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-3330-14-0312-I-1

v.

DEPARTMENT OF HEALTH AND DATE: April 10, 2015

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL *

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

Melinda V. McKinnon, 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;

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 The appellant alleged that the agency violated his veterans’ preference

rights when it failed to select him for the open, continuous vacancy

announcement number HHS-CDC-OD-13-883025, Public Health Advisor, GS-

12/14, in various international locations. Initial Appeal File (IAF), Tab 1, Tab 6

at 56-63. Under an open, continuous vacancy announcement, the agency fills

vacancies at a particular grade level and location, as they become available. IAF,

Tab 19 at 17. The record reflects that the appellant exhausted his administrative

remedies before the Department of Labor and timely filed the instant appeal.

IAF, Tab 1 at 7-8.

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

judge did not hold the appellant’s requested hearing, id. at 2, and instead

adjudicated the appeal on the written record, denying the appellant’s request for

corrective action under VEOA, IAF, Tab 22, Initial Decision (ID). In his

timely-filed petition for review, the appellant alleged that the administrative

judge was biased against him and improperly denied his right to a hearing.

Petition for Review (PFR) File, Tab 1 at 4-16. The appellant also claims that the

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administrative judge erroneously determined that he is not entitled to priority

placement in the selection process and includes with his petition for review a

copy of his October 2009 Basic Eligibility Rating Sheet for a different position.

Id. at 16-19. The agency responded to the appellant’s petition for review and the

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

¶4 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). By its terms, vacancy

announcement HHS-CDC-OD-13-883025 was open to all United States citizens

and the agency indicated therein that it had concurrently issued another vacancy

announcement, number HHS-CDC-OM-13-883005, for the same position under

merit promotion procedures. IAF, Tab 6 at 56. The agency specifically advised

applicants that they must apply separately for each announcement in order to be

considered under both procedures. Id. The record does not reflect that the

appellant applied for the concurrent internal merit promotion vacancy

announcement.

¶5 The record shows that the agency requested candidates for GS-14 Public

Health Advisor vacancies in Malawi, Mozambique, Nigeria, South Africa, and

Zambia. Id., Tab 6 at 41-55. The agency filled the positions in Nigeria, South

Africa, and Zambia using the concurrent merit promotion announcement, HHS-

CDC-OM-13-883005. ID at 7; see IAF, Tab 19 at 21. An agency has the

discretion to fill a vacant position by any authorized method; the Board’s

reviewing court has held that there is nothing to prevent an agency from soliciting

applications simultaneously from both public and merit promotion applicants 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

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fill the same position” and selecting someone other than the veteran under the

merit promotion process); see also Dean v. Consumer Product Safety

Commission, 108 M.S.P.R. 137, ¶ 11 (2008).

¶6 The record also reflects that the agency did not fill the position in

Mozambique. ID at 7-8; IAF, Tab 19 at 21. There is no harm, and therefore no

VEOA violation, when, as here, an agency decides not to fill a particular vacancy.

Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶ 14, aff’d,

544 F. App’x 976 (Fed. Cir. 2013) (unpublished); cf., Scharein v. Department of

the Army, 91 M.S.P.R. 329, ¶ 10 (2002) (the agency is not required to fill a

particular vacancy and does not violate an applicant’s veterans’ preference rights

when it cancels a vacancy announcement and does not make a selection), aff’d,

No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).

¶7 Of the selections at issue, the record reflects that agency filled only the

position in Malawi using the vacancy announcement for which the appellant

applied, HHS-CDC-OD-13-883025. IAF, Tab 19 at 21. However, the agency

found that the appellant lacked the requisite qualifications for the position. Id.

at 16-20. Under 5 C.F.R. § 302.302(d), when experience is a factor in

determining eligibility, as it is in the instant matter, an agency shall credit a

preference-eligible like the appellant as follows:

(1) with time spent in the military service of the United States if the

position for which he/she is applying is similar to the position which

he/she held immediately before his/her entrance into the military

service; and

(2) with all valuable experience, including experience gained in

religious, civic, welfare, service, and organizational activities,

regardless of whether pay was received therefor.

¶8 Nevertheless, “VEOA does not enable veterans to be considered for

positions for which they are not qualified.” Lazaro v. Department of Veterans

Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (citing Ramsey v. Office of

Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000)). In the context of a VEOA

claim, the Board may examine whether an agency properly assessed an

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applicant’s qualifications as part of its analysis of whether the agency afforded

that individual, in accordance with relevant veterans’ preference statutes or

regulations, the right to compete for a position. Id. at 1321. In doing so, the

Board’s authority is limited to examining whether the hiring agency improperly

omitted, overlooked, or excluded any of the appellant’s experience in assessing

his or her qualifications for the position at issue, in order to ensure that the

agency considered and credited any experience material to the position.

Kirkendall v. Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009).

¶9 In his application for the position, the appellant indicated that GS-14 was

the lowest grade he would accept. IAF, Tab 6 at 4-5. The human relations

specialist responsible for making qualification determinations on the agency’s

behalf provided a sworn statement in which she described her comprehensive

review of the appellant’s application and explained her resulting determination

that the appellant lacked the requisite 1 year of specialized experience at or equal

to the GS-13 level and was therefore, as noted above, not qualified for the

position. ID at 3, IAF, Tab 19 at 16-20; see IAF, Tab 6 at 58. The administrative

judge found that the agency established by preponderant evidence that it did not

improperly omit, overlook, or exclude any of the appellant’s stated experiences or

work history in assessing his qualifications for the position. ID at 7. The

appellant identifies nothing on review to indicate that the administrative judge

erred in making this determination. 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). For the reasons described above, 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 without holding a hearing.

¶10 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

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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. IAF, Tab 13. 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. IAF, Tab 17. The appellant repeats his

arguments on review. PFR File, Tab 1 at 6-9. 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.

¶11 Lastly, we note that the appellant has identified no authority that would

provide him with eligibility for priority placement or require the agency, as the

appellant contends, to place him “ahead of virtually all other candidates for any

subsequent position.” PFR File, Tab 1 at 16-17. Regarding the document the

appellant submits on review, PFR File, Tab 1 at 19, under 5 C.F.R. § 1201.115,

the Board will not consider evidence submitted for the first time with the petition

for review absent a showing that it was unavailable before the record was closed

despite the party's due diligence. The appellant fails to make such a showing and

the document, which is dated long before the close of the record in this matter, is

not relevant to the issues in this appeal.

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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

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

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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.