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-3330-14-0413-I-1

DE-3330-14-0342-I-1

v. DE-3330-14-0344-I-1

DE-3330-14-0351-I-1

DEPARTMENT OF HEALTH AND DE-3330-14-0354-I-1

HUMAN SERVICES, DE-3330-14-0372-I-1

Agency.

DATE: APRIL 10, 2015

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

Melinda V. McKinnon, Esquire, and Robert L. Thomas, Atlanta, Georgia,

for the agency.

Sara M. Klayton, 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 the appellant’s request for corrective action under the Veterans

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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; 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 As the parties are familiar with the facts of this case, we are only reciting

the background facts necessary to frame and decide the issues presented by the

appellant on review. The appellant filed six separate VEOA appeals alleging that

the Department of Health and Human Services (HHS), Centers for Disease

Control and Prevention (CDC), violated his veterans’ preference rights by failing

to select him for the Public Health Advisor positions advertised under the

following individual delegated examining announcements open to all United

States citizens: HHS-CDC-D2-14-1075176 (Vacancy ID 75176) (MSPB Docket

No. DE-3330-14-0413-I-1 (0413)), HHS-CDC-D3-14-1036324 (Vacancy ID

36324) (MSPB Docket No. DE-3330-14-0342-I-1 (0342)), HHS-SAMHSA-DE-

XX-XXXXXXX (Vacancy ID 34969) (MSPB Docket No. DE-3330-14-0344-I-1

(0344)), HHS-CDC-D4-14-1081377 (Vacancy ID 81377) (MSPB Docket No.

DE-3330-14-0351-I-1 (0351)), HHS-SAMHSA-DE-13-843240 (Vacancy ID

843240) (MSPB Docket No. DE-3330-14-0354-I-1 (0354)), HHS-SAMHSA-DE-

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XX-XXXXXXX (Vacancy ID 05201) (MSPB Docket No. DE-3330-14-0372-I-1)

(0372)). 0413, Initial Appeal File (IAF), Tab 1; 0342, IAF, Tab 1; 0344, IAF,

Tab 1; 0351, IAF, Tab 1; 0354, IAF, Tab 1; 0372, IAF, Tab 1. The administrative

judge joined the appeals and found that the Board has jurisdiction over the joined

appeals, pursuant to 5 U.S.C. § 3330a(a)(1), with respect to the appellant’s

allegation that the agency failed to properly credit his experience in violation

of 5 U.S.C. § 3311, which he exhausted at the Department of Labor (DOL).

0413, IAF, Tab 8, Tab 31, Initial Decision (ID) at 1-2. The administrative judge

further found that he lacked jurisdiction over the appellant’s other claims because

he failed to exhaust those claims at DOL. 2 ID at 5.

¶3 Because the administrative judge found no genuine dispute of material fact,

the administrative judge denied the appellant’s request for corrective action

without holding a hearing. ID at 2. With respect to Vacancy IDs 1036324,

1048446, 1081377, 1105201, 1075176, the administrative judge found in

pertinent part that the agency’s human resources specialists considered all of the

appellant’s valuable experience in his application packages and determined that

he was not eligible because he lacked the required specialized experience set

forth in the vacancy announcements. ID at 6-9, 12-13. The administrative judge

further found that appellant did not allege that the agency improperly omitted,

overlooked, or excluded any part of his 30-page resume in making its

determination. ID at 6-9, 12-13. With respect to Vacancy ID 843240, the

administrative judge found that the agency accidentally reposted the

announcement in 2014 and cancelled it, without selecting any of the applicants,

2

The administrative judge found that he lacked jurisdiction over the appellant’s

allegations that: the agency failed to maintain a system that fairly tests the relative

capacity and fitness of the applicants sought in vio lation of 5 U.S.C. § 3304(a)(1); the

agency’s determination was age discrim ination and thereby violated an unspecific

veterans’ preference right recognized by VEOA; and the agency’s determination was

the product of violations of 5 U.S.C. § 2302(b)(6), and thereby violated an unspecified

veterans’ preference right recognized by VEOA. ID at 5.

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because the agency originally posted the vacancy announcement and filled the

vacancy in 2013. ID at 11-12. Based on the foregoing, the administrative judge

found that the agency did not violate 5 U.S.C. § 3311 or any other law relating to

veterans’ preference. ID at 13.

¶4 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).

Under 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d), the Board’s role is limited

to determining whether the hiring agency improperly omitted, overlooked, or

excluded a portion of the appellant’s experiences or work history in assessing his

qualifications for the vacancy, and the Board will not reevaluate the weight the

agency accorded these experiences in reaching its decision that the appellant was

not qualified for a given position of employment. Miller v. Federal Deposit

Insurance Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).

¶5 On review, the appellant argues that the administrative judge’s refusal to

hold a hearing severely and wrongfully compromised his ability to question the

legality of the agency’s actions with regard to Vacancy IDs 1036324, 1048446,

1081377, 1105201, 1075176; however he fails to identify a genuine dispute of

material fact requiring a hearing. Petition for Review (PFR) File, Tab 1 at 5.

Instead, in his petition for review, he primarily discusses his prior VEOA appeals,

the Board’s obligations to veterans, and a recent study published by the Board on

recruitment and open competition for federal jobs. Id. at 4-13.

¶6 Contrary to the appellant’s arguments on review, the administrative judge

properly decided this VEOA appeal on the merits without a hearing because the

record on the dispositive issues was fully developed on appeal, the appellant had

a full and fair opportunity to dispute the agency’s evidence, and there is no

genuine dispute of material fact. See Dean v. Consumer Product Safety

Commission, 108 M.S.P.R. 137, ¶ 10 (2008). VEOA only prohibits an agency

from denying a preference eligible the opportunity to compete; it does not provide

5

that veterans will be considered for positions for which they are not qualified.

See Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006). The

agency ultimately determined that the appellant was not qualified for the Public

Health Advisor positions announced under Vacancy IDs 1036324, 1048446,

1081377, 1105201, 1075176, and the appellant’s arguments on review do not

show that the agency violated one or more of his statutory or regulatory veterans’

preference rights by failing to select him for any of those positions. PFR File,

Tab 1; ID at 6-9, 12-13.

¶7 As explained in the agency’s submissions below and in the initial decision,

the agency accepted applications under the remaining vacancy announcement,

specifically Vacancy ID 843240, but the agency cancelled the 2014 vacancy

announcement after discovering that it was an accidental reposting of a vacancy

that was posted and filled in 2013. ID at 10-12; 0413, IAF, Tab 23, at 65-67;

0354, IAF, Tab 12 at 10. An agency does not violate a preference-eligible

veteran’s rights under VEOA when it cancels a vacancy announcement rather than

select him. Dean, 108 M.S.P.R. 137, 142, ¶ 11. The appellant disputes that the

agency reposted Vacancy ID 843240 due to an administrative error, and he argues

that the more likely scenario is that the agency hired a less qualified, non-veteran

friend of the hiring authority. PFR File, Tab 1 at 5, 14-16. Although the

appellant is skeptical about the veracity of the agency’s explanation for

cancelling Vacancy ID 843240, the agency provided a lawful reason for the

cancellation and the appellant offers no new evidence or argument on review

proving that the agency’s action violated a statute or regulation relating to

veterans’ preference laws. 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”). Moreover, the

appellant fails to identify any evidence to support his theory that the agency filled

the announced vacancy by hiring “a less qualified, non-veteran friend of the

hiring authority.” PFR File, Tab 1 at 14.

6

¶8 On review, the appellant challenges the administrative judge’s finding that

the Board lacks jurisdiction to consider the claims that he failed to exhaust at

DOL, and he attempts to reassert those claims on review. PFR File, Tab 1 at

17-19; ID at 5; see supra ¶ 2 n.2. Although the Board uses a liberal pleading

standard for allegations of violations of veterans’ preference in a VEOA appeal,

evidence of the exhaustion requirement is mandatory under the statute and is not

subject to the same liberal construction. Mims v. Social Security

Administration, 120 M.S.P.R. 213, ¶ 24 (2013). Because the appellant offers no

new proof that he satisfied the exhaustion requirement with respect to any

additional claims on review, the Board has no jurisdiction to consider them.

¶9 The appellant raises additional arguments on review that are not dispositive

and provide no basis for disturbing the initial decision denying his request for

corrective action under VEOA. We therefore deny the 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).

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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.