Faye R. Hobson v. Department of Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FAYE R. HOBSON,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2023-2228
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-3330-20-0418-X-1.
______________________
Decided: November 5, 2024
______________________
FAYE RENNELL HOBSON, Clarksville, TN, pro se.
KRISTIN ELAINE OLSON, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M.
MCCARTHY.
______________________
Before HUGHES, MAYER, and STARK, Circuit Judges.
Case: 23-2228 Document: 37 Page: 1 Filed: 11/05/2024

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HOBSON v. DEFENSE 2
PER CURIAM.
Petitioner Faye Hobson challenges the Merit Systems
Protection Board’s dismissal of her petition for enforcement
of an earlier Board order directing Respondent,
Department of Defense, to reconstruct a job selection
process of which Ms. Hobson was a part. Because there is
substantial evidence for the Board’s conclusion that the
agency complied with the order, we affirm.
I
In October 2019, Ms. Hobson was considered for a
position as a teacher of Middle School Social Studies at
Fort Campbell in Kentucky with the Department of
Defense Education Activity in the Americas Region
(DoDEA). The agency considered both internal and
external candidates for the position, ultimately generating
a referral list of 26 internal candidates and 26 external
candidates. See Joseph v. F.T.C., 505 F.3d 1380, 1381–82
(Fed. Cir. 2007) (describing government hiring
mechanisms). For external candidates, the agency’s web-
based Employment Application System (EAS) performed
an automated review of each applicant’s data and assigned
a corresponding score to that applicant. For external
candidates seeking veterans’ preference benefits or derived
veterans’ preference benefits, a Human Resources (HR)
specialist reviewed supporting documentation and added
veterans’ preference points to the applicant’s EAS-assigned
score, if appropriate. While Ms. Hobson did submit
information claiming entitlement to derived veterans’
preference benefits resulting from her husband’s status as
a disabled veteran, the agency found that her
documentation was insufficient and denied awarding her
additional points on her application. Ms. Hobson was
awarded a score of 45, which ranked her application
number 14 out of the 26 external applicants.
The selecting official for the Social Studies teaching
position interviewed two candidates from the referral list—
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HOBSON v. DEFENSE 3
the top-ranked external candidate, who had received a
score of 71, and an internal candidate, Ms. Obermite, who
did not receive an EAS score per agency procedure. The
selecting official originally selected the top-ranked external
candidate, but he declined the offer. The selecting official
then selected Ms. Obermite, who accepted the offer and
was appointed to the position on February 16, 2021.
After being informed that she was not selected for the
position, Ms. Hobson sought relief from the Department of
Labor. When that effort was unsuccessful, she appealed to
the Board. The administrative judge found that
Ms. Hobson was entitled to derived veterans’ preference,
and since the agency had not accorded Ms. Hobson her
preference rights under the competitive examination
process, the administrative judge found that the agency
had violated the Veterans Employment Opportunities Act
(VEOA) and granted Ms. Hobson’s request for corrective
action. See S.A. 34–42 (Initial Decision). The
administrative judge ordered the agency to reconstruct the
hiring process for the Social Studies teacher position
within 30 days. The administrative judge declined to order
interim relief, explaining “[t]here is no appropriate relief
available unless and until there is a finding that, as a
result of the agency’s reconstruction of the selection process
or appeal thereof, the appellant would have been selected
and is entitled to compensation.” S.A. 42 (citing 5 U.S.C.
§ 7701(b)(2)(A)).1
In March 2021, the agency notified Ms. Hobson that it
had completed the reconstruction process and that she was
again not selected for the position. The agency noted that
when she was assigned the 10 additional derived veterans’
preference points, her application ranking moved up from
14 to 9 out of the 26 external candidates. The agency
1 References to S.A. refer to the Supplemental
Appendix filed with the agency’s brief.
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HOBSON v. DEFENSE 4
concluded that the recalculated score “did not [a]ffect the
validity of the selection made by the hiring official” in the
original hiring process, S.A. 55, “because the primary
selectee (the original top-ranked external candidate)
remained the top-ranked external applicant, while the
alternate selectee . . . was an internal candidate (and thus,
the agency could select her without regard to veterans’
preference).” S.A. 14. Ms. Hobson filed a petition for
enforcement of the Board’s previous order, which the
administrative judge granted, finding that the agency’s
reconstructed hiring process was deficient for a number of
reasons. See S.A. 68–78 (Compliance Initial Decision).
Ms. Hobson’s petition was then referred to the Board for a
final decision on the issue of the agency’s compliance with
the administrative judge’s Initial Decision ordering
reconstruction. At the order of the Office of the Clerk of the
Board, the agency submitted additional evidence of
compliance explaining the reconstructed hiring process
and providing supporting documentation.
On June 2, 2023, the Board issued a final order finding
that the agency showed “by preponderant evidence that its
reconstructed selection process was in accordance with
law.” S.A. 19. Ms. Hobson timely petitioned for review in
this court. We have jurisdiction to review a final decision of
the Board under 28 U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision 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); Higgins v. Dep’t of Veterans Affs., 955 F.3d
1347, 1353 (Fed. Cir. 2020).
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HOBSON v. DEFENSE 5
III
When an agency fails to properly apply veterans’
preference rights during selection in the competitive
service, “[r]econstruction seeks to determine whether the
agency would have selected the [applicant] at the time of
the original selection process” had the preference rights
been properly applied. Marshall v. Dep’t of Health & Hum.
Servs., 587 F.3d 1310, 1317 (Fed. Cir. 2009). In this case,
when reviewing the record evidence, the Board was
“satisfied that the agency ha[d] shown by preponderant
evidence that its reconstructed selection process was in
accordance with law.” S.A. 19. Ms. Hobson alleges that the
Board’s decision dismissing her petition for enforcement
was erroneous, arguing that the agency improperly
bypassed her application and that the Board should have
granted her interim relief. The agency disagrees, arguing
that the Board correctly determined that the agency
fulfilled its obligations under the Initial Decision and the
Compliance Initial Decision. Upon review of the record, we
see no legal or procedural error in the Board’s decision and
determine that it is supported by substantial evidence.
With respect to the sufficiency of evidence, the Board
credited record evidence from the agency showing that it
(1) “removed [Ms. Obermite] from the subject position by
reassigning her to a different teaching position . . . thereby
creating a vacancy in the subject position,” (2) “calculated
[Ms. Hobson’s] correct score and ranking on the external
candidate list by adding 10 points representing the
appellant’s derived veterans’ preference to her EAS-
assigned score of 45,” and (3) “elected not to hire from the
external list at all and instead decided to select an
applicant from the internal list, . . . which was lawful.” S.A.
19–20. The Board also noted that “the same selecting
official as in the original hiring process considered the
applications of the candidates on the certificate of best
qualified candidates, including [Ms. Hobson’s], and
selected [Ms. Obermite] based on her interview and her
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HOBSON v. DEFENSE 6
experiences as reflected on her resume.” S.A. 20.
Accordingly, the Board concluded that “[a]lthough the
reconstructed process did not alter the outcome, we find
that the agency has shown that it gave [Ms. Hobson] a bona
fide opportunity to compete for the subject position, which
is what the VEOA requires.” S.A. 20.
The Board also considered and rejected many of
Ms. Hobson’s arguments about falsified documents or
manipulation of EAS scores, stating that Ms. Hobson’s
challenges were “unavailing.” S.A. 20. The Board noted
that “[c]ontrary to [Ms. Hobson’s] assertions, the agency
has shown how it arrived at her pre-veterans’ preference
score of 45: the EAS algorithm assigned it based on her
answers to application questions.” S.A. 20. The Board
further noted that Ms. Hobson “ha[d] not presented any
evidence that would tend to show that the agency
manipulated the EAS algorithm to depress her score or to
elevate others’ scores.” S.A. 20. Additionally, the Board
rejected Ms. Hobson’s argument that the agency was
required to prove that Ms. Obermite was “the most
qualified” applicant because “her selection was in
accordance with law so long as she was ‘among a group of
best qualified candidates,’ . . . which she was by virtue of
being on the referral list of qualified candidates along with
[Ms. Hobson] and the other 50 applicants.” S.A. 21. Finally,
the Board rejected Ms. Hobson’s argument that she was
improperly “passed over” in favor of Ms. Obermite—who
was not preference-eligible—stating that this argument
was “inapposite because veterans’ preference rules such as
the prohibition on passing over a preference eligible
without dispensation from the Office of Personnel
Management, see 5 U.S.C. § 3318(c)(1), do not apply to
[internal] merit promotions.” S.A. 21.
The record evidence discussed above constitutes
substantial evidence, which simply means “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. of New York v.
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HOBSON v. DEFENSE 7
NLRB, 305 U.S. 197, 229 (1938). Many of Ms. Hobson’s
arguments to this court amount to disagreement about
what the facts of the case are, the weighing of evidence, and
the overall outcome of her appeal to the Board. See e.g., Pet.
Br. 9–10 (disputing her EAS score of 45 and stating that
she “would have been the selectee had she been properly
rated with or without the 10 point preference, because she
would have been the highest scored applicant on all list[s]
provided”); id. at 15 (arguing that Ms. Obermite was never
removed from her position and that the record contains
falsified documents). That Ms. Hobson may disagree with
the Board’s conclusion and its weighing of the record
evidence does not warrant reversal.
Further, we find Ms. Hobson’s arguments of legal error
and constitutional violation regarding “bypass” procedures
to be equally unpersuasive. Ms. Hobson asserts that the
agency improperly imposed a “bypass” when it selected
Ms. Obermite for the position instead of Ms. Hobson,
despite Ms. Hobson having derived veterans’ preference
status. Pet. Br. 5 (“When an agency official bypasses a
veteran or preference eligible [individual,] the agency is
obligated to disclose its bypass action to the Appellant
when it occurs and the agency has made no such
attempts.”); id. at 16 (asserting that the agency’s bypass
“rises to a constitutional violation”). While Ms. Hobson is
correct that under VEOA, an agency generally cannot pass
over a preference eligible employee to appoint a non-
preference eligible one without written reasoning, see 5
U.S.C. § 3318(c), such a requirement only applies to the
competitive examination process for external hires, not the
merit promotion process for internal hires. See Miller v.
Fed. Deposit Ins. Corp., 818 F.3d 1357, 1360–61 (Fed. Cir.
2016) (explaining that veterans’ preference rights under
merit promotion procedures only confer a right to compete
by submitting an application, not a quantitative boost to
the strength of the application). Since the agency
ultimately chose an internal candidate, the bypass
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HOBSON v. DEFENSE 8
requirements did not apply, and Ms. Hobson’s assertions of
legal error must fail. See Joseph, 505 F.3d at 1384
(affirming board’s decision that agency did not violate
VEOA where it gave appellant 10-point veterans’
preference but selected the internal candidate instead).
IV
We have considered Ms. Hobson’s remaining
arguments and find them unpersuasive. Because the
Board’s decision was supported by substantial evidence,
obtained with proper procedure, and otherwise in
accordance with law, we affirm.
AFFIRMED
COSTS
No costs.
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