Tracey Lynn McMillon v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRACEY LYNN MCMILLON,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2016-1012
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-15-0490-I-1.
______________________
Decided: February 10, 2016
______________________
T RACEY L YNN MC MILLON, Norfolk, VA, pro se.
P ETER ANTHONY G WYNNE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, R OBERT E. K IRSCHMAN, J R.,
D OUGLAS K. M ICKLE.
______________________
Before CHEN, CLEVENGER , and BRYSON, Circuit
Judges.

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MCMILLON v. DOJ 2
P ER CURIAM .
Tracey L. McMillon seeks review of the final decision
of the Merit Systems Protection Board (“Board”) denying
her request for corrective action in connection with her
application for the position of Statistician, GS Series
1530, at the Drug Enforcement Administration (“DEA”).
McMillon v. Dep’t of Justice, No. DC3330-15-0490-I-1
(M.S.P.B. July 31, 2015). For the reasons set forth below,
we affirm the Board’s final decision.
I
In May of 2014, Ms. McMillon applied for a vacant
Statistician position, announced at grade levels GS-11,
GS-12 and GS-13, in the Intelligence Division at DEA
headquarters in Arlington, VA. The Human Resources
Department (“HR”) at DEA prepared three lists, known as
Best Qualified Lists, of eligible candidates for the position
at each of the three GS levels. HR initially determined
that Ms. McMillon was not qualified for the position, and
consequently her name did not appear on any of the Best
Qualified Lists. On June 6, 2014, another applicant, a
veteran, was selected for the position from the GS-13 Best
Qualified List, but declined the position. Ms. McMillon
asked for reconsideration of the determination that she
was not qualified, and thereafter HR determined that Ms.
McMillon was qualified as a GS-12 candidate, and accord-
ingly amended the GS-12 Best Qualified List to include
her name. The amended list was sent to the Intelligence
Division selecting official, who had electronic access to the
candidates’ applications. The selecting official and other
members of the Intelligence Division management inter-
viewed Ms. McMillon in person on July 15, 2014. On
September 14, 2014, Ms. McMillon was informed that
another person had been selected for the position from the
GS-12 Best Qualified List.
Ms. McMillon then filed a claim with the Department
of Labor (“DOL”) alleging that her rights under the Vet-

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MCMILLON v. DOJ 3
erans Employment Opportunities Act of 1998 (“VEOA”)
had been violated by the DEA. After investigating her
claim, DOL determined that her VEOA rights had not
been violated by DEA’s hiring process. In March of 2015,
Ms. McMillon filed an appeal with the Board, challenging
DOL’s determination.
The Board affirmed DOL’s decision. It noted that the
record was not entirely clear as to the theory on which
Ms. McMillon asserted her VEOA rights. The Board’s
deciding opinion noted that the VEOA affords advantages
in both the competitive examination process and the
merits promotion process. In the former process, addi-
tional points are added to the final rating scores of prefer-
ence eligible applicants, with preference eligible
applicants being ranked ahead of others applicants with
the same score. By contrast, in merits promotions, the
special advantage is simply the opportunity to compete for
vacancies that are otherwise open only to current agency
employees. The Board concluded that whichever process
was used by DEA in this case (that being the unclear
point), Ms. McMillon could not prevail. Because she had
not, despite specific requests therefor, provided documen-
tation showing her entitlement to additional points for a
competitive examination process, she could not show error
under VEOA in a competitive examination process. And
because the record showed that she was included on the
Best Qualified List for the position, and was in fact inter-
viewed for the position, she could not show that she had
been denied the opportunity to compete in a merits pro-
motion process. The fact that DEA offered the job to
another person before Ms. McMillon had been deemed
qualified was held irrelevant to Ms. McMillon’s case,
because the person selected declined the job and hence
left the opportunity open to Ms. McMillon. Accordingly,
the Board affirmed DOL’s decision.

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MCMILLON v. DOJ 4
II
Ms. McMillon timely sought review of the Board’s fi-
nal decision in this court. We have jurisdiction under 28
U.S.C. § 1295(a)(9). The scope of our appellate review of
the Board’s final decision is defined by statute. In 5
U.S.C. § 7703(c), Congress provided that we can only
upset the final decision of the Board if we determine that
it is arbitrary, capricious an abuse of discretion or other-
wise not in accordance with law. Where the Board’s final
decision rests on findings of fact, those findings must be
supported by substantial evidence.
III
Ms. McMillon pitches her petition for review in this
court on her assertion that DEA denied her the right to
compete for the job, because in the process, the agency
used an erroneous certification list, and extended an offer
of employment before she was deemed qualified. In her
supplemental brief, Ms. McMillon asserts that her inter-
view was a sham to cover up agency mistakes, and that
she was never given any documentation concerning the
GS-11 Best Qualified List.
DEA’s error in proceeding initially without Ms.
McMillon on a Best Qualified List was, as determined by
the Board, harmless, because the person initially selected
declined the job, leaving it open for Ms. McMillon to
compete. And compete she did, by having her application
considered and receiving an interview for the job. On the
record before us, we conclude that substantial evidence
supports the Board’s determination that Ms. McMillon’s
VEOA right to compete was not violated.
As for her contention that the interview was a sham,
Ms. McMillon has no facts of record to support her claim,
nor has she asserted that she requested DEA to consider
her at the lower level, or made a case that she was
harmed by not receiving the GS-11 documentation.

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MCMILLON v. DOJ 5
Under our standard of review, we see no error in the
Board’s final decision, which is
AFFIRMED.
COSTS
No costs.

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