The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0396-I-1
v.
DEPARTMENT OF HEALTH AND DATE: April 18, 2016
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Duane Phillips, Rockville, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND 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) without a hearing. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND the case to the field office for further adjudication in
accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a five-point preference-eligible veteran, submitted
applications for both a merit promotion and a competitive vacancy announcement
for a Public Health Advisor GS-12/13 position. Initial Appeal File (IAF), Tab 6
at 27-33, Tab 14 at 9-15. In its initial notice of results, the agency informed the
appellant that he was not “VEOA eligible.” IAF, Tab 12 at 16. The appellant
subsequently exhausted his remedies with the Department of Labor (DOL), and
the agency agreed to resolve his complaint by properly referring his application to
the hiring board as a preference eligible. See Jones v. Department of Health &
Human Services, MSPB Docket No. DE-3330-15-0106-I-1, Initial Decision
(Mar. 25, 2015). The appellant filed a VEOA appeal challenging the agency’s
initial eligibility determination, but the administrative judge denied the
appellant’s request for corrective action, finding, inter alia, that the agency
recognized its error and corrected it and that the appellant had suffered no
damage as a result because he still was being considered for the position. Id.
at 4-5. The appellant did not file a petition for review of that initial decision.
¶3 The agency interviewed the appellant for a position under the merit
promotion announcement, IAF, Tab 8 at 58-81, and eventually hired two other
candidates, neither of whom was preference eligible. Id. at 5. The appellant filed
the instant appeal after exhausting his remedy a second time with DOL. IAF,
Tab 1. In his appeal, he alleged that the agency did not consider his military
experience, engaged in prohibited personnel practices, and failed to comply with
Office of Personnel Management (OPM) regulations regarding the selection
process. Id. The agency responded that, under merit promotion procedures, it
was required to provide the appellant only the right to compete for the vacancy
when it accepted applications from outside its own workforce and was not
3
required to select a preference eligible over another candidate. IAF, Tab 14 at 5.
The agency further argued that it complied with VEOA by referring the appellant
to the selecting official and giving him an interview. Id. at 6.
¶4 The administrative judge issued an initial decision finding that, although the
Board had jurisdiction over the appeal pursuant to 5 U.S.C. § 3330a(a)(1)(A),
there was no genuine issue of material fact requiring a hearing, and denying the
appellant’s request for corrective action under VEOA based upon the parties’
written submissions. IAF, Tab 17, Initial Decision (ID). Specifically, he found
that the appellant’s status as a veteran did not afford him a priority in the
selection process at issue and that the agency clearly showed that he was
otherwise afforded a legitimate opportunity to compete. ID at 4-5. He also found
that, contrary to the appellant’s arguments, the agency’s initial mistake in finding
that he was not a preference eligible did not entitle him to priority consideration.
ID at 5-6.
¶5 The appellant has filed a timely petition for review in which he appears to
assert that: (1) the administrative judge was biased in favor of the agency; (2) the
agency should have provided him priority consideration, regardless of whether
the selection was made from a merit promotion list; and (3) the interview he
received was not genuine. Petition for Review (PFR) File, Tab 1 at 7-8, 12, 17,
19. He also argues that the Board should remand the appeal for a hearing. Id.
at 21-22. In support of his entitlement to a hearing, he asserts that he received a
hearing in a Uniformed Services Employment and Reemployment Rights Act of
1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) appeal regarding the same
announcement. Id. at 19. The agency has not responded to the appellant’s
petition for review.
¶6 Contrary to the appellant’s argument on review, PFR File, Tab 1 at 16-17,
we agree with the administrative judge that he was not entitled to priority
consideration. ID at 5-6. The administrative judge noted the appellant’s
argument that he was entitled to priority consideration because of the agency’s
4
initial mistake in finding that he was not a preference eligible and characterized
this argument as relying on the OPM’s Delegated Examining Operations
Handbook (DEOH). Id. (citing OPM, DEOH, 2007: A Guide for Federal Agency
Examining Offices (May 2007), Chapter 6, Subsection E, available at
http://www.opm.gov/deu/handbook_2007/deo_handbook.pdf). The DEOH,
Chapter 6, Subsection E defines priority consideration as “a special placement
priority that is given to an eligible [veteran], who was previously denied
consideration due to an administrative error or law or regulatory violation.”
However, the administrative judge found that this provision did not apply to this
case because: (1) the DEOH does not apply to merit promotions; and (2) the
instant case does not involve the “denial of consideration” as the agency’s error
in finding that the appellant was not a preference eligible was corrected in time
for him to be considered and interviewed for the position. ID at 6. We see no
reason to disturb this finding. See DEOH, Introduction, Chapter 6, Subsection E.
¶7 We also find that the appellant has not shown that the administrative judge
was biased. PFR File, Tab 1 at 7-8. 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. Asatov v. Agency for
International Development, 119 M.S.P.R. 692, ¶ 14 (2013) (finding that, when the
record reflected merely the appellant’s dissatisfaction with the administrative
judge’s adjudicatory rulings in his VEOA appeal, he did not establish bias on the
administrative judge’s part), overruled on other grounds by Dean v. Department
of Labor, 122 M.S.P.R. 276, ¶ 15 n.6 (2015).
¶8 The appellant argues that the interview he received was not genuine because
the agency already had offered the position to another applicant. PFR File, Tab 1
at 17-18. A preference-eligible veteran must be afforded the right to compete
under merit promotion procedures for vacancies for which an agency is accepting
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applications from outside its workforce. Dean v. Office of Personnel
Management, 115 M.S.P.R. 157, ¶ 28 (2010) (citing 5 U.S.C. § 3304(f)(1);
5 C.F.R. § 335.106). To comply with veterans’ preference statutes and
regulations, an agency must provide a veteran with a bona fide opportunity to
compete. See Phillips v. Department of the Navy, 114 M.S.P.R. 19, ¶ 21 (2010).
For the reasons set forth below, we find that the appellant is entitled to a hearing
regarding his claim that the agency did not provide him a bona fide opportunity
to compete.
¶9 The selecting official made initial selections on November 24, 2014, IAF,
Tab 12 at 9, more than 1 week before the agency corrected the error regarding the
appellant’s VEOA eligibility, id. at 16. After determining that it erroneously had
excluded the appellant from consideration, the agency interviewed the appellant.
IAF, Tab 8 at 58-81. The same panel that interviewed the appellant also
interviewed other candidates, including the selectees. Compare IAF, Tab 8
at 34-57 (interview notes for selectee V.A.), with IAF, Tab 8 at 58-61 (interview
notes for the appellant). The agency asserted that the panel fairly considered the
candidates but that the appellant was not selected because he scored lower than
the other candidates on his interview. IAF, Tab 8 at 7. However, it is unclear
from the record whether the agency actually offered the position to the
individuals identified in the selecting official’s November 24, 2014 email and, if
so, whether such offers were rescinded before the agency interviewed the
appellant. 2 Thus, it is not entirely clear from the existing record that the
appellant’s opportunity to compete was bona fide.
¶10 The Board has the authority to decide the merits of a VEOA appeal without
a hearing if there is no genuine dispute of material fact and one party must prevail
2
The agency made several representations about the selection process in pleadings
below. IAF, Tabs 8, 14. However, the statements of a party’s representative in a
pleading do not constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R.
163, 168 (1995).
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as a matter of law. Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349,
¶ 9 (2008). We find that there is a genuine dispute of material fact regarding the
process by which the agency made its selections after determining that it had
erred initially by excluding the appellant from consideration. We therefore
remand the appeal to the field office for a hearing. Although it is entirely
possible that the agency provided the appellant with a bona fide opportunity to
compete for the position at issue in this case, see Downs v. Department of
Veterans Affairs, 110 M.S.P.R. 139, ¶ 13 (2008) (finding that the appellant
was not denied the right to compete for the position at issue when he was
interviewed for the position and his name was among those forwarded to the
selecting official for consideration), we cannot conclude from the existing record
that the agency must prevail as a matter of law. 3
ORDER
¶11 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
3
In his petition for review, the appellant refers to evidence, including hearing
testimony, that appears to be part of the record in his USERRA appeal. PFR File, Tab 1
at 15. If the appellant wishes to have any such evidence considered in this appeal, he
should submit it on remand.