NOTE: This disposition is nonprecedential.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 Department of Justice, of Washington, DC, for respondent. With 

her on the brief were STUART F. DELERY, Assistant Attorney 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 Systems 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 preference 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 established criteria in an Office of Personnel Management 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 required 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 necessary 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 GS12 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 timein-grade requirements of the position” and would not be 

placed on the list of eligible candidates. Id. The time-ingrade 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 specialized 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 status,” 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 teamlead 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 Supervisor, Bob Hamilton, as well as Dan De Laurentis and Erick 

Eastes, supervisors from other branches and both veterans. 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 Central 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 requirements. 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 interview 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, regarding his two nonselections, DHS (1) violated his veterans’ 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. Carrillo’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 without procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit Sys. 

Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). Underlying 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 Veterans 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 teamlead 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 violated § 2302, or identify to what statutes he is referring. 

However, in subsequent arguments made in his Petitioner’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 veterans’ 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 applications from individuals outside its own workforce under 

merit promotion procedures”) (emphasis added). The 

team-lead position was only available to internal candidates, and thus Mr. Carrillo’s veterans’ preference did not 

apply.

In any event, the evidence shows that the panel members 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 appellant 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. Accordingly, substantial evidence supports the Board’s 

decision that the agency did not violate a law or regulation 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. Specifically, 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 granted if the “complainant had actively pursued his judicial 

remedies by filing a defective pleading during the statutory 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 misconduct 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 opportunity (“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 inducement 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 appeal 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 candidates 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 employee’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 evidence that his military service was a substantial or motivating factor for an adverse employment action.” Id. 

Mr. Carrillo identifies two inconsistent notices explaining his ineligibility for the supervisor position: a 

March 28, 2011, notice informing him that he was ineligible because he did not meet the time-in-grade requirements, 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 requirements. 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 evidence 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 discriminate against him. Specifically, Ms. Bower was 

aware that Mr. Carrillo was a veteran, reviewed the 

relevant materials, and credited them under his experience. 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 otherwise 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 discrimination 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 position. 

CONCLUSION

We have considered the remainder of Mr. Carrillo’s 

arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s final decision upholding Mr. Carrillo’s nonselection for two positions at the 

Department of Homeland Security. 

AFFIRMED

No costs.