Dwayne L. Lester v. Department of Veterans Affairs
Background
- Dwayne L. Lester, a preference‑eligible veteran, appealed under the Veterans Employment Opportunities Act (VEOA) after the Department of Veterans Affairs posted two concurrent vacancy announcements for a Supervisory Visual Information Specialist: one limited to agency (internal) employees and one open to status candidates (merit promotion and VEOA eligibles).
- Lester alleged the internal announcement unlawfully denied his right to apply and violated 5 U.S.C. § 3304(f)(4); he had exhausted his DOL remedy, which declined further action.
- The agency accepted and considered Lester’s application under the concurrent status announcement, placed him on the certificate of eligibles with his CPS veteran preference noted, but did not select him.
- The administrative judge denied corrective action under VEOA, finding Lester was considered under the open announcement and that agencies may limit areas of consideration so long as veterans can compete when outside applicants are accepted.
- On review the Board addressed jurisdiction: it found Lester had exhausted DOL and was a preference‑eligible veteran, and held Lester made a nonfrivolous allegation under § 3304(f)(4) (so merits had to be reached), but ultimately found no statute/regulation relating to veterans’ preference was violated and denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board has VEOA jurisdiction over a right‑to‑compete claim | Lester alleged denial of right to compete because internal announcement excluded outside applicants | Agency argued Lester was considered under the status announcement; no denial occurred | No jurisdiction for a § 3304(f)(1) right‑to‑compete claim because Lester did not allege the agency accepted outside applicants and denied him the chance to compete under that scheme |
| Whether Board has VEOA jurisdiction over a veterans’ preference claim under § 3330a(a)(1)(A) | Lester alleged agency violated § 3304(f)(4) by limiting the area of consideration to agency employees, excluding him | Agency argued § 3304(f)(4) applies only when area of consideration includes the Federal workforce; here it was limited to current agency employees and Lester was considered under another announcement | Jurisdiction established: Lester made a nonfrivolous allegation under § 3304(f)(4), so the Board adjudicated the merits |
| Whether § 3304(f)(4) required agency to allow Lester to apply to an internal‑only announcement | Lester argued veterans must be allowed to apply for all merit promotion announcements when internal only posting exists | Agency argued § 3304(f)(4) requires notice only when area includes the Federal workforce; internal‑only area of consideration does not trigger the provision | Held for agency: § 3304(f)(4) does not apply to announcements limited to current agency employees; Lester’s reliance on that provision is misplaced |
| Whether VEOA required agency to consider Lester despite internal posting | Lester contended internal posting effectively denied his veterans’ preference rights | Agency showed Lester was considered under a separate status announcement and his veteran preference was applied | Held for agency: Lester was considered and referred under the open announcement; no violation of statute or regulation relating to veterans’ preference was proven |
Key Cases Cited
- Oliver v. Department of Transportation, 1 M.S.P.R. 382 (1980) (presumption of administrative adjudicator impartiality)
- Ali v. Department of the Army, 50 M.S.P.R. 563 (1991) (bias must be extrajudicial to disqualify an administrative judge)
- Rolon v. Department of Veterans Affairs, 53 M.S.P.R. 362 (1992) (ruling against a party is insufficient to show bias)
- Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409 (2010) (jurisdictional elements for VEOA right‑to‑compete claims)
- Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 (2010) (plaintiff must prove jurisdictional elements by preponderant evidence)
- Mann v. Department of the Army, [citation="450 F. App'x 970"] (Fed. Cir. 2011) (VEOA does not give veterans opportunity to compete for positions for which agencies will not accept outside applicants)
- Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (jurisdictional standard for VEOA veterans’ preference claims)
- Isabella v. Department of State, 106 M.S.P.R. 333 (2007) (proof standard for VEOA § 3330a(a)(1)(A) claims)