NOTE: This disposition is nonprecedential.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 Department of Justice, of Washington, DC, on behalf of respondent. 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 Protection 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 Customs Enforcement component in Laredo, Texas and 

Miami, Florida. Specifically, there were three vacancies 

in Texas, Job Announcement No. DAL-INV-345506-DEUMFJ (“Texas announcement”), and one vacancy in Florida, 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 resume 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 announcement. Because Mr. Morales was not rated a qualified applicant, he was not included on the Certificate of 

Eligibles for the GS-7 Investigative Assistant position 

associated with that announcement. The Agency ultimately 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 Certificate 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 complaint 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 initial 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 decisions 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) unsupported 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 decision 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. Specifically, the Board found that no new evidence was submitted 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 administrative determination is supported by substantial evidence 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). Particularly, 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 eligibles on the certificate who are available for appointment; 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 supported by substantial evidence. 

The undisputed facts show that the Agency reasonably selected Ms. Ward and Ms. Madrid, who were preference-eligible veterans and two of the three highest 

eligibles on the Certificate, to fill two of the three vacancies 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 eligibles 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 candidate 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 Eligibles. 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 substantial 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.