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

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN PAUL JONES, III, DOCKET NUMBER

Appellant, DE-3330-15-0048-I-1

v.

DEPARTMENT OF HEALTH AND DATE: April 3, 2015

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL *

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

Kathleen Mee, Washington, D.C., 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. Generally, we grant petitions such as

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

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

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 In March 2014, the agency issued, under both its delegated examining (DE)

and merit promotion (MP) authorities, vacancy announcements HHS-OASH-DE-

XX-XXXXXXX and HHS-OASH-MP-14-1078194, for the position of Public Health

Advisor (PHA), in the Office of the Assistant Secretary for Health (OASH),

located in Atlanta, Georgia. Initial Appeal File (IAF), Tab 4, at 8-13, 127-33.

The appellant, a preference-eligible veteran, applied for the position under the DE

announcement and was afforded the appropriate veterans’ preference. IAF, Tab 4

at 15-44, 48. The appellant was found qualified for the PHA position at the

GS-13 grade level and his application, along with those of the other qualified

applicants (under the DE and MP certificates at both the GS-12 and GS-13 grade

levels), and was referred to the selecting official, the OASH Regional Health

Administrator. See IAF, Tab 4 at 50, 55-63, 135-60. The appellant was

subsequently advised that he was not selected for the PHA position. IAF, Tab 4,

Subtab 2f at 53.

¶3 After exhausting his administrative remedies with the Department of Labor,

the appellant filed this appeal and requested a hearing. IAF, Tab 1 at 2, 8. On

appeal, the appellant argued that agency personnel failed to properly evaluate his

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application, that he was qualified for the PHA position, and that the selection

process was unlawful. IAF, Tabs 1, 8-9. In response to the administrative

judge’s order to clarify whether the PHA position was filled, the agency

submitted a sworn declaration from the Regional Health Administrator stating

that she did not select anyone for either of the jobs listed in the vacancy

announcements. IAF, Tab 6 at 7. The administrative judge notified the parties

that he found no genuine dispute of material fact requiring a hearing, advised

them of the applicable law and burdens of proof, and issued a close of the record

order allowing the parties until December 19, 2014, to supplement the record.

IAF, Tab 7. The appellant responded, and the administrative judge found, based

upon the undisputed facts, that the agency did not violate any of the appellant’s

statutory or regulatory veterans’ preference rights in not making a selection under

either vacancy announcement. IAF, Tabs 4, 6, 8-9; IAF, Tab 10, Initial Decision

(ID) at 5.

¶4 The appellant has filed a petition for review arguing, in pertinent part, that

he was improperly denied a hearing and that the agency violated his “VEOA

rights.” Petition for Review (PFR) File, Tab 1 at 5, Tab 4. The appellant also

refers to prior appeals he filed against the agency and he argues that there is a

pattern and practice of circumventing his and others’ veterans’ rights. PFR File,

Tab 1 at 6-13. The appellant asks the Board to reverse the initial decision and

remand his appeal for a hearing. PFR File, Tab 1 at 13-15. The agency

responded in opposition to the petition, and the appellant replied reasserting his

argument that he was improperly denied a hearing; arguing that he was qualified

for the position and entitled to priority placement; and that the agency improperly

closed the vacancy announcement without selecting him or providing a basis for

not filling the position. PFR File, Tab 2, Tab 4 at 9-13.

¶5 To be entitled to relief under the Veterans Employment Opportunities Act

of 1998 (VEOA), the appellant must prove by preponderant evidence that the

agency’s action violated one or more of his statutory or regulatory veterans’

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preference rights in its selection process. Graves v. Department of Veterans

Affairs, 114 M.S.P.R. 209, ¶ 10 (2010). A preponderance of the evidence is that

degree of relevant evidence that a reasonable person, considering the record as a

whole, would accept as sufficient to find that a contested fact is more likely to be

true than untrue. 5 C.F.R. § 1201.56(c)(2). The Board has the authority to decide

a VEOA appeal on the merits, without a hearing, where there is no genuine

dispute of material fact and one party must prevail as a matter of law. Haasz v.

Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 9 (2008). A factual dispute

is “material” if, in light of the governing law, its resolution could affect the

outcome. Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶ 14 (2006). A factual

dispute is “genuine” when there is sufficient evidence favoring the party seeking

an evidentiary hearing for the administrative judge to rule in favor of that party

should that party’s evidence be credited. Id.

¶6 Here, the appellant’s argument that the agency violated his veterans’ rights

under VEOA is a dispute of law, not a genuine dispute of material fact that

warrants a hearing. PFR File, Tab 1 at 4. It is undisputed that the agency did not

select any candidates who applied under either the DE or MP vacancy

announcements. ID at 2; IAF, Tab 6 at 7. The Board has recognized that there is

no statute or regulation that requires an agency to make a selection for a vacancy

announcement; to the contrary, the Board has observed that an agency can even

cancel or repost a vacancy announcement without making a selection. Ward v.

Office of Personnel Management, 79 M.S.P.R. 530, 534 (1998) (an agency has

discretion as to which sources it will use to fill its positions and may select or not

select from the applicants who respond to a vacancy announcement), aff’d,

194 F.3d 1333 (Fed. Cir. 1999) (Table); see Abell v. Department of the Navy,

343 F.3d 1378, 1384 (Fed. Cir. 2003) (finding that “[a]n agency may cancel a

vacancy announcement for any reason that is not contrary to law”). Although the

appellant argues that he was qualified for the positions, we agree with the

administrative judge’s finding that the agency’s decision not to select anyone for

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the PHA position under these vacancy announcements did not violate the

appellant’s rights under any statute or regulation related to veterans’ preference.

ID at 5.

¶7 Accordingly, because the unrebutted record evidence reflects that the

agency did not fill the PHA position, see IAF, Tab 6 at 7, 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. The appellant’s remaining arguments based on

review are not dispositive and present no basis for disturbing the initial decision.

We therefore deny the appellant’s petition for review.

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.

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

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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.