                            UNITED STATES OF AMERICA
                         MERIT SYSTEMS PROTECTION BOARD


     DWAYNE L. LESTER,                                DOCKET NUMBER
                  Appellant,                          DC-3330-15-0379-I-1

                    v.

     DEPARTMENT OF VETERANS                           DATE: December 22, 2016
       AFFAIRS,
                 Agency.



              THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dwayne L. Lester, Laurel, Maryland, pro se.

           Luis E. Ortiz, Orlando, Florida, for the agency.


                                            BEFORE

                               Susan Tsui Grundmann, Chairman
                                  Mark A. Robbins, Member


                                        FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied   his    request   for   corrective   action   under   Veterans   Employment
     Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fa ct;


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                         2

     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.        Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).             After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as expressly MODIFIED by
     this Final Order to address the jurisdictional issue, we AFFIRM the
     initial decision.
¶2         The appellant filed a VEOA appeal alleging that the agency violated his
     veterans’ preference rights by issuing a vacancy announcement limited to agency
     employees only. Initial Appeal File (IAF), Tabs 1, 9 at 2. The appellant argued
     that he should be allowed to apply for all vacancies because he is a
     preference-eligible veteran. Id. He also argued that the agency’s action denied
     his right to apply for the position in violation of 5 U.S.C. § 3304(f)(4). 2 IAF,
     Tab 9 at 2. He enclosed with his appeal a letter from the Department of Labor’s
     (DOL) Veterans’ Employment and Training Service dated January 8, 2015,
     terminating its investigation of his veterans’ preference complaint and concluding
     that the agency followed proper procedures in posting its open position. IAF,
     Tab 1 at 31.

     2
       Section 3304(f)(4) states that: “[t]he area of consideration for all merit promotion
     announcements which include consideration of individuals of the Federal workforce
     shall indicate that preference eligibles and veterans who have been separated from the
     armed forces under honorable conditions after 3 years or more of active service are
     eligible to apply. The announcements shall be publicized in accordance with” 5 U.S.C.
     § 3327.
                                                                                          3

¶3         The administrative judge issued an order setting forth the jurisdictional
     requirements under VEOA, and she ordered the appellant to file evidence and
     argument establishing the Board’s jurisdiction. IAF, Tab 2 at 2-3. The agency
     responded by filing a motion to dismiss the appeal for lack of jurisdiction because
     the appellant failed to make a nonfrivolous allegation that the agency denied his
     veterans’ preference rights or his opportunity to compete. 3 IAF, Tab 8 at 5. The
     agency argued that the appellant was afforded his veterans ’ preference rights
     because it accepted and considered his application for the Supervisor Visual
     Information Specialist position pursuant to vacancy announcement ZY -14-
     MB‑1263216, which was open to “status candidates (merit promotion and VEOA
     eligibles).” Id.
¶4         The agency stated that the appellant was deemed qualified f or the position
     and his name was placed on the certificate of eligibles and forwarded to the
     selecting official, although he was not selected.        Id. at 5, 16.    The agency
     provided a copy of the certificate of eligibles rating the appellant as an eligible
     candidate for the announced vacancy and noting his CPS 4 veterans’ preference.
     Id.   The agency also provided a copy of vacancy announcement ZY-14-
     MB‑1263216, which advised current agency employees to apply under vacancy
     announcement ZY-14-MB-1258351. Id. at 21. In response, the appellant argued
     that the agency violated his right, as a preference‑eligible veteran, to apply for
     positions that are open to agency employees only. IAF, Tab 9 at 4.
¶5         Without making an explicit ruling on the issue of jurisdiction, the
     administrative judge issued an initial decision based on the written record and

     3
       The agency set forth the criteria required to establish the Board’s jurisdiction in a
     VEOA appeal based on an alleged violation of veterans’ preference rights and an
     alleged denial of a right to compete for a position. IAF, Tab 8 at 4-5.
     4
        Preference eligible veterans with a compensable service -connected disability
     of 30 percent or more are placed in the “CPS” preference group. See Veterans’
     Preference, FedsHireVets, https://www.fedshirevets.gov/job/vetpref/ (last visited on
     Dec. 20, 2016).
                                                                                        4

     denied the appellant’s request for corrective action under VEOA . IAF, Tab 11,
     Initial Decision (ID) at 5. The administrative judge found that the agency issued
     two announcements for the position, one open to internal candidates only and one
     open to status candidates, including veterans. ID at 4. The administrative judge
     also found that no law or regulation prohibited the agency from limiting areas of
     consideration for its vacancy announcement, as long as veterans were allowed to
     compete when the agency sought candidates from outside its own workforce. Id.
     He further found it undisputed that the appellant competed for the positi on at
     issue under the announcement open to status candidates.          Id.   Because the
     appellant was considered and referred for the position he sought, the
     administrative judge found no merit to his contention that the agency denied his
     veterans’ preference rights. ID at 5.
¶6         The appellant filed a petition for review restating his argument that
     preference‑eligible veterans have a right to compete for all merit promotion
     vacancy announcements without limitation.          Petition for Review (PFR) File,
     Tab 1 at 4, 6. The appellant emphasizes that he is not challenging the agency’s
     selection process, and he argues that the administrative judge is biased in favor of
     the agency and ignored his claim that he was denied the right to compete. Id.
     at 2, 4. The agency responded in opposition to his petition. PFR File, Tab 3.
     The appellant has not established that the administrative judge was biased.
¶7         In making a claim of bias or prejudice against an administrative judge, a
     party must overcome the presumption of honesty and integrity that accompanies
     administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
     382, 386 (1980). The party must show that any such bias constitutes extrajudicial
     conduct rather than conduct arising in the administrative proceedings before him.
     Ali v. Department of the Army, 50 M.S.P.R. 563, 568 (1991).         On review, the
     appellant makes the conclusory argument that the Board has cheated veterans out
     of their rights “to help the Agencies do what they want.” PFR File, Tab 1 at 4.
     The   appellant’s   argument   appears   to   be    mere   disagreement   with   the
                                                                                            5

     administrative judge’s denial of his request for corrective action under VEOA
     based on applying the law to the undisputed facts alleged on appeal. The fact t hat
     the administrative judge ruled against the appellant is not sufficient evidence to
     show bias. Rolon v. Department of Veterans Affairs, 53 M.S.P.R. 362, 366-67
     (1992). We therefore reject the appellant’s suggestion that the Board is biased in
     favor of the agency.
     The appellant has not established Board jurisdiction under VEOA over his claim
     alleging a denial of his right to compete.
¶8         The existence of the Board’s jurisdiction is a threshold issue in adjudicating
     an appeal, and the Board may raise the issue of jurisdiction at any time during a
     Board proceeding. Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409,
     ¶ 4 (2010). The administrative judge denied the appellant’s request for corrective
     action under VEOA, without specifically adjudicating the jurisdictional issue.
     We find that the issue of jurisdiction must be addressed on review.
¶9         The Board has jurisdiction over two types of VEOA claims: (1) the denial
     of a right to compete; and (2) the violation of a statute or regulation relating to
     veterans’ preference.      See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference
     claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims).            To
     establish Board jurisdiction over this appeal based on a “right to compete” claim
     under 5 U.S.C. § 3330a(a)(1)(B), the appellant must: (1) show that he exhausted
     his remedy with DOL and (2) make nonfrivolous allegations that (i) he is a
     veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took
     place on or after the December 10, 2004 enactment date of the Veterans’ Benefits
     Improvement Act of 2004, and (iii) the agency denied him the opportunity to
     compete under merit promotion procedures for a vacant position for which the
     agency accepted applications from individuals outside its own workforce in
     violation of 5 U.S.C. § 3304(f)(1). 5 Becker, 115 M.S.P.R. 409, ¶ 5. To prevail on


     5
      One type of selection process is the merit promotion process, which is used when a
     position is to be filled by an employee of the agency or by an applicant from outside the
                                                                                            6

      the merits in a right-to-compete claim under 5 U.S.C. § 3330a(a)(1)(B), the
      appellant must prove the jurisdictional elements by preponderant evidence.
      Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 19 (2010).
¶10         The appellant proved that he had exhausted his remedy with DOL, and he
      made nonfrivolous allegations that he is a preference-eligible veteran and that the
      action at issue took place after December 10, 2004.         IAF, Tab 1 at 23-24, 31,
      Tab 9 at 5, 14-15.     However, the appellant does not allege that the agency
      violated 5 U.S.C. § 3304(f)(1) by denying him the opportunity to compete under
      merit promotion procedures for a vacant position for which the agency accepted
      applications from individuals outside its own workforce. IAF, Tab 9 at 1. He
      alleges that the agency denied him the right to apply for a posit ion under a
      vacancy announcement limited to applicants from within its own workforce in
      violation of 5 U.S.C. § 3304(f)(4). IAF, Tab 9 at 15; PFR File, Tab 1 at 4, 6. We
      therefore find that the appellant has failed to make a nonfrivolous allegation of
      jurisdiction under VEOA based on the denial of a right to compete. 6
¶11         To establish Board jurisdiction over a veterans’ preference appeal brought
      pursuant to 5 U.S.C. § 3330a(a)(1)(A), an appellant must:            (1) show that he
      exhausted his remedy with DOL; and (2) make nonfrivolous allegations that (i) he
      is a preference eligible within the meaning of VEOA, (ii) the action(s) at issue
      took place on or after the 1998 enactment date of VEOA, and (iii) the agency
      violated his rights under a statute or regulation relating to veterans’ preference.
      Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).
      An appellant need not state a claim upon which relief can be granted for the
      Board to have jurisdiction over a VEOA claim.          Slater v. U.S. Postal Service,

      agency who has “status” in the competitive service. See 5 C.F.R. § 335.103(b)(1); see
      also Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶ 9 (2005).
      6
        Although the appellant also claimed discrimination based on age, race, and disability,
      the Board has no authority to review discrimination claims covered under 5 U.S.C.
      § 7702(a)(1) in VEOA appeals. IAF, Tab 1 at 33, 35; see Ruffin v. Department of the
      Treasury, 89 M.S.P.R. 396, ¶ 12 (2001).
                                                                                         7

      112 M.S.P.R. 28, ¶ 5 (2009). To prevail on the merits in a claim under 5 U.S.C.
      § 3330a(a)(1)(A), the appellant must prove the jurisdictional elements by
      preponderant evidence.     Isabella v. Department of State, 106 M.S.P.R. 333,
      ¶¶ 21-22 (2007), aff’d on recons., 109 M.S.P.R. 453 (2008).
¶12         Because the appellant exhausted his claims with            DOL and made
      nonfrivolous allegations that he is a preference-eligible veteran and that the
      action at issue took place after the enactment date of VEOA, the only remaining
      jurisdictional issue is whether the appellant made a nonfrivolous allegation that
      the agency violated his rights under a statute or regulation rel ating to veterans’
      preference. The appellant alleged that the agency vio lated 5 U.S.C. § 3304(f)(4)
      by refusing to consider his application for a Supervisory Visual Information
      Specialist position under job announcement ZY-14-MB-125835 because the
      applicant pool was limited to agency employees, and he was not an agency
      employee. IAF, Tab 9 at 15.
¶13         As previously stated, pursuant to 5 U.S.C. § 3304(f)(4), “[t]he area of
      consideration for all merit promotion announcements which include consideration
      of individuals of the Federal workforce shall indicate that preference eligibles and
      veterans who have been separated from the armed forces under honorable
      conditions after 3 years or more of active service are eligible to apply.”      The
      express language of section 3304(f)(4) relates to veterans’ preference.         We
      therefore find that the appellant made a nonfrivolous allegation of jurisdiction
      based on his claim that the agency violated section 3304(f)(4) by refusing to
      consider his application under a vacancy announcement limiting the area of
      consideration to agency employees only. Accordingly, we must adjudicate the
      merits of this claim.
¶14         VEOA provides in pertinent part that “veterans . . . may not be denied the
      opportunity to compete for vacant positions for which the agency making the
      announcement will accept applications from individuals outside its own
      workforce under merit promotion procedures.” 5 U.S.C. § 3304(f)(1) (emphasis
                                                                                            8

      added); Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006)
      (finding that VEOA prohibits an agency from denying a preference eligible the
      opportunity to compete). Here, the appellant does not dispute the administrative
      judge’s finding that the agency considered his application for the same
      Supervisory Visual Information Specialist position under the concurrently issued
      job announcement ZY-14-MB-1263216, which was open to status candidates
      (merit promotion and VEOA eligibles), and the record reflects that his veterans’
      preference was considered in the selection process. IAF, Tab 8 at 5, 21; ID at 4.
¶15         Moreover, the appellant’s contention that the agency violated his veterans’
      preference rights under 5 U.S.C. § 3304(f)(4), by limiting consideration for the
      position at issue to individuals within the agency, is without merit. See Mann v.
      Department of the Army, 450 F. App’x 970, 973 (2011). His reliance on 5 U.S.C.
      § 3304(f)(4) is misplaced. That provision only requires agencies to indicate that
      preference eligibles and veterans may apply when the area of consideration under
      a   merit   promotion   announcement      includes   “individuals    of   the   Federal
      workforce.” 7 Id., n.1. The area of consideration under the job announcement at
      issue was limited to current employees of the agency, not the entire Federal
      workforce, and therefore 5 U.S.C. § 3304(f)(4)did not apply.
¶16         Because the appellant has failed to prove by preponderant evidence that the
      agency violated a statute or regulation relating to veterans’ preference, we deny
      his request for corrective action under VEOA.




      7
        If the Board were to interpret the meaning of 5 U.S.C. § 3304(f)(4) to require that an
      agency must consider applications from preference‑eligible veterans outside of the
      area of consideration stated in a merit promotion announcement open to agency
      employees only, it would render superfluous 5 U.S.C. § 3304(f)(1). See generally
      Mann, 450 F. App’x at 973 (observing that VEOA does “not provide veterans an
      opportunity to compete for vacant positions for which the agency making the
      announcement will not accept applications from individuals outside its
      own workforce”).
                                                                                   9

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the followin g address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federa l Circuit. The
                                                                                 10

Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
