John Paul Jones, III v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN PAUL JONES, III, DOCKET NUMBERS

Appellant, DE-3330-14-0294-I-1

DE-3330-14-0295-I-1

v. DE-3330-14-0302-I-1

DEPARTMENT OF HEALTH AND

HUMAN SERVICES,

Agency. DATE: April 2, 2015

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

John Paul Jones, III, Albuquerque, New Mexico, pro se.

Marie T. Ransley, Esquire, Atlanta, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action under the Veterans Employment

Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this

one only when: the initial decision contains erroneous findings of material fact;

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, and based on the following points and authorities, we conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petition for review. Therefore, we DENY the petition for review and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 This appeal involves three separate VEOA nonselection actions which the

appellant filed and the administrative judge joined without objection: (1) MSPB

Docket No. DE-3330-14-0294-I-1 (0294); (2) MSPB Docket No. DE-3330-14-

0295-I-1 (0295); and (3) MSPB Docket No. DE-3330-14-0302-I-1 (0302). 0294,

Initial Appeal File (IAF), Tabs 1, 12; 0295, IAF, Tabs 1, 11; 0302, IAF, Tabs 1,

9; see 5 C.F.R. § 1201.36(a)(2). The appellant, a 5-point preference-eligible

veteran, applied for three different positions with the agency’s Center for Disease

Control under the following delegated authority vacancy announcements, open to

all United States citizens: (1) HHS-CDC-D3-14-1053427, Public Health Advisor,

GS-13, 0294, IAF, Tab 5 at 20, 64-70; (2) HHS-CDC-D3-14-1049139, Public

Health Advisor, GS-12, 0295, IAF, Tab 5 at 17, 116-23; and (3) HHS-CDC-D4-

XX-XXXXXXX, Public Health Analyst, GS-15, 0302, IAF, Tab 5 at 12, 63-69. Each

of those announcements indicated that the agency had concurrently issued another

vacancy announcement bearing a different number for the same position under

merit promotion procedures and specifically advised applicants that they must

apply separately for each announcement in order to be considered under both

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procedures. 0294, IAF, Tab 5 at 65; 0295, IAF, Tab 5 at 117; 0302, IAF, Tab 5 at

63. 2 It is undisputed that the appellant only applied for the vacancy

announcements issued under the agency’s delegated authority and, therefore, he

did not apply for those issued under merit promotion procedures. See 0294, IAF,

Tab 37, Initial Decision (ID) at 2-3. The agency made its selections for all three

positions through the concurrent vacancy announcements it issued under merit

promotion procedures, for which the appellant did not apply. 0294, IAF, Tab 30

at 27, 30, 34.

¶3 The appellant timely filed complaints with the Department of Labor (DOL)

exhausting his administrative remedies with regard to each of the three vacancy

announcements for which he applied. After DOL notified him that it had

completed its investigation into his claims that the agency failed to properly

consider his veterans’ preference, the appellant timely filed the instant Board

appeals. 0294, IAF, Tab 1 at 4, 9; 0295, IAF, Tab 1 at 4, 9; 0302, IAF, Tab 1 at

4, 9. Because he found no genuine dispute of material fact, the administrative

judge denied each of the appellant’s requests for corrective action without

holding a hearing. ID at 2. Specifically, the administrative judge found that in

each instance, because the record established that the agency lawfully selected its

appointees through the internal merit promotion vacancy announcements under

each position and not from the delegated authority vacancy announcements for

which the appellant applied, the agency did not violate his rights under VEOA.

ID at 5-6.

¶4 In his timely-filed petition for review, the appellant argues that the

administrative judge was biased against him. Petition for Review (PFR) File, Tab

1 at 4, 6-10. The appellant also challenges the administrative judge’s decision to

2

The announcement numbers for the merit promotion vacancy announcements involved

in this matter are respectively: (1) HHS-CDC-M3-14-1053286, 0294, IAF, Tab 5 at 65;

(2) HHS-CDC-M3-14-1049142, 0295, IAF, Tab 5 at 117; and (3) HHS-CDC-M4-14-

1051623, 0302, IAF, Tab 5 at 117.

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forego a hearing and decide the appeal on the written record. Id. at 10-15. The

agency responded in opposition to the appellant’s petition and the appellant

replied to the agency’s response. PFR File, Tabs 2, 4.

¶5 In pertinent part, to be entitled to relief under VEOA, the appellant must

prove by preponderant evidence that the agency’s selection violated one or more

of his statutory or regulatory veterans’ preference rights. Dale v. Department of

Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). We agree with the

administrative judge that the appellant has not shown that the agency violated his

veterans’ preference rights in this case when it made its selections from the merit

promotion certificates issued pursuant to the merit promotion announcements, for

which he did not apply. An agency has the discretion to fill a vacant position by

any authorized method, and the Board’s reviewing court has held that there is

nothing preventing an agency from soliciting applications from the public and

from merit promotion applicants simultaneously and filling the vacant position

from the merit promotion certificate. See Joseph v. Federal Trade Commission,

505 F.3d 1380, 1384 (Fed. Cir. 2007) (finding that the agency did not violate

VEOA by conducting “simultaneous parallel procedures under the competitive

examination and merit promotion processes to fill the same position” and

selecting someone other than the veteran under the merit promotion process);

Dean v. Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008).

¶6 Moreover, the Board may decide a VEOA claim on the merits without a

hearing when there is no genuine issue of material fact and one party must prevail

as a matter of law. Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 12

(2007). Because the unrebutted record reflects that the agency filled all the

positions at issue through the merit promotion process, ID at 5; see 0294, IAF,

Tab 30 at 27, 30, 34, we agree with the administrative judge that there is no

genuine issue of material fact and find that the administrative judge properly

denied the appellant’s request for corrective action on the written record.

5

¶7 Regarding the appellant’s claim that the administrative judge was biased

against him, in making such a claim, a party must overcome the presumption of

honesty and integrity that accompanies administrative adjudicators. Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). Further, an

administrative judge’s conduct during the course of a Board proceeding warrants

a new adjudication only if the administrative judge’s comments or actions

evidence “a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.

Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The

appellant filed a motion in the appeal below to disqualify the administrative

judge, in which he explicitly explained why he feels that the administrative judge

was biased against him. 0294, IAF, Tab 21. In his ruling on the appellant’s

motion, the administrative judge provided a detailed explanation of why the

appellant failed to meet the above cited burden. 0294, IAF, Tab 25. The

appellant repeats his arguments on review. PFR File, Tab 1 at 6-10, Tab 4 at

6-10. We agree with the administrative judge’s analysis and find that the

appellant’s arguments on review do not show that the administrative judge either

erred or abused his discretion in this matter.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

6

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information is available at the court's website, www.cafc.uscourts.gov.

Of particular relevance is the court's "Guide for Pro Se Petitioners and

Appellants," which is contained within the court's Rules of Practice, and Forms 5,

6, and 11.

If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.