the
IT specialist job and properly determined, in accordance
with 5 C.F.R. § 302.302(d), that Mr. Lazaro was not
qualified for the position.
The Board committed legal error by concluding that
the AJ properly determined that the Board lacked juris-
diction over Mr. Lazaro’s claim and that the AJ’s analysis
LAZARO v. VA 12
was not erroneous. Because the record contains insuffi-
cient evidence for this court to determine whether Mr.
Lazaro’s claims have merit, and because his claims have
not been addressed on the merits by either the AJ or the
Board, we vacate and remand this case for further consid-
eration in accordance with this opinion. 3
VACATED AND REMANDED.
3 To the extent Mr. Lazaro attacks the Board’s deci-
sion on alternative grounds, we find those arguments
moot in light of our decision to remand the action to the
Board for further inquiry.