Fonda D. Brown, Alphonso Adams, and Angela D. Napier v. Department of Veterans Affairs

Citations: 247 F.3d 1222; 167 L.R.R.M. (BNA) 2222; 2001 U.S. App. LEXIS 6780Docket: 00-3278

Court: Court of Appeals for the Federal Circuit; April 18, 2001; Federal Appellate Court

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Petitioners Fonda D. Brown, Alphonso Adams, and Angela D. Napier sought judicial review of a final decision from the Merit Systems Protection Board (MSPB) regarding their claims against the Department of Veterans Affairs (DVA) for violations of veterans' preference laws. Brown, a qualified candidate for a Program Support Assistant position, and Napier, an applicant for a Contract Specialist role, both asserted they were denied promotions without being granted their entitled veterans' preference points. Adams was informed he did not meet the time and grade requirements for a Supervisory Police Officer position. The MSPB ruled that veterans' preference applies only to initial appointments or retention in employment, not to promotions or transfers, leading to the dismissal of the petitioners' claims. The Federal Circuit Court affirmed the MSPB's decision, stating the petitioners did not present a valid claim for relief. The court's review is constrained to affirming the MSPB's rulings unless they are found to be arbitrary, capricious, procedurally flawed, or unsupported by substantial evidence.

Petitioners contend that the Board misinterpreted 38 U.S.C. § 4214(a) by ruling that veterans do not receive preference in promotions or transfers. They argue that the statute's objective is to maximize employment and advancement opportunities for disabled veterans and assert that Congress intended to include promotions under this provision. Additionally, they criticize the Board's reliance on the Champion case, claiming it did not address the specific meaning of Section 4214(a) and did not involve a disabled veteran. Petitioners also argue that the Board neglected to consider relevant statutes and regulations, including a regulation from the Office of Personnel Management mandating federal agencies to maximize job opportunities for qualified veterans.

Established law supports the principle of granting veterans preference in some areas of public employment, as outlined in the Veterans' Preference Act of 1944 (VPA), which allows for special point and service credit. However, this preference does not extend to all rights and benefits. The Court of Claims in Crowley v. United States emphasized that promotion decisions are typically within the supervisory discretion of agencies and are not generally subject to judicial review. The Board in Champion echoed this sentiment, asserting that promotion and transfer decisions fall outside the scope of veterans' preference under the VPA. Further, courts have ruled that veterans' preference does not apply to transfers or intra-agency movements, reaffirming that such preference is limited to initial employment. Ultimately, it is confirmed that veterans do not receive preferential treatment regarding promotions or intra-agency transfers under the VPA.

Reliance on 38 U.S.C. § 4214(a) does not support the petitioners' argument. This statute, part of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), was established to ensure the rights of employees returning from military service and to mandate affirmative action for Vietnam War veterans' employment. While VEVRAA promotes veterans' employment and advancement within the federal government, it restricts veterans' preference to initial employment, specifically for "appointments" as indicated in 38 U.S.C. § 4214(b)(1). Agency regulations also focus solely on appointments (5 C.F.R. § 307). The notion of treating intra-agency movements as initial employment is invalidated by precedent (Glenn, 939 F.2d at 1523). Both VPA and VEVRAA do not provide veterans' preference for promotions or intra-agency transfers. Consequently, the Board correctly ruled that the petitioners did not present a claim for which relief could be granted. The Board's final decision is affirmed, with no costs awarded.