Morales v. Department of Homeland Security

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JUAN M. MORALES,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2012-3004
__________________________
Appeal from the Merit Systems Protection Board’s
Decision, Docket No. DA-3330-11-0112-I-1.
__________________________
Decided: April 9, 2012
__________________________
JUAN M. MORALES, of Weston, Florida, pro se.
BARBARA E. THOMAS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, on behalf of respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
CLAUDIA BURKE, Assistant Director.
MORALES v. DHS 2
__________________________
Before RADER, Chief Judge, PLAGER, and WALLACH,
Circuit Judges.
PER CURIAM.
Juan M. Morales appeals the Merit Systems Protec-
tion Board’s (“MSPB” or “Board”) decision denying Mr.
Morales’s petition for review of an administrative judge’s
determination. The administrative judge denied Mr.
Morales’s request for corrective action after determining
that the Department of Homeland Security’s (“Agency”)
decision not to select him for certain vacant positions did
not violate the Veterans Employment Opportunities Act
of 1998 (“VEOA”). We affirm.
I.
Mr. Morales, a preference-eligible veteran, responded
to two vacancy announcements the Agency issued on May
5, 2010 and May 24, 2010. The announcements invited
applications for the position of Investigative Assistant,
GS-5, -6, or -7, with the Agency’s Immigration and Cus-
toms Enforcement component in Laredo, Texas and
Miami, Florida. Specifically, there were three vacancies
in Texas, Job Announcement No. DAL-INV-345506-DEU-
MFJ (“Texas announcement”), and one vacancy in Flor-
ida, Job Announcement No. DAL-INV-349991-DEU-RDD
(“Florida announcement”).
Mr. Morales responded to both announcements for the
position of Investigative Assistant, GS-7. To qualify for
the position at the level of a GS-7, an applicant was
required to “posses one (1) year of specialized experience .
. . equivalent to at least the GS-6 grade level.” The re-
sume Mr. Morales submitted did not list any specific work
experience.
3 MORALES v. DHS
On August 26, 2010, Mr. Morales was notified that he
failed to “meet the minimum education and/or experience
requirements” for the position listed in the Florida an-
nouncement. Because Mr. Morales was not rated a quali-
fied applicant, he was not included on the Certificate of
Eligibles for the GS-7 Investigative Assistant position
associated with that announcement. The Agency ulti-
mately elected not to fill the vacancy.
With respect to the Texas announcement, Mr. Morales
was deemed qualified for the Investigative Assistant
position, GS-7. Mr. Morales was assigned a numerical
rating of 108, highest assigned to any applicant, including
the 10 extra points for being a preference-eligible veteran.
The 108 rating placed Mr. Morales at the top of the Cer-
tificate of Eligibles with the next two applicants, Michelle
Ward and Shelly Madrid, having ratings of 105 and 100,
respectively.
The Agency selected Ms. Ward and Ms. Madrid, who
were also preference-eligible veterans, to fill two of the
three vacancies listed in the Texas announcement. The
Agency thereafter chose not to fill the third vacancy, and
Mr. Morales was notified of his non-selection in a message
dated October 25, 2010.
On October 27, 2010, Mr. Morales filed a timely com-
plaint with the Department of Labor (“DOL”) alleging
that the Agency had passed him over in violation of
veterans’ preference rights. DOL determined that Mr.
Morales’s allegations lacked evidence, and Mr. Morales
sought review of this decision by the Board. In an initial
decision on February 24, 2011, the administrative judge
denied Mr. Morales’s request for corrective action. 1 After
1 With regard to the administrative judge’s ini-
tial decision, the Board noted with disapproval that the
decision to cancel the hearing without issuing a close of
MORALES v. DHS 4
the Board denied Mr. Morales’s petition for review, he
appealed. 2
II.
We have jurisdiction to review the Board’s final deci-
sions under 28 U.S.C. § 1295(a)(9). Our scope of review
for a Board decision, however, is limited. We may only set
aside such a decision if it was “(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) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see
Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1381 (Fed.
Cir. 2004).
Under this standard, we will reverse the Board’s deci-
sion if it is not supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298
(Fed. Cir. 2002) (citations omitted). “The question before
us is not how the court would rule upon a de novo ap-
record order is problematic because the administrative
judge did not afford Mr. Morales an opportunity to submit
additional documents or apprise Mr. Morales that, in
order to be entitled to a hearing, he was required to
demonstrate that there is a genuine issue of material fact.
The Board consequently considered additional documents
that Mr. Morales submitted and found that there is no
genuine dispute of material facts in this appeal. Specifi-
cally, the Board found that no new evidence was submit-
ted and that the administrative judge made no error in
law or regulation that affects the outcome of the case.
The Board’s decision was reasonable. To the extent Mr.
Morales disagrees, we affirm the Board’s decision.
2 In agreeing with the administrative judge’s
decision to deny corrective action, the Board adopted the
reasons set forth in the initial decision.
5 MORALES v. DHS
praisal of the facts of the case, but whether the adminis-
trative determination is supported by substantial evi-
dence in the record as a whole.” Id. (citation omitted).
Absent special circumstances, an agency’s failure to
select an individual for a position is not reviewable. See 5
U.S.C. §§ 7512, 7513. The statute governing agency
procedures for passing over a preference eligible applicant
does not provide for Board review of that decision. See 5
U.S.C. § 3318; 5 C.F.R. § 332.406(g); Lodge v. Dep’t of the
Treasury, 109 M.S.P.R. 614, 618 n. 3 (2008). The Board,
however, may consider claims arising from a non-selection
when the VEOA provides an independent ground for the
exercise of jurisdiction. 5 U.S.C. § 3330a(a)(1)(A). Par-
ticularly, VEOA provides redress for a preference-eligible
veteran “who alleges[, as Mr. Morales does here,] that an
agency has violated . . . [his or her] rights under any
statute or regulation relating to veterans’ preference . . . .”
Id.
Here, the crux of Mr. Morales’s contention is that his
non-selection for the vacancies in Texas and Florida
violated the requirement of selecting a candidate eligible
for employment from “the highest three eligibles on the
certificate who are available for appointment . . . .” 5
C.F.R. § 332.404. 3 As a result, Mr. Morales avers that the
Board failed to take into account facts, applied the wrong
law, and failed to consider important grounds for relief.
3 5 C.F.R. § 332.404, in its entirety, provides:
An appointing officer, with sole regard to merit
and fitness, shall select an eligible for:
(a) The first vacancy from the highest three eligi-
bles on the certificate who are available for ap-
pointment; and
(b) The second and each succeeding vacancy from
the highest three eligibles on the certificate who
are unselected and available for appointment.
MORALES v. DHS 6
The Board’s decision, however, was reasonable and sup-
ported by substantial evidence.
The undisputed facts show that the Agency reasona-
bly selected Ms. Ward and Ms. Madrid, who were prefer-
ence-eligible veterans and two of the three highest
eligibles on the Certificate, to fill two of the three vacan-
cies listed in the Texas announcement. The Agency chose
not to fill the third vacancy, and Mr. Morales was notified
of his non-selection.
Contrary to Mr. Morales’s contention that he should
have been selected for a position based on his numerical
rating, 5 C.F.R. § 332.404 only requires selection of eligi-
bles from any of the highest three candidates listed on the
Certificate of Eligibles. There is no restriction on the
Agency’s ability to choose one preference-eligible candi-
date over another, so long as the candidate selected is
among “the highest three eligibles on the certificate.” 5
C.F.R. § 332.404. Therefore, the Agency had the option to
select Ms. Ward, Ms. Madrid, or Mr. Morales to fill its
vacancies, and the Agency was entitled to select Ms.
Madrid and Ms. Ward to fill two of the three vacancies.
Hence, the Board did not err in finding that the Agency’s
selection process in this instance did not violate VEOA.
In addition, the Agency’s decision to leave the third
vacancy listed in the Texas announcement unfilled is not
contrary to law or regulation. Indeed, the Agency was
only required to afford Mr. Morales an opportunity to
compete with other candidates on the Certificate of Eligi-
bles. See Abell v. Dep’t of Navy, 343 F.3d 1378, 1384 (Fed.
Cir. 2003) (“The VEOA does not guarantee a preference
eligible a position but only an opportunity to compete with
the other candidates on the certificate of eligibles.”)
7 MORALES v. DHS
(citation omitted). 4 Accordingly, while Mr. Morales was
the highest rated candidate on the Certificate of Eligibles
for the Texas Announcement, his non-selection and the
selection of Ms. Ward and Ms. Madrid did not violate any
veterans’ preference laws. Rather, the record shows that
the Board’s decision finding no error in the non-selection
of Mr. Morales was reasonable and supported by substan-
tial evidence. 5
III.
For the reasons above, the Board’s decision denying
Mr. Morales’s petition for review was reasonable and
supported by substantial evidence.
AFFIRMED.
4 The Agency’s decision to leave the positions
listed in the Florida announcement vacant was also not
contrary to law for the same reasons.
5 We further affirm the Board’s decision that it
lacked jurisdiction to entertain Mr. Morales’s additional
arguments brought on appeal. Because Mr. Morales’s
additional arguments do not relate to rights under any
veterans’ preference rights, we affirm. See 5 U.S.C. §§
7512, 7513.