NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

LUIS ALONSO PINALES-GARCIA,

Petitioner,

v.

DEPARTMENT OF DEFENSE,

Respondent.

______________________

2013-3038

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT3330120205-I-1.

______________________

Decided: May 13, 2013 

______________________

LUIS ALONSO PINALES-GARCIA, of Colorado Springs, 

Colorado, pro se. 

KENNETH S. KESSLER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were STUART F. DELERY, Deputy Principal 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER, JR., Assistant Director. 

______________________
2 LUIS PINALES-GARCIA v. DEFENSE

Before RADER, Chief Judge, CLEVENGER, and PROST,

Circuit Judges.

PER CURIAM.

Luis Alonso Pinales-Garcia seeks review of the final 

decision of the Merit Systems Protection Board (“Board”) 

affirming the decision of the Administrative Judge (“AJ”) 

denying Mr. Pinales-Garcia’s request for corrective action 

under the Veterans Employment Opportunities Act of 

1998 (“VEOA”). Pinales-Garcia v. Dep’t of Def., 

AT3330120205-I-1, 2012 WL 5458125 (M.S.P.B. Nov. 8, 

2012). For the reasons set forth below, we affirm.

I

Mr. Pinales-Garcia, a preference-eligible veteran, filed 

an appeal with the Board on December 27, 2011, asserting that the Missile Defense Agency (“Agency”) violated 

his VEOA rights when it failed to select him for the 

position of General Engineer, NH-0801-04, at Redstone 

Arsenal, Alabama. Mr. Pinales-Garcia made two arguments concerning the alleged violation of his VEOA 

rights: first, that the Agency had violated its notification 

obligations under 5 U.S.C. §§ 3312 and 3318 in connection 

with having passed him over for the job, and second, that 

the Agency further violated his VEOA rights by failing to 

properly credit all his prior military and non-military 

experience as required by 5 U.S.C. § 3311 and 

5 C.F.R. § 302.302(d) when it found him not among the 

best qualified applicants for the position at issue. The AJ 

held a hearing on Mr. Pinales-Garcia’s arguments in 

Huntsville, Alabama, on March 23, 2012.

The AJ rejected Mr. Pinales-Garcia’s arguments in a 

written opinion dated April 24, 2012. With regard to the 

first argument, the AJ noted that the notification rights to 

which he referred applied only to 30% or greater disabled 

veterans. Because Mr. Pinales-Garcia acknowledged at 
 LUIS PINALES-GARCIA v. DEFENSE 3

the hearing that he was not 30% or more disabled, the AJ 

held that the Agency had not violated Mr. PinalesGarcia’s VEOA rights by not providing statutory notice. Regarding Mr. Pinales-Garcia’s second argument, 

the AJ reviewed the evidence of record, which included 

the grounds upon which the Agency determined that Mr. 

Pinales-Garcia was not among the best qualified applicants. In particular, the AJ agreed with the Agency that 

Mr. Pinales-Garcia, while possessing a solid academic 

background, lacked the specialized experience in missile 

testing, planning and analysis required for performance of 

the Engineer position at issue. Accordingly, the AJ held 

that the Agency had not violated Mr. Pinales-Garcia’s 

VEOA rights and therefore denied his request for corrective action.

Mr. Pinales-Garcia timely petitioned the full Board 

for review of the AJ’s initial decision. Before the full 

Board, Mr. Pinales-Garcia asserted the two arguments he 

had made to the AJ, and also proffered additional new 

arguments. The full Board rejected the new arguments 

because Mr. Pinales-Garcia had not shown that those 

arguments were based on new and material evidence that 

was previously unavailable. The full Board affirmed the 

AJ’s rejection of Mr. Pinales-Garcia’s two arguments. As 

to the statutory notification argument, the full Board 

agreed with the AJ that Mr. Pinales-Garcia did not qualify for the asserted rights. The full Board alternatively 

held that the notification rights under Sections 3312 and 

3318 are not applicable to Mr. Pinales-Garcia’s case 

because the Agency filled the vacancy at issue under 

expedited hiring authority enumerated at 

5 U.S.C. § 3304(a)(3) and 5 C.F.R. § 337.201, which authorizes the Agency to make appointments without regard 

to the veterans’ preference provisions in Sections 3309 

through 3318. The full Board reviewed the record and 

concluded that the AJ considered all relevant evidence 

and correctly concluded that the agency considered all of 
4 LUIS PINALES-GARCIA v. DEFENSE

Mr. Pinales-Garcia’s relevant experience, and hence did 

not deny him his rightful opportunity to compete for the 

job. In sum, the full Board affirmed the AJ’s denial of Mr. 

Pinales-Garcia’s request for corrective action under the 

VEOA.

II

Mr. Pinales-Garcia timely sought review of the 

Board’s final decision in this court. We must affirm the 

final decision unless we determine that it is arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law, or obtained without procedures 

required by law, or unsupported by substantial evidence. 5 U.S.C. § 5503(c); see also Hayes v. Dep’t of the 

Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

Mr. Pinales-Garcia repeats his contentions that his 

notification rights under VEOA were violated, and that 

the Agency failed properly to consider all of his experience. We agree with the AJ and the Board that the 

notification rights which Mr. Pinales-Garcia seeks are not 

applicable to his case. We also agree that substantial 

evidence supports the Board’s factual conclusion that the 

AJ considered all the relevant experience Mr. PinalesGarcia offered. In the end, although we agree that Mr. 

Pinales-Garcia has distinguished academic credits, his 

experience for the position in question was sufficiently 

limited so as to disqualify him from being among the best 

qualified applicants for the position in question. Like the 

full Board, we do not consider any additional arguments 

Mr. Pinales-Garcia raises here for the first time. Because 

we perceive no legal error in the proceedings below, and 

we find substantial evidence to support the Board’s factual findings, we affirm the final decision of the Board.

COSTS

No Costs.