Lazaro v. Department of Veterans Affairs
2012 U.S. App. LEXIS 1906
| Fed. Cir. | 2012Background
- Lazaro applied on August 10, 2009 for an IT specialist job at the Miami VA Healthcare System.
- The vacancy required one year of specialized experience at GS-9 or education substitution (Ph.D. or three years of graduate education).
- VA told Lazaro on September 2, 2009 that he was not considered for the position, finding he lacked the specialized experience.
- Lazaro exhausted remedies with the Department of Labor and filed a VEOA appeal with the Board claiming veteran-preference rights were violated.
- The Administrative Judge concluded the Board lacked jurisdiction to review the nonselection on merits, and the Board denied review.
- This court vacates and remands for merits-focused adjudication under 5 C.F.R. § 302.302(d) and VEOA procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board had jurisdiction over Lazaro’s VEOA claim. | Lazaro argues the VA violated veteran-preference rights under 5 C.F.R. § 302.302(d). | VA/Board contends the Board lacks jurisdiction to review nonselection merits. | Jurisdiction exists; remand for merits review. |
| Whether Lazaro’s experience could be credited under § 302.302(d). | Lazaro asserts his prior experience should be credited as valuable experience. | VA did not sufficiently consider Lazaro’s relevant experience under § 302.302(d). | The Board erred by not addressing § 302.302(d) merits; remand necessary. |
| Whether Ruffin controls the jurisdictional scope of VEOA review. | Ruffin misapplied to bar merits analysis of veteran-preference claims. | Ruffin limits Board review to preference-rights violations; merits analysis not required. | Ruffin does not bar review here; remand proper. |
| Whether the AJ and Board analyzed Lazaro’s claims consistent with controlling law. | The AJ/Board misapplied § 302.302(d) and concluded lack of jurisdiction. | Ajurisdictional ruling, not merits, was appropriate. | Legal error; vacate and remand for proper merits analysis. |
Key Cases Cited
- Ruffin v. Dept. of the Treasury, 89 M.S.P.R. 396 (2001) (Board lacked authority to review certain discrimination claims under VEOA)
- Phillips v. Dep't of Navy, 110 M.S.P.R. 184 (2008) (remand to consider whether experience qualifies under § 302.302(d))
- Clarke v. Dep't of Navy, 94 M.S.P.R. 604 (2003) (Board may determine eligibility and whether preference rights were violated when not qualified)
- Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210 (2003) (VEOA exhaustion and initiation standards; jurisdiction standards)
- Joseph v. FTC, 505 F.3d 1380 (2007) (statutory/regulatory framework for veterans’ preference)