Dwayne L. Lester v. Department of the Treasury
Background
- Agency (Department of the Treasury/IRS) posted a vacancy for Printing Services Specialist limited to IRS employees on career or career‑conditional appointments.
- Lester (appellant), a preference‑eligible veteran, filed a DOL complaint alleging violation of veterans’ preference rights because he was not allowed to apply; DOL found no violation and informed him of appeal rights to MSPB.
- Lester appealed to the Merit Systems Protection Board under the Veterans Employment Opportunities Act (VEOA). He alleged both a denial of the right to compete under 5 U.S.C. § 3304(f) and a violation of veterans’ preference rights by limiting the area of consideration to agency employees.
- The administrative judge ordered a jurisdictional statement; Lester failed to respond. The AJ denied corrective action without a hearing, finding Lester presented no evidence that the vacancy announcement violated statutes or regulations relating to veterans’ preference.
- On petition for review, the Board: (1) modified the initial decision to hold it has jurisdiction over Lester’s VEOA veterans’ preference claim, and (2) held it lacks jurisdiction over a § 3304(f) right‑to‑compete claim because the agency did not accept outside applications. The Board affirmed the denial of corrective action on the merits.
Issues
| Issue | Lester's Argument | Treasury/Agency's Argument | Held |
|---|---|---|---|
| Jurisdiction over a § 3304(f) "right to compete" claim | Agency violated Lester’s right to compete by excluding preference‑eligibles from the area of consideration | Vacancy limited to agency employees; agency did not accept applications from outside workforce | No jurisdiction: Lester failed to nonfrivolously allege the agency accepted outside applicants, so § 3304(f) claim not cognizable before the Board |
| Jurisdiction over a VEOA veterans’ preference claim (5 U.S.C. § 3330a(a)(1)(A)) | Lester alleged agency violated veterans’ preference by limiting area of consideration to current employees | Agency argued no violation and Lester did not provide evidence; vacancy legitimately limited to agency employees | Jurisdiction exists: Lester exhausted DOL and made nonfrivolous allegations that meet VEOA standards |
| Merits: whether limiting area of consideration violated statutes/regulations relating to veterans’ preference | Lester argued law requires area of consideration to include all preference‑eligible veterans and that he was not permitted to apply | Agency maintained it lawfully limited vacancy to agency employees and Lester was not an agency employee | Held for Agency: Lester failed to prove by preponderant evidence that the vacancy announcement violated any statute or regulation relating to veterans’ preference; denial of corrective action affirmed |
| Procedural adequacy (need for hearing / evidence) | Lester asserted he applied for other agency positions and was qualified; sought hearing | Agency noted no record of Lester applying for this vacancy; AJ found Lester received notice of issues and failed to rebut agency evidence | AJ acted within discretion to decide on written record; no basis to reverse for lack of hearing |
Key Cases Cited
- Abell v. Department of the Navy, 343 F.3d 1378 (Fed. Cir.) (describing scope of § 3304(f) right to compete)
- Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir.) (VEOA jurisdictional standards for veterans’ preference appeals)
- Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir.) (agencies may fill vacancies by authorized methods; limits on challengeability)
- Lis v. U.S. Postal Service, 113 M.S.P.R. 415 (MSPB) (nonfrivolous allegation standard for VEOA appeals)
- Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409 (MSPB) (elements for Board jurisdiction over § 3304(f) right‑to‑compete appeals)
- Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646 (MSPB) (preponderance standard for proving VEOA violations)