The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0480-I-1
v.
DEPARTMENT OF HEALTH AND DATE: April 4, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Susan M. Andorfer, Esquire, James E. Simpson, and Sara M. Klayton,
Esquire, Washington, D.C., for the agency.
Robert E. Nerthling, II, 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 corrective action under the Veterans Employment Opportunities Act
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
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 administrative 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, 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).
BACKGROUND
¶2 The appellant submitted his application for Vacancy Announcement
HHS-SAMHSA-DE-15-1268057, for the position of Lead Public Health Advisor,
GS-0685-14. Initial Appeal File (IAF), Tab 12 at 14-47. However, prior to the
closing date of the announcement, the agency cancelled the vacancy because the
vacancy being advertised “did not in fact exist.” Id. at 7, 52. After timely filing
a complaint and exhausting his remedies with the Department of Labor, the
appellant filed the instant appeal challenging his nonselection under VEOA and
requested a hearing. 2 IAF, Tab 1.
2
After filing this appeal, the appellant filed a motion alleging that his nonselection
constituted a violation of the Uniformed Services Employment and Reemployment
Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333). IAF, Tab 5. This claim was
docketed as a separate appeal, Jones v. Department of Health & Human Services, MSPB
Docket No. DE-4324-15-0496-I-1, which is currently pending before the
administrative judge.
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¶3 The administrative judge found that there was no genuine dispute of
material fact and thus notified the parties that she would decide the appeal
without a hearing. IAF, Tab 15. She therefore issued her decision based upon the
parties’ written submissions. IAF, Tab 18, Initial Decision (ID) at 2.
Specifically, she denied corrective action, finding that, because the agency
did not make a selection, the appellant’s VEOA rights were not violated. ID
at 3-4. The appellant has filed a timely petition for review in which he argues
that: (1) he should have been entitled to a hearing; (2) the administrative judge
was biased in favor of the agency; (3) the agency discriminated against him based
upon age; and (4) the agency may have been untruthful in stating that it did not
make a selection. Petition for Review (PFR) File, Tab 1 at 6, 8, 12, 15. The
agency has responded in opposition to the appellant’s petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 First, we find that the administrative judge properly decided the appeal
based upon the written record. The Board’s regulations permit the adjudication
of a VEOA claim on the merits without a hearing. 5 C.F.R. § 1208.23(b). The
Board has interpreted this regulation as allowing an administrative judge to deny
a hearing request in a VEOA case when there is no genuine dispute of material
fact and one party must prevail as a matter of law. Williamson v. U.S. Postal
Service, 106 M.S.P.R. 502, ¶ 8 (2007). Here, the agency cancelled the vacancy
announcement that is the subject of the appellant’s VEOA challenge and never
made a selection. IAF, Tab 12 at 7, 52. The Board has held that it is within the
agency’s authority and does not violate an appellant’s veterans’ preference rights
to cancel a vacancy announcement before filling the vacancy. See, e.g., Graves v.
Department of Veterans Affairs, 114 M.S.P.R. 245, ¶ 29 (2010). Thus, the agency
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must prevail as a matter of law and the administrative judge properly decided this
appeal without a hearing. 3
¶5 Next, we find that the appellant has not demonstrated that the
administrative judge was biased. In making a claim of bias or prejudice against
an administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. See Oliver v. Department
of Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s conclusory
allegations do not meet this heavy burden. See Asatov v. Agency for International
Development, 119 M.S.P.R. 692, ¶ 14 (2013) (finding that, where the record
merely reflected the appellant’s dissatisfaction with the administrative judge’s
adjudicatory rulings in his VEOA appeal, he did not establish administrative
judge bias), overruled on other grounds by Dean v. Department of Labor,
122 M.S.P.R. 276 (2015).
¶6 We also find that the appellant’s claim of age discrimination does not
provide a basis for disturbing the initial decision because the Board lacks
jurisdiction to decide claims of age discrimination in a pure VEOA appeal.
Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 18 (2006). The
appellant’s remaining arguments constitute mere disagreement with the
administrative judge’s findings and conclusions and thus do not provide a basis
3
The appellant generally asserts on review that the agency may have been untruthful in
its assertion that it did not make a selection. PFR File, Tab 1 at 15. However, he
did not present this assertion below and has not shown that it is based upon new and
material evidence. Thus, we do not consider it. See Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980) (the Board will not consider evidence submitted for the first
time on review absent a showing that it was unavailable before the record closed below
despite the party’s due diligence); 5 C.F.R. § 1201.115(d). Furthermore, even if we did
consider this assertion, it would not provide a basis for remanding the appeal for a
hearing. This general assertion does not constitute the type of evidence or argument
that would support a finding of a genuine dispute of material fact entitling the appellant
to a hearing. See Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009)
(a factual dispute is genuine if 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).
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for disturbing the initial decision. Weaver v. Department of the Navy, 2 M.S.P.R.
129, 133–34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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for Merit Systems Protection Board appellants before the Federal Circuit. 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.