Thomas v. Department of Labor
685 F. App'x 903
| Fed. Cir. | 2017Background
- Ann J. Thomas, a preference-eligible veteran and GS-12 Unemployment Insurance Program Specialist (UIPS) at DOL/ETA, applied for a GS-13 Workforce Development Specialist (WDS) vacancy.
- ETA initially rejected her application for failing to show ICTAP eligibility; VETS found a veterans' preference violation and requested ETA re-evaluate her qualifications.
- ETA reviewed Thomas’s application and concluded she lacked the specialized experience (notably experience working with discretionary grants) required for the WDS position.
- Thomas appealed to the MSPB; after an initial remand for clarification, an Administrative Judge held a hearing, received testimony and an affidavit describing distinct divisions within ETA and that the WDS required discretionary-grant experience.
- The AJ and the Board found ETA reasonably concluded Thomas was not qualified; Thomas did not dispute lacking discretionary-grant experience at the hearing and raised new evidence only on appeal.
- The Federal Circuit affirmed the MSPB, holding the Board’s decision was supported by substantial evidence and not arbitrary or contrary to law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ETA denied Thomas a VEOA right to compete by finding her unqualified | Thomas: Vacancy did not explicitly require discretionary-grant experience; thus she was improperly excluded | ETA: Entire announcement and agency expertise show WDS required specialized discretionary-grant experience; Thomas lacked it | Held: Affirmed — Board reasonably concluded Thomas was unqualified; no VEOA violation |
| Whether the vacancy announcement’s language was ambiguous about discretionary-grant experience | Thomas: Examples do not convert into a required qualification; ambiguity favors applicant | ETA: Announcement read as a whole, plus agency testimony, supports that discretionary-grant experience was required | Held: Board appropriately resolved ambiguity by considering full record and agency testimony |
| Whether Board/ AJ improperly weighed credibility or overlooked Thomas’s experience | Thomas: Challenges credibility findings and later asserts she had grant experience | ETA/Board: Credibility determinations are within Board’s discretion; record showed Thomas did not dispute lack of grant experience at hearing | Held: Court will not disturb Board credibility findings and will not consider new evidence first raised on appeal |
| Whether the decision was supported by substantial evidence and lawful | Thomas: (overall) Board erred in law and fact | Government: Decision was supported by testimony, affidavit, and analysis of Thomas’s resume against vacancy criteria | Held: Decision affirmed as supported by substantial evidence and not arbitrary or capricious |
Key Cases Cited
- Jacobsen v. Dep’t of Justice, 500 F.3d 1376 (Fed. Cir.) (defines substantial-evidence review)
- Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927 (Fed. Cir.) (explains substantial-evidence standard)
- Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316 (Fed. Cir.) (VEOA does not require agencies to consider veterans for positions for which they are not qualified)
- Joseph v. FTC, 505 F.3d 1380 (Fed. Cir.) (opportunity to compete does not guarantee selection)
- Miller v. Fed. Deposit Ins. Corp., 818 F.3d 1357 (Fed. Cir.) (VEOA claims fail when veteran is not qualified)
- Kahn v. Dep’t of Justice, 618 F.3d 1306 (Fed. Cir.) (credibility determinations by MSPB are largely unreviewable)
- Mueller v. U.S. Postal Serv., 76 F.3d 1198 (Fed. Cir.) (appellate review limited to the record before the deciding official)