Lazaro v. Department of Veterans Affairs , 565 F. App'x 900 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MANUEL LAZARO,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3057
______________________
Petition for review of the Merit Systems Protection
Board in No. AT3330-10-1005-M-1.
______________________
May 13, 2014
______________________
MANUEL LAZARO, of Homestead, Florida, pro se.
DOUGLAS G. EDELSCHICK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
FRANKLIN E. WHITE, Assistant Director.
______________________
Before RADER, Chief Judge, DYK, and O’MALLEY, Circuit
Judges.
2 LAZARO v. DVA
PER CURIAM.
Manuel Lazaro appeals from a final order of the Merit
Systems Protection Board (Board) denying his claim for
relief under the Veterans Employment Opportunities Act
(VEOA). Mr. Lazaro’s case returns to us after we remand-
ed it to Board for a decision on the merits. Lazaro v. Dep’t
of Veterans Affairs, 666 F.3d 1316, 1321 (Fed. Cir. 2012).
On remand, the Board found that the Department of
Veterans Affairs (VA or the agency) properly considered
all of the appellant’s experience under 5 C.F.R.
§ 302.302(d) and correctly determined that he was not
qualified for the position he sought. We affirm.
BACKGROUND
On August 10, 2009, Mr. Lazaro, a preference eligible
veteran, applied for an Information Technology (IT)
specialist position with the Miami VA Healthcare System.
The vacancy announcement for this position described its
“qualification requirements” as “[o]ne (1) year [of] special-
ized experience equivalent to at least the GS–9 level in
[the] Federal Service.” Respondent’s Joint Appendix (R.A.)
63. The announcement also stipulated that certain levels
of education could be substituted for this year of “special-
ized 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.
Pursuant to 30 U.S.C. § 4214(b), Mr. Lazaro was eli-
gible for certain veterans’ preferences. Mr. Lazaro’s
application stated that he had six months of experience as
a medical coder at the GS–7 level with collateral duties as
an assistant Automated Data Processing Application
LAZARO v. DVA 3
Coordinator (ADPAC). 1 His application also specified that
he had fifty-three credits of relevant educational experi-
ence. Finally, in the “Other Qualifications” section of his
application, Mr. Lazaro indicated that he had experience
as a “Computer Repair Tech[nician]” and had received
“various incentive awards.” R.A. 32. The Human Re-
sources Specialist who reviewed Mr. Lazaro’s application
concluded that his experiences and education level fell
short of the full year of specialized experience at the GS–9
level, or the educational equivalent thereof, necessary for
the IT Specialist position. Accordingly, on September 2,
2009, Mr. Lazaro was informed by letter that he was not
considered for the position.
On August 30, 2010, after exhausting his rights before
the Department of Labor, Mr. Lazaro filed an appeal with
the Board, asserting that the VA violated 38 U.S.C.
§ 4214(b) and 5 C.F.R. § 302.302(d) when it did not select
him for the position of IT specialist. The Administrative
Judge (AJ) concluded that the Board lacked authority to
review the merits of the agency’s non-selection of Mr.
1 Mr. Lazaro’s assistant ADPAC position does not
appear to have possessed a specific GS level designation,
but he contends that this position carried a designation
equivalent to the GS–9 level. According to the Human
Resources Specialist that reviewed Mr. Lazaro’s applica-
tion, “there is no grade level requirement for a service’s
designated ADPAC, nor are the duties classified at any
particular grade level.” R.A. 28. Nevertheless, Mr. Lazaro
contends that other services, such as the Fiscal Service,
do designate a GS level for their ADPACs: “appellant
submits two promotion announcements of Fiscal Systems
Analyst[s], showing that in the Fiscal Service they desig-
nate ADPAC[s] at the GS–9 level.” Appellant’s Br. 15. Mr.
Lazaro has not submitted further evidence that his par-
ticular ADPAC position was designated at the GS–9 level.
4 LAZARO v. DVA
Lazaro. The Board affirmed, and Mr. Lazaro appealed to
this court. Reversing, we explained that “[t]here 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.” Lazaro, 666
F.3d at 1320. We then remanded Mr. Lazaro’s case to the
Board for further consideration.
On remand, the Board allowed the parties to submit
supplemental evidence and argument regarding the
propriety of the agency’s determination. The government
submitted an additional declaration from the Human
Resources Specialist that reviewed Mr. Lazaro’s applica-
tion, and Mr. Lazaro submitted additional documentation
of his qualifications for the position at issue—
documentation which he did not include in his original
application. On November 15, 2012, after reviewing the
additional information presented, the Board denied Mr.
Lazaro’s petition for review. The Board concluded that the
declaration of the Human Recourses Specialist was credi-
ble, and “any asserted prior experience that the appellant
raised for the first time on appeal” was “irrelevant be-
cause the appellant did not include it in his application
for the position.” R.A. 10. Mr. Lazaro filed an appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
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) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c).
As we explained in our previous decision, the Veter-
ans’ Preference Act of 1944, Pub. L. No. 359, ch. 287, 58
Stat. 390, gives preference eligible veterans certain ad-
vantages when seeking federal employment. Lazaro, 5
LAZARO v. DVA 5
F.3d at 1318 (citing Mitchell v. Cohen, 333 U.S. 411, 418–
19 (1948)). In particular, agencies must comply with
special statutes and regulations when determining
whether a particular 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, 189 (2008). For example, when experience
is a factor in determining qualification for a posted posi-
tion, a preference eligible veteran is entitled to be credited
for all of his valuable experience, including experience
gained “in religious, civic, welfare, service, and organiza-
tional activities, regardless of whether pay was received
therefor.” 5 C.F.R. § 302.302(d); see also 5 U.S.C. § 3311(2)
(“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 organiza-
tional activities, regardless of whether he received pay
therefor.”). If an agency hiring decision violates these
rights, preference eligible veterans may secure relief by
filing a claim challenging the agency’s decision. 5 U.S.C.
§ 3330a.
In this case, only one qualification is at issue: whether
Mr. Lazaro possesses “[o]ne (1) year [of] specialized expe-
rience equivalent to at least the GS–9 level in [the] Fed-
eral Service [or the educational equivalent thereof].” R.A.
63. Mr. Lazaro continues to argue that the VA did not
comply with 5 C.F.R. § 302.302(d) in determining his
qualifications, and therefore violated his opportunity to
compete for the IT Specialist position under 5 U.S.C.
§ 3304(f)(1).
I
During the remand proceedings, the agency submitted
an additional declaration from the Human Resources
6 LAZARO v. DVA
Specialist who reviewed Mr. Lazaro’s application and
accompanying documents, John Mondragon. The declara-
tion averred that Mr. Mondragon fully reviewed Mr.
Lazaro’s application, including Mr. Lazaro’s six months of
experience as a medical coder, his experience as an assis-
tant ADPAC, his various awards, and his experience as a
Medical Specialist in the Army. Mr. Mondragon also
examined Mr. Lazaro’s educational achievements, includ-
ing his certification of completion for a VA Learning
University (VALU) Course for Basic Networking and 53
hours of study at Miami Dade College. Despite these
achievements, Mr. Mondragon ultimately concluded that
Mr. Lazaro was “unable to substitute education . . . for
experience.” R.A. 30.
The Board found that Mr. Mondragon’s declaration
constituted a “detailed and persuasive explanation as to
why he found the appellant not qualified for the position.”
R.A. 9. Relying on Mr. Mondragon’s statement as well as
other evidence, the Board held that the agency properly
“credited and considered all of the valuable experience
reflected in the appellant’s application for the position,”
R.A. 9, and “properly determined, in accordance with 5
C.F.R. § 302.302(d), that [Mr. Lazaro] was not qualified
for the position.” R.A. 10.
Mr. Lazaro has not submitted any evidence contra-
dicting these findings. The Board’s finding that the decla-
ration is credible and indicates that the agency considered
all of Mr. Lazaro’s relevant experience in accordance with
§ 302.302(d) is supported by substantial evidence.
II
Mr. Lazaro also argues that the Board erroneously re-
jected as irrelevant evidence of Mr. Lazaro’s qualifications
that he failed to submit with his original job application
but presented to the Board on appeal. Specifically, Mr.
Lazaro contends that the Board should have considered a
LAZARO v. DVA 7
certificate for 600 hours of work experience as a micro-
computer technician that he presented on appeal to the
Board. 2 The government argues that this document
should not be considered because Mr. Lazaro failed to
submit it with his application for the position at issue.
Mr. Lazaro asserts that he did not submit the certifi-
cate documenting his 600 hours of work as a micro-
computer technician with his application because the
government form he completed to apply for the IT Special-
ist position, Form 612, instructed him not to send docu-
mentation unless requested. Form 612 reads in pertinent
part:
Other Qualification: Job-related training courses
(give title and year). Job-related skills (other lan-
guages, computer software/hardware, tools, ma-
chinery, typing speed, etc.). Job-related honors,
2 Mr. Lazaro also argues that the Board should con-
sider documents relating to qualifications Mr. Lazaro
received after he applied for the position at issue as well
as documents he submitted for the first time in the pre-
sent appeal. Documents relating to qualifications Mr.
Lazaro received after his application for the IT Specialist
position are irrelevant evidence. Documents that were not
submitted to the Board during the remand, but instead
submitted directly to this court on appeal, are also irrele-
vant. See Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d
1280, 1283 (Fed. Cir. 2011) (“Because those items were
not presented to the Board, they are not part of the record
on appeal and are not properly before us.”); Mueller v.
U.S. Postal Serv., 76 F.3d 1198, 1201–02 (Fed. Cir. 1996)
(“Because we are limited to reviewing decisions of the
Board based on the record before the deciding official, we
decline to base our judgment on evidence that was not
part of the record before the administrative judge.” (cita-
tion omitted)).
8 LAZARO v. DVA
awards, and special accomplishments (publica-
tion, membership in professional/honor societies,
leadership activities, public speaking and perfor-
mance awards). Give dates, but do not send docu-
ments unless requested.
R.A. 32 (emphasis added). Based on these directions,
Lazaro simply wrote “Computer Repair Tech., Basic
Networking, Various Incentive Awards,” R.A. 32, in the
space directly below these instructions. 3 He now contends
that he “was never afforded the opportunity to submit all
of his additional supporting documents because he was
following the instructions stated on Form 612[] Section G
‘Do not send your documentation unless requested.’”
Appellant’s Br. 14.
Neither the agency nor the Board is required to con-
sider work experience that the veteran did not describe in
accordance with the agency’s instructions in his applica-
tion. Form 612 provided Mr. Lazaro with sufficient oppor-
tunity to describe his 600 hours of work as a computer
technician and, indeed, expressly requested that he list
the dates of such experience. Despite these instructions,
Mr. Lazaro failed to communicate the nature and length
of his work experience in a way that would enable an
official reviewing his application to evaluate it. Although
Form 612 requests that the applicant not send documen-
tation unless requested, this instruction does not excuse
the appellant’s failure to provide an adequate description
of his relevant experiences and the corresponding dates.
The agency’s decision not to hire Mr. Lazaro must be
evaluated based on the information he provided to the
agency. The government was not required to investigate
3 Additional space for descriptions of qualifications
was provided on following page of Form 612.
LAZARO v. DVA 9
Mr. Lazaro’s perfunctory and dateless description of his
“other qualifications.” R.A. 32.
III
Finally, Mr. Lazaro appears to contest the qualifica-
tions of the veteran who eventually received the IT Spe-
cialist position. The qualifications of the veteran whom
the agency hired are irrelevant to this case.
AFFIRMED
No costs.