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 Department 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 Order of the Merit Systems Protection Board (“the Board”) 

that denied his claim for relief under the Veterans Employment Opportunities Act (“VEOA”). In reaching this 

conclusion, the Board found no error in the Administrative 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 specialist position with the Miami VA Healthcare System. 

Appendix (“App.”) 60. According to the Vacancy Announcement, to be qualified for this position, the applicant needed “[o]ne (1) year of specialized experience 

equivalent to at least the GS-9 level in the Federal Service . . . .” App. 80. The announcement explained that 

education could be used as a substitute for this experience, 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 degree. Id. On September 2, 2009, Mr. Lazaro was informed 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. Summarizing 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 performed 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 because his “argument challenges the merits of his nonselection,” 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 jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

I. 

Mr. Lazaro challenges the Board’s denial of his petition 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 without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 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 regulation. 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, creating special preference and protection for returning veterans 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 recruitment appointments, and for subsequent career-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, moreover, a preference eligible veteran is entitled to be credited for all valuable experience, including experience 

gained “in religious, civic, welfare, service, and organizational 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 organizational 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 Numbered 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 appointment 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 determined that he was not qualified for the IT specialist 

position.2

It is important to keep in mind that this case was decided on jurisdictional grounds, and that the AJ conducted 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 determination, 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 nonselection 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 graduate-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 eligibility, 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 experience, including experience gained in religious, 

civic, welfare, service, and organizational activities, regardless of whether pay was received 

therefore. 

5 C.F.R. § 302.302(d). 

Here, there is no question that experience was a factor 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 determine 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 discrimination 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 analyze 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 decision. There is simply no way to analyze whether a veteran’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 appellant’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 appellant 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 improperly 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 GS8 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 concluded 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 indicating 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 jurisdiction over Mr. Lazaro’s claim and that the AJ’s analysis 
LAZARO v. VA 12

was not erroneous. Because the record contains insufficient 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 consideration in accordance with this opinion.3

VACATED AND REMANDED. 

 3 To the extent Mr. Lazaro attacks the Board’s decision on alternative grounds, we find those arguments 

moot in light of our decision to remand the action to the 

Board for further inquiry.