Onyewuchi v. DOJ

• Court: Court of Appeals for the Federal Circuit
• Decided: December 5, 2025
• Docket: 25-1054
• Status: Unpublished

Opinion

Case: 25-1054 Document: 38 Page: 1 Filed: 12/05/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MORRIS ONYEWUCHI, Petitioner

v.

DEPARTMENT OF JUSTICE, Respondent ______________________

2025-1054 ______________________

Petition for review of the Merit Systems Protection Board in No. DA-3330-21-0036-I-4. ______________________

Decided: December 5, 2025 ______________________

MORRIS ONYEWUCHI, Laguna Vista, TX, pro se.

STEPHEN J. SMITH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by REGINALD THOMAS BLADES, JR., PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________

Before MOORE, Chief Judge, TARANTO and HUGHES, Circuit Judges. Case: 25-1054 Document: 38 Page: 2 Filed: 12/05/2025

PER CURIAM. Morris Onyewuchi, as a preference-eligible veteran, is entitled to certain rights in hiring by the federal govern- ment. See 5 U.S.C. §§ 2108, 3304, 3309–20. He had been working for more than a year as an immigration judge within the Department of Justice (agency) when, in 2020, he applied in response to each of two agency advertise- ments for vacancies, posted less than three months apart, for appellate-immigration-judge positions. He was inter- viewed for the first position, and that interview counted for the second position as well, but he was not hired for either position. He then unsuccessfully sought relief from the De- partment of Labor, asserting a violation of rights protected by the Veterans Employment Opportunities Act of 1998 (VEOA), Pub. L. No. 105-339, §§ 2–3, 112 Stat. 3182, 3182– 84 (1998) (codified as amended in part at 5 U.S.C. §§ 3304, 3330a). Mr. Onyewuchi appealed to the Merit Systems Protec- tion Board, but the Board’s administrative judge (AJ) de- nied corrective action. Onyewuchi v. Department of Justice, No. DA-3330-21-0036-I-4, 2023 WL 2357607 (M.S.P.B. Feb. 28, 2023) (Initial Decision); Appx. 5–19. The Board affirmed the denial, with one modification to the In- itial Decision. Onyewuchi v. Department of Justice, No. DA-3330-21-0036-I-4, 2024 WL 3688876 (M.S.P.B. Aug. 6, 2024) (Final Decision); Appx. 1–4. Mr. Onyewuchi appeals to us. We affirm the Board’s decision. I A In January 2020 and April 2020, the agency announced two vacancies for the position of appellate immigration judge on the Board of Immigration Appeals (BIA), both of them excepted-service attorney positions for which the Case: 25-1054 Document: 38 Page: 3 Filed: 12/05/2025

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public could apply. See Initial Decision at 6–7; 1 5 U.S.C. § 2103(a) (distinguishing excepted service from competi- tive service and Senior Executive service); Patterson v. De- partment of the Interior, 424 F.3d 1151, 1155 n.4 (Fed. Cir. 2005). For such excepted-service positions, as relevant here, 5 C.F.R. § 302.101(c) requires that an agency must “follow the principle of veteran preference as far as admin- istratively feasible.” Since 1979, the agency also has had a policy, reflected in the agency’s Office of Legal Counsel Memorandum Opinion 79-22, providing that preference-el- igible attorney candidates may claim a preference that will be evaluated as a positive factor such that “[w]hen the vet- eran’s other qualifications place him or her in close compe- tition, the veteran is preferred over other applicants with substantially equal qualifications.” Appx. 36–38. An in- ternal agency posting (which is before us in its February 2022 version) makes materially the same point about final selection, noting that “[s]electing officials must [continue to] treat veterans’ preference eligibility as a positive factor in attorney hiring at all stages of the review process.” Appx. 41. A second internal agency memorandum set out a pro- cess, approved by the Attorney General in March 2019, for the hiring of immigration judges and BIA appellate immi- gration judges in particular. Appx. 46–50, 55. As relevant here, applicants for the appellate position (within the agency’s Executive Office for Immigration Review, or EOIR) would be sorted into “do not recommend” and “rec- ommend” tiers (the latter having a “highly recommended” subcategory), with all current immigration judges having at least one year of experience automatically deemed “rec- ommended,” and all “recommended” candidates would be scheduled for an interview with an initial panel unless

1 In citing the Initial Decision, we use the original page numbers on the version that appears in the appendix. Case: 25-1054 Document: 38 Page: 4 Filed: 12/05/2025

already interviewed for another position in the preceding twelve months, in which case the prior interview would be used for the new opening. Appx. 47; Initial Decision, at 2, 4–5. The EOIR’s director would select candidates to rec- ommend and forward to a finalist panel, after which the director would make conditional offers, with hiring ulti- mately subject to the Attorney General’s discretion. Initial Decision, at 4–5. B Mr. Onyewuchi qualifies for veteran preference-eligi- ble status under 5 U.S.C. §§ 2108, 2108a because he was honorably discharged from the Army after serving for ap- proximately five years. Initial Decision, at 2; Appx. 21. By January 2020, he had been employed by the agency as an immigration judge for more than one year, following other extensive government service. Initial Decision, at 5–6. In January 2020, the agency advertised to hire one or more appellate immigration judges, and Mr. Onyewuchi applied that month and was interviewed in February 2020. Appx. 51, 57, 63. In March 2020, the three-person inter- view panel forwarded to the EOIR director seven candi- dates as “highly recommended” and sixteen candidates as “recommended,” the latter group including Mr. Onyewuchi (entitled to that status because of his service as an immi- gration judge for more than one year). Appx. 57, 67. Later that March, the director forwarded to the finalist panel a list of twelve interviewees, one of whom was Mr. Onyewu- chi. Appx. 57; see Appx. 47–48 (explaining the differences between the two panels). Mr. Onyewuchi then interviewed with the finalist panel, but in April 2020, the agency ex- tended four offers to other applicants, each of whom the fi- nalist panel had deemed “significantly stronger” than Mr. Onyewuchi. Appx. 57. Three of the offerees accepted. Id. The agency advertised its next BIA vacancy in April 2020, and Mr. Onyewuchi applied, as did seven of the other finalists for the first BIA position, four of whom had been Case: 25-1054 Document: 38 Page: 5 Filed: 12/05/2025

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rated higher than Mr. Onyewuchi. Id. Because Mr. Onyewuchi had interviewed for the first position and re- ceived a rating of “recommended,” the EOIR director re- viewed Mr. Onyewuchi’s application for an interview with the finalist panel, as he did for the other seven previous finalists who had reapplied. Appx. 68; see Initial Decision, at 7. Mr. Onyewuchi’s veteran’s status was considered a positive factor in evaluating his application for this second position. Initial Decision, at 7. In May 2020, the EOIR director determined that “[n]othing substantively had changed regarding the appli- cations of [Mr. Onyewuchi] or the other [four] candidates that had been previously considered significantly stronger applicants.” Appx. 57–58. The director also found two ad- ditional applications (provided to the director by the initial panel evaluating candidates for the second vacancy) to be stronger than Mr. Onyewuchi’s application. Appx. 58. The director therefore forwarded to the finalist panel the just- noted six applications, and Mr. Onyewuchi was not inter- viewed for the second BIA position by either panel. Initial Decision, at 7–8; Appx. 57–58. C In August 2020, Mr. Onyewuchi filed a complaint with the Department of Labor under the VEOA, 5 U.S.C. § 3330a(a)(1), seeking to advance claims falling into each of the two categories recognized by VEOA. Initial Decision, at 2–3, 8. He alleged that the agency violated his veteran- preference rights purportedly afforded by agency regula- tion and hiring policies. Id. at 2, 9; see 5 U.S.C. § 3330a(a)(1)(A) (providing redress for violation of rights under “any statute or regulation relating to veterans’ pref- erence”). And he alleged that the agency denied him the opportunity to compete for the second position. Initial De- cision, at 2–3, 13; see 5 U.S.C. § 3304(f)(1) (2004) (prefer- ence-eligibles like Mr. Onyewuchi may not be denied “the opportunity to compete for vacant positions for which the Case: 25-1054 Document: 38 Page: 6 Filed: 12/05/2025

agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures”). 2 In October 2020, the Department of Labor concluded that the agency had not violated Mr. Onyewuchi’s preference rights. Initial Decision, at 8. Mr. Onyewuchi appealed to the Board. In February 2023, the Board-assigned AJ issued the Initial Decision, denying Mr. Onyewuchi’s request for cor- rective action. Initial Decision, at 2. As to his first type of VEOA claim: The AJ determined that 5 C.F.R. § 302.101(c) did not confer enforceable rights on veterans because it is too non-specific and thus merely “hortatory,” and the inter- nal policies are not a “regulation” under section 3330a(a)(1)(A). The AJ also concluded that, in any event, the agency did not violate the cited regulation and policies. Initial Decision, at 9–13 (citing Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003)). As to his second type of VEOA claim: The AJ concluded that Mr. Onyewuchi was not denied an opportunity to compete under VEOA because relevant precedent indicates that section 3304(f)(1) cannot apply to an immigration judge applying for an excepted- service position and, in any event, the agency properly con- sidered his qualifications in the competitions for the posi- tions. Initial Decision, at 13–14. In April 2023, Mr. Onyewuchi then filed a petition to the Board for review of the AJ’s decision. Final Decision, at *1; see Appx. 103. The Board modified the Initial Deci- sion because the AJ failed to address Mr. Onyewuchi’s claim that the agency violated 5 C.F.R. §§ 302.202–.03, but it found the Board’s oversight harmless because there was

2 In December 2024, after Mr. Onyewuchi filed his petition for review to this Court, Congress reorganized 5 U.S.C. § 3304, moving subsection 3304(f)(1) to newly added subsection 3304(l)(1). Chance to Compete Act of 2024, Pub. L. No. 118-188, § 2, 138 Stat. 2644, 2645 (2024). Case: 25-1054 Document: 38 Page: 7 Filed: 12/05/2025

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no violation, as the procedure the agency used was appro- priate under the relevant regulations. Final Decision, at *1; see 5 C.F.R. § 302.202 (“[E]ach agency shall establish qualification standards such as those relating to experience and training[.]”); id. § 302.203(b) (“Agencies may prescribe additional factors to protect the integrity and promote the efficiency of the service when job-related and consistent with business necessity.”). The Board affirmed the Initial Decision as so modified. Final Decision, at *2. Mr. Onyewuchi timely petitioned for review by this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II We may set aside the Board’s decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence[.]” 5 U.S.C. § 7703(c). We review the Board’s legal determina- tions de novo, Chambers v. Department of the Interior, 602 F.3d 1370, 1375 (Fed. Cir. 2010), and its factual findings for substantial-evidence support, Knox v. Department of Justice, 125 F.4th 1059, 1064 (Fed. Cir. 2025). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consol- idated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938), even if an opposite conclusion might also be supportable, Consolo v. Federal Maritime Commis- sion, 383 U.S. 607, 619–20 (1966). Mr. Onyewuchi bears the burden of establishing errors in the Board’s determina- tions. Harris v. Department of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). A Mr. Onyewuchi argues that we should reverse the Board’s rejection of his VEOA claim under 5 U.S.C. § 3330a(a)(1)(A), which requires a violation of rights under Case: 25-1054 Document: 38 Page: 8 Filed: 12/05/2025

“any statute or regulation relating to veterans’ preference.” He points to 5 C.F.R. § 302.101(c) as an assertedly violated regulation and the agency’s policy reflected in the 79-22 Memorandum as another assertedly violated regulation. Onyewuchi Opening Br. at 40–44. We find no reversible error in the Board’s determination of no violation of section 3330(a)(1)(A). We need not and do not reach either the question whether 5 C.F.R. § 302.101(c) is unenforceable in a claim under 5 U.S.C. § 3330a(a)(1)(A) or the question whether the 79-22 Memorandum fails to qualify as a “regulation.” It is enough that we see no reversible error in the Board’s holding there was no violation of the regulation or the Memorandum. We have held that an agency complies with 5 C.F.R. § 302.101(c) if it “consider[s] veteran status as a ‘positive factor’ in reviewing applications.” Patterson, 424 F.3d at 1159–60. The 79-22 Memorandum does not add anything material for present purposes. See Appx. 36–38, 41. Critically, neither the regulation nor the Memorandum precludes the agency from hiring someone reasonably found to be a better candidate for the job than the prefer- ence-eligible veteran. The Board had substantial evidence on which to deter- mine that the agency here did consider Mr. Onyewuchi’s veteran status as a positive factor and hired others because they were better candidates—satisfying the regulation and the 79-22 Memorandum. The Board could and did credit testimony that Mr. Onyewuchi’s veteran-preference status was known and considered a positive factor in both hiring rounds. Initial Decision, at 6, 8, 10; see Appx. 24. And the Board found, based on substantial evidence, that, for both positions, the candidates selected were better qualified than Mr. Onyewuchi. See Initial Decision, at 10–13; Appx. 56–57, 67–69, 80. Case: 25-1054 Document: 38 Page: 9 Filed: 12/05/2025

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B Mr. Onyewuchi argues that we should reverse the Board’s rejection of his VEOA claim that the agency denied him his right to compete in violation of 5 U.S.C. § 3304(f)(1). See Onyewuchi Opening Br. at 52–68. In par- ticular, he alleges that the agency was required to forward his application to the finalist panel for the second position because he had interviewed within the last twelve months for the first position. Id. at 59–62. We see no reversible error in the Board’s rejection of his right-to-compete claim. As an initial matter, in Kerner v. Department of the In- terior, we ruled that the section 3304(f)(1) right applies only to initial appointments, not promotions. 778 F.3d 1336, 1338–39 (Fed. Cir. 2015). If that ruling applies to excepted-service as well as competitive-service positions, it bars the right-to-compete claim of Mr. Onyewuchi, who al- ready was a non-probationary employee working for the agency as an immigration judge. In any event, his claim fails on the merits. We have held that a veteran whose qualifications are evaluated for a position, at least where the competition comported with agency policy, cannot have been denied an opportunity to compete. See Dean v. Consumer Product Safety Commission, 548 F.3d 1370, 1373–74 (Fed. Cir. 2008); see also Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (“[T]he VEOA does not enable veterans to be considered for positions for which they are not qualified.”); Abell v. Department of Navy, 343 F.3d 1378, 1384–85 (Fed. Cir. 2003) (concluding that the agency did not deny an opportunity to compete when it “reasonably relied on its interview process to determine that [the applicant] did not meet the qualifications re- quired for the position”); Joseph v. Federal Trade Commis- sion, 505 F.3d 1380, 1385 (Fed. Cir. 2007) (same). Here, for both positions, Mr. Onyewuchi received a rating of “recom- mended,” consistent with the agency’s policy, given his Case: 25-1054 Document: 38 Page: 10 Filed: 12/05/2025

experience as an immigration judge for at least a year. See Appx. 47, 56–57, 67. Also consistent with agency policy, Mr. Onyewuchi’s interview for the first position was con- sidered when the director determined, for the second posi- tion, which candidates to forward to the finalist panel because that interview occurred within twelve months of his second application: Based on the merits of that inter- view and the lack of change in his application, the director decided not to forward Mr. Onyewuchi’s application to the finalist panel. See Appx. 57–58. On this record, the Board committed no error in holding that he was not denied the right to compete. Initial Decision, at 14. C Mr. Onyewuchi claims on appeal that the agency vio- lated his Fifth Amendment right to due process or a right to have the agency follow its own procedures under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Onyewuchi Opening Br. at 28–29. Specifically, he argues that the various alleged violations just discussed mean that he was deprived of a constitutionally protected “prop- erty interest” in his veteran’s preference. Id. at 13, 29–31. As part of his due process claim, he also asserts that the EOIR director prejudged him, improperly exercised au- thority after delegating it to a designee, and exercised ultra vires unilateral authority. Id. at 12–15, 32–37; Onyewuchi Reply Br. 35–37. Mr. Onyewuchi’s due process and Accardi claims are forfeited, as he has pointed to no place in the record before the Board where he previously presented those claims. Re- gardless, the claims lack merit. For reasons largely al- ready recounted, the agency gave Mr. Onyewuchi full notice and opportunity to press his application, and it fol- lowed its procedures—e.g., determining that Mr. Onyewu- chi was a “recommended” candidate for both positions, Appx. 56–57, 67–68, and recognizing his veteran- Case: 25-1054 Document: 38 Page: 11 Filed: 12/05/2025

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preference status as a positive factor, see Initial Decision, at 6, 8, 10. The agency also reasonably created internal policies consistent with 5 C.F.R. §§ 302.202–.203. See Final Deci- sion, at *1. And contrary to Mr. Onyewuchi’s contentions about the EOIR director’s delegation of authority, the agency’s hiring guidelines permit “the EOIR Director (or other senior EOIR official designated by the Director) [to] interview [candidates],” but the guidelines do not say that such a delegation relinquishes the EOIR director’s power. Appx. 48 (emphasis added). Indeed, under the guidelines, “[p]ursuant to a delegation from the Attorney General, the EOIR Director will [then] determine whether to select the candidate for an initial conditional offer.” Appx. 49 (em- phasis added); see also In re Palo Alto Networks, Inc., 44 F.4th 1369, 1375 & n.3 (Fed. Cir. 2022) (recognizing au- thority of a delegator to override the delegatee’s choice); Apple Inc. v. Vidal, 63 F.4th 1, 7 (Fed. Cir. 2023) (same). Further, Mr. Onyewuchi does not persuasively show that he was prejudged given evidence that the agency found other applicants to be more qualified and “significantly stronger” than Mr. Onyewuchi only after considering the merits of his and their applications. Appx. 57–59. Mr. Onyewuchi’s due process arguments, even if he had a con- stitutionally protectable interest, are thus meritless. III We have considered Mr. Onyewuchi’s other arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s final decision. The parties shall bear their own costs. AFFIRMED