NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BEN R. CARRILLO,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2013-3105
______________________
Petition for review of the Merit Systems Protection
Board in No. DE3330120088-I-1.
______________________
Decided: November 13, 2013
______________________
BEN R. CARRILLO, of Chandler, Arizona, pro se.
VERONICA N. ONYEMA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were STUART F. DELERY, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
______________________
Before O’MALLEY, BRYSON, and WALLACH, Circuit Judges.
2 CARRILLO v. DHS
PER CURIAM.
Petitioner Ben Carrillo appeals from the Merit Sys-
tems Protection Board’s (“Board”) final decision upholding
his nonselection for two positions at the Department of
Homeland Security (“DHS” or “agency”). Because the
Board’s decision was supported by substantial evidence,
this court affirms.
BACKGROUND
Mr. Carrillo served in the Marine Corps from 1977 to
1998 and was honorably discharged, making him a pref-
erence eligible veteran. At the time of the events at issue
in this case, he was employed by DHS as a grade level
GS-12 Safety and Occupational Health Specialist. Mr.
Carrillo’s appeal centers on two DHS job announcements.
The first announced position was posted by DHS on
February 26, 2011, as Job Announcement IHC-416825-
KRH-MP. The position was for a Supervisory Safety and
Occupational Health Manager (“supervisor position”), a
GS-14 grade level position. The announcement allowed
for the following categories of individuals to apply:
(1) Current Federal employees with competitive
status or reinstatement eligibility, (2) current and
former Federal employees who meet the estab-
lished criteria in an Office of Personnel Manage-
ment Interchange Agreement, and (3) preference
eligible veterans who have been separated under
honorable conditions after three years or more of
continuous service, per the [Veterans Employment
Opportunities Act (“VEOA”)].
Resp’t’s App. (“App’x”) 77 (citing VEOA, 5 U.S.C. § 3330A
(2006)). The job announcement notified applicants that
the position was a merit promotion and that it was re-
quired that applicants qualify at the GS-14 level. It also
“explained that applicants would qualify at the GS-14
level if they possessed one year of experience that
CARRILLO v. DHS 3
equipped them with the skills needed to perform the job
duties.” App’x 78.
Mr. Carrillo applied for the supervisor position on
March 1, 2011, and the job listing closed on March 12,
2011. On March 16, 2011, the job listing reopened and
Mr. Carrillo was notified by email that it was not neces-
sary for him to resubmit his resume. After evaluating the
applications for this position, Human Resources Specialist
Andrea Bower determined that Mr. Carrillo was at a GS-
12 grade level and that the federal position he had held
prior to going to DHS was at a GS-11 level. Ms. Bower
ultimately determined that Mr. Carrillo did not qualify
for the GS-14 position as he “did not meet the position’s
specialized experience requirements.” App’x 78. DHS
sent Mr. Carrillo a notice that “he did not meet the time-
in-grade requirements of the position” and would not be
placed on the list of eligible candidates. Id. The time-in-
grade coding on the letter was erroneous, and on October
18, 2011, Ms. Bower sent Mr. Carrillo a corrected notice,
informing him that he did not meet the position’s special-
ized experience requirements.
The second job announcement was posted on March
21, 2011, as Job Announcement IHC-447669-kwi-MP, for
a Safety and Occupational Health Manager position
(“team-lead position”), a GS-13 grade level position. The
only persons eligible to apply were “current U.S. Customs
and Border Protection employees with competitive sta-
tus,” because it was a merit promotion position. Mr.
Carrillo applied for this position and DHS placed him on
the Merit Promotion Certificate of Eligibles list. The
posting indicated the availability of five separate team-
lead positions, one for each of five existing Occupational
Safety and Health branches. However, an existing team
member would only be considered for the branch at which
he or she was already employed. Accordingly, because
Mr. Carrillo worked with the Central Branch Team, he
was only considered for the Central Branch.
4 CARRILLO v. DHS
Mr. Carrillo and six other Central Team applicants
interviewed with a three-person panel for the team-lead
position. The panel included the Central Team Supervi-
sor, Bob Hamilton, as well as Dan De Laurentis and Erick
Eastes, supervisors from other branches and both veter-
ans. All of the candidates were interviewed by phone, and
all interviews lasted between fifteen and twenty minutes.
The panel ultimately chose Judy Masura for the Cen-
tral Branch team-lead position, the only candidate who
held a Certified Safety Professional (“CSP”) designation.
A CSP designation is awarded to individuals who satisfy
various experience, testing, and educational require-
ments. Ms. Masura was also the only Central Branch
candidate who was not a veteran. Although Ms. Masura
was not a veteran, the panel members who conducted the
interviews were all favorably impressed with Ms.
Masura’s interview, and found that Mr. Carrillo’s inter-
view was “average” and “OK but unremarkable.” App’x
86. Moreover, the evidence showed that if Ms. Masura
had declined the position, the panel would not have
recommended Mr. Carrillo, but would have recommended
another candidate, who was a veteran.
On December 1, 2011, Mr. Carrillo filed an appeal
with the Board’s Denver Field Office alleging that, re-
garding his two nonselections, DHS (1) violated his veter-
ans’ preference rights under VEOA, and (2) discriminated
against him based on his uniformed service in violation of
the Uniformed Services Employment and Reemployment
Rights Act of 1994, 38 U.S.C. § 4311 (2006) (“USERRA”).
On February 7, 2012, the administrative judge (“AJ”)
issued an order finding that the sixty-day deadline for
challenging nonselection for the supervisor position under
VEOA had already passed. The AJ found in a subsequent
opinion that Mr. Carrillo failed to establish a VEOA claim
for the team-lead position. With regard to Mr. Carrillo’s
USERRA claims, the AJ found that DHS had credited Mr.
Carrillo’s military experience and that Mr. Carrillo failed
CARRILLO v. DHS 5
to show there was any anti-military bias. On April 23,
2012, Mr. Carrillo petitioned the full Board to review the
AJ’s decision. In this appeal, he reasserted his VEOA and
USERRA claims and additionally argued that he was
improperly denied equitable tolling for his VEOA claim as
to the supervisor position. The Board denied Mr. Carril-
lo’s petition for review and affirmed the decision of the
AJ.
Mr. Carrillo timely appeals the Board’s decision and
presents the same arguments to this court.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
This court must uphold a decision of the Board unless
it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit Sys.
Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). Underly-
ing factual determinations are reviewed for substantial
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
II. VEOA Claims
“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.” Lazaro v. Dep’t of Veter-
ans Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012); see
also 5 U.S.C. § 3330a. In order for veterans to receive the
benefits of these preference rights, Congress has enacted
various statutes and authorized the Office of Personnel
Management to adopt regulations that relate to the hiring
6 CARRILLO v. DHS
process of preference eligible veterans. Lazaro, 666 F.3d
at 1318.
With regard to his veterans’ preference for the team-
lead position, Mr. Carrillo argues that the board failed to
apply 5 U.S.C. § 2302(b)(11). He further contends that
the Board failed to apply “several statutes that constitute
a ‘veterans’ preference requirement’ for purposes of 5
U.S.C. § 2303(b)(11).” Pet’r’s Br. 6. Section 2302(b)(11)
states, in part, that: “Any employee who has authority to
take, direct others to take, recommend, or approve any
personnel action, shall not, with respect to such authority
. . . knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action would
violate a veterans’ preference requirement.” 5 U.S.C.
§ 2302(b)(11)(B).
Mr. Carrillo does not elaborate on how the Board vio-
lated § 2302, or identify to what statutes he is referring.
However, in subsequent arguments made in his Petition-
er’s Brief, he references 5 C.F.R. § 302.302(d) (2011) as
well as 5 U.S.C. § 3311. Both sections require an agency
to credit preference eligible candidates with time spent in
the military if the position for which they are applying is
similar or “material to the position” which they held
immediately before entrance into the military. 5 C.F.R.
§ 302.302(d)(1); 5 U.S.C. § 3311(2). Mr. Carrillo appears
to argue that his military service was not credited and
that his veterans’ preference was therefore violated.
As an initial matter, the Board has construed veter-
ans’ preference statutes to not apply when “an employee
seeks a promotion under an announcement limited to
internal candidates.” Slater v. U.S. Postal Serv., 112
M.S.P.R. 28, 32, (2009); see also Joseph v. Fed. Trade
Comm’n, 103 M.S.P.R. 684, 688 (2006), aff’d, 505 F.3d
1380 (Fed. Cir. 2007); 5 U.S.C. § 3304(f)(1) (stating that
“[p]reference eligibles or veterans . . . may not be denied
the opportunity to compete for vacant positions for which
CARRILLO v. DHS 7
the agency making the announcement will accept applica-
tions from individuals outside its own workforce under
merit promotion procedures”) (emphasis added). The
team-lead position was only available to internal candi-
dates, and thus Mr. Carrillo’s veterans’ preference did not
apply.
In any event, the evidence shows that the panel mem-
bers were aware of, and took into account Mr. Carrillo’s
relevant experience in the military. An affidavit by a
panel member “indicates that the panel asked the appel-
lant to elaborate on his military service in the Marines.”
App’x 10. Specifically, in Mr. De Laurentis’s declaration
he noted that when the panel “asked [Mr. Carrillo] to
elaborate on his time as an Environmental Chief in the
Marines, [Mr. Carrillo] was able to discuss what he did in
that position in a way that was helpful.” App’x 90. Ac-
cordingly, substantial evidence supports the Board’s
decision that the agency did not violate a law or regula-
tion relating to his veterans’ preference for the team-lead
position.
Mr. Carrillo also contests the Board’s affirmance of
the AJ’s finding that equitable tolling was not warranted
for his VEOA claim as to the supervisor position. Specifi-
cally, Mr. Carrillo argues that the AJ should have granted
equitable tolling to extend the sixty-day deadline under 5
U.S.C. § 3330a(a) to file his VEOA complaint with the
Department of Labor (“DOL”). In order to bring a claim
for a veterans’ preference violation to the Board, the
veteran must first present the claim to the DOL within
the sixty-day statutory period. See § 3330a(a)(2)(A). If the
complainant fails to do so, equitable tolling may be grant-
ed if the “complainant had actively pursued his judicial
remedies by filing a defective pleading during the statuto-
ry period, or where the complainant had been ‘induced or
tricked by his adversary’s misconduct into allowing the
filing deadline to pass.’” Roesel v. Peace Corps, 111
8 CARRILLO v. DHS
M.S.P.R. 366, 370 (2009) (citing Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990)).
Mr. Carrillo contends that his failure to meet the
deadline was “induced or tricked by his adversary’s mis-
conduct into allowing the filing deadline to pass.” Pet’r’s
Br. 7 (citations and internal quotation marks omitted).
Mr. Carrillo argues that his equal employment opportuni-
ty (“EEO”) counselor advised him incorrectly of the date
that his VEOA Complaint had to be filed with the DOL.
Mr. Carrillo does not present other evidence of induce-
ment or trickery. At the time Mr. Carrillo brought the
claim to his EEO counselor, and was allegedly given
incorrect information, the sixty-day deadline had “long
since passed”—it had been 230 days. App’x 83–84 . Thus,
any inducement or trickery that occurred would have
been long after Mr. Carrillo’s filing deadline had already
expired.
Mr. Carrillo also argues that “[b]y wrongfully and
willfully failing to give the Petitioner a notice of his
appeal rights, the Agency effectively contributed to the
Petitioner’s failure to file a timely appeal, or, perhaps,
even caused such untimely filing.” Pet’r’s Br. 12. Mr.
Carrillo relies on 38 U.S.C. § 4334(a) for this contention
and presumably is arguing that DHS should have notified
him to file his VEOA claims within the statutory time
limit. However, § 4334 applies to USERRA notices, not
VEOA claims. See 38 U.S.C. §§ 4301–34. Mr. Carrillo
does not offer other arguments or evidence suggesting
that the agency should have given him notice of his ap-
peal rights for his VEOA claims.
Finally, Mr. Carrillo argues that the Board should
have applied Kirkendall v. Dep’t of Army, 479 F.3d 830
(Fed. Cir. 2007) (en banc), in order to find equitable
tolling applied to his VEOA claim as to the supervisor
position. Kirkendall is distinguishable from Mr. Carrillo’s
case. In Kirkendall, this court found equitable tolling was
CARRILLO v. DHS 9
warranted when the DOL had taken more than sixty days
to resolve Mr. Kirkendall’s claim. 479 F.3d at 847 (holding
that “[i]f the DOL is unable to resolve the complaint
within another 60 days, the veteran may ‘appeal the
alleged violation to the [Board] in accordance with such
procedures as the [Board] shall prescribe’”) (quoting 5
U.S.C. § 3330a(d)). Mr. Carrillo does not contend that the
DOL was responsible for the delay and, accordingly,
Kirkendall is inapposite.
In light of the foregoing, the Board properly declined
to apply equitable tolling to Mr. Carrillo’s VEOA claim as
to the supervisor position.
III. USERRA Claims
Mr. Carrillo argues that the Board failed to consider
his discrimination claims for both the supervisor and
team-lead positions under USERRA. Relying on 5 U.S.C.
§ 3311(2), which requires that preference eligible candi-
dates be credited for their service when experience is an
element of qualification, Mr. Carrillo argues that “[a]ll
noted experience in relation to the specific experience
required by the job announcement is far exceeded. That
information was simply ignored.” Pet’r’s Br. 5.
An employer violates USERRA “if it would not have
taken the adverse employment action but for the employ-
ee’s military service or obligation.” Erickson v. U.S. Postal
Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009). Mr. Carrillo
had the burden to show “by a preponderance of the evi-
dence that his military service was a substantial or moti-
vating factor for an adverse employment action.” Id.
Mr. Carrillo identifies two inconsistent notices ex-
plaining his ineligibility for the supervisor position: a
March 28, 2011, notice informing him that he was ineligi-
ble because he did not meet the time-in-grade require-
ments, and an October 18, 2011, notice explaining the
March notice was in error and he was actually ineligible
10 CARRILLO v. DHS
because he did not meet the specialized experience re-
quirements. Mr. Carrillo argued to the Board that the
timing of the second notice was “suspect” because it was
issued just one day after Mr. Carrillo filed his appeal
relating to non-selection. App’x 41. The AJ agreed with
Mr. Carrillo that the timing of the second amended notice
was “suspect” but found it was “not preponderant evi-
dence of improper discriminatory motivation.” Id. The AJ
further concluded that though preference eligibles are
guaranteed the right to compete for a position, “it does not
exempt them from the eligibility criteria . . . that are
applicable to all candidates.” Id. at 41–42.
The record supports the finding that Mr. Carrillo’s
military service had been credited, and not used to dis-
criminate against him. Specifically, Ms. Bower was
aware that Mr. Carrillo was a veteran, reviewed the
relevant materials, and credited them under his experi-
ence. Ms. Bower made a statement that she evaluated
Mr. Carrillo’s application, including his military service,
and found “he did not have the “requisite experience to
qualify at the GS-14 level.” Id.
Mr. Carrillo does not offer evidence that contradicts
the Board’s finding or that indicates the panel was other-
wise motivated by an improper discriminatory motive as
to the supervisor position. The Board’s determination
that Mr. Carrillo failed to substantiate his USERRA claim
is therefore supported by substantial evidence.
With respect to the team-lead position, the record
supports the AJ’s finding that there was no discrimina-
tion based on Mr. Carrillo’s military service. The panel
averred that “they were impressed with [Ms. Masura’s]
answers to questions during the interview, and that the
appellant’s interview was not particularly remarkable.”
Id. at 44. Moreover, the panel stated that Ms. Masura’s
specialized CSP designation was important to them. Id.
Substantial evidence thus support’s the Board’s determi-
CARRILLO v. DHS 11
nation that Mr. Carrillo was not discriminated against on
the basis of his military service as to the team-lead posi-
tion.
CONCLUSION
We have considered the remainder of Mr. Carrillo’s
arguments and find them unpersuasive. For the forego-
ing reasons, we affirm the Board’s final decision uphold-
ing Mr. Carrillo’s nonselection for two positions at the
Department of Homeland Security.
AFFIRMED
No costs.