King v. Department of Veterans Affairs ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DIANE KING,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2014-3208
______________________
Petition for review of the Merit Systems Protection
Board in Nos. AT-0330-12-0737-C-1, AT-0330-12-0739-C-
1, AT-0330-12-0741-C-1.
______________________
Decided: February 6, 2015
______________________
DIANE KING, of Prattville, AL, pro se.
DAVID MICHAEL KERR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
2 KING v. DVA
Before TARANTO, CLEVENGER, and CHEN, Circuit
Judges.
PER CURIAM.
Petitioner Diane King is a preference eligible veteran
who applied for three positions as a Medical Technologist
with the Department of Veterans Affairs (the “Agency”)
and was not hired. Ms. King appeals the final decision of
the Merit Systems Protection Board (the “Board”) denying
her petition for review of three initial Board decisions,
each of which denied Ms. King’s petition for enforcement
of a final Board order requiring that the Agency recon-
struct its hiring decision in accordance with veterans’
preference procedures. King v. Dep’t of Veterans Affairs,
Nos. AT-0330-12-0737-C-1, AT-0330-12-0739-C-1, AT-
0330-12-741-C-1 (M.S.P.B. Aug. 5, 2014) (Final Decision).
For the reasons set forth below, we affirm the decision
of the Board.
BACKGROUND
I
Ms. King is an honorably discharged veteran of the
United States Air Force. Parties do not dispute that she is
a “five-point” preference eligible veteran under the Veter-
ans Employment Opportunities Act of 1998 (“VEOA”).
Ms. King has been previously terminated from federal
employment twice. On October 18, 2006, she was removed
from her position as a Medical Technologist at the Central
Alabama Veterans Health Care System on charges of “(1)
copying and removing confidential medical records, and
(2) altering a patient's medical records a month after his
death by eliminating a notation and adding a personal
opinion regarding alleged specimen mishandling.” King v.
Dep't of Veterans Affairs, 276 F. App'x 993, 994 (Fed. Cir.
2008). The Board and this Court affirmed. Id.
KING v. DVA 3
On May 16, 2011, Ms. King was removed from her po-
sition as a Medical Technologist with the United States
Army at Fort Stewart. Ms. King filed an action before the
Board challenging the removal under the Whistleblower
Protection Act. The administrative judge dismissed,
finding clear and convincing evidence that the agency
would have removed for reasons of conduct her absent any
protected whistleblowing, and the Board affirmed. King v.
Dep’t of the Army, No. AT-1221-12-0143-W-3 (M.S.P.B.
Aug. 5, 2014). An appeal to this Court is pending. King v.
Dep’t of the Army, No. 2015-3005 (Fed. Cir. filed Oct. 2,
2014).
II
In February 2012, the Agency posted three job an-
nouncements for a total of five Medical Technologist
positions at the G.V. Montgomery Veterans Administra-
tion Medical Center in Jackson, Mississippi, to be filled by
competitive hiring. Ms. King applied under each an-
nouncement but was not hired. The Agency selected non-
preference eligible candidates as well as a different five-
point veteran.
Ms. King filed three VEOA appeals with the Board,
one per job announcement, alleging that the Agency had
violated her veterans’ preference rights and requesting
that it reconstruct its selection processes.
An administrative judge issued initial decisions grant-
ing her requests and ordering reconstruction. King v.
Dep’t of Veterans Affairs, No. AT-0330-12-0737-I-1
(M.S.P.B. Mar. 24, 2013); King v. Dep’t of Veterans Af-
fairs, No. AT-0330-12-0739-I-1 (M.S.P.B. Mar. 24, 2013);
King v. Dep’t of Veterans Affairs, No. AT-0330-12-0741-I-1
(M.S.P.B. Mar. 24, 2013). The administrative judge found
that the Agency had failed to use either of the two meth-
ods the VEOA allows for competitive positions—delegated
examining, 5 U.S.C. §§ 3304-18, and category rating, 5
U.S.C. § 3319—and ordered the Agency to reconstruct
4 KING v. DVA
each selection process in accordance with those require-
ments.
The Agency reconstructed the three processes and
again did not select Ms. King. Her applications were
referred to the Agency’s selecting official, who formally
requested permission to “pass over” Ms. King for reasons
of conduct under 5 C.F.R. § 731 and select a non-
preference eligible candidate. An accompanying memo-
randum from the selecting official explains that Ms. King
was “previously terminated from a federal facility” in
2006 and 2011 and had “submitted evidence of a poor
work history, showing a large time frame during which
there is no evidence of employment seen.” The Agency’s
Acting Chief of Human Resources approved the pass-over
request, which resulted in Ms. King’s non-selection. Final
Decision, slip op. at 2-3.
Ms. King petitioned the Board for enforcement of each
of the three reconstruction orders. In each case, the
administrative judge issued an initial decision denying
her petitions. King v. Dep’t of Veterans Affairs, No. AT-
0330-12-0737-C-1 (M.S.P.B. Nov. 15, 2013); King v. Dep’t
of Veterans Affairs, No. AT-0330-12-0739-C-1 (M.S.P.B.
Nov. 15, 2013); King v. Dep’t of Veterans Affairs, No. AT-
0330-12-0741-C-1 (M.S.P.B. Nov. 15, 2013). Although the
Agency had failed to use an approved selection method
during the reconstructions, the administrative judge
found that no further reconstruction was warranted
because the selecting official had reviewed Ms. King’s
application regardless and she therefore “did not suffer
any harm as a result of the agency’s error.” See, e.g., id. at
4.
Ms. King petitioned for review of these initial deci-
sions. The Board joined her appeals together and affirmed
as to all three. Final Decision, slip op. at 2. The Board
found that in each case, Ms. King’s application was re-
ferred to the selecting official, who requested and received
KING v. DVA 5
permission to pass over Ms. King due to her disciplinary
record and employment history. Id. at 2-3. It further
concluded that the Agency had been properly delegated
authority to make this decision as to veterans in Ms.
King’s position. Id. (citing 5 C.F.R. § 332.406(a)). There-
fore, although the Agency had failed to perform a proper
reconstruction, the Board found as a matter of fact that
its error was harmless because “the evidence shows that
the agency would not have selected the appellant regard-
less of which procedures it followed because of her poor
employment record.” Id. at 3.
DISCUSSION
Our review of Board decisions is limited by statute.
Except in circumstances not relevant here, we can set a
Board decisions aside only if it is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c).
I
On appeal, Ms. King contends that the Agency used
an unapproved hiring method during the reconstructed
selection processes. The Board has already ruled that this
is so: “[W]e agree with the administrative judge that the
agency did not perform a proper reconstruction in these
cases.” Final Decision, slip op. at 3. The issue now is the
Board’s further conclusion that Ms. King would not have
been selected regardless of the faulty process she received.
Id.; see also Marshall v. Dep't of Health & Human Servs.,
587 F.3d 1310, 1316 (Fed. Cir. 2009) (reconstruction is a
proper remedy for a VEOA violation where the agency
would have selected the veteran absent the violation).
We conclude that the Board’s conclusion is supported
by substantial evidence. During the reconstructions, the
Agency’s selecting official requested permission to pass
6 KING v. DVA
over Ms. King’s application, and received such permission
from the Agency’s Chief of Human Resources. Final
Decision, slip op. at 2-3. Had the Agency applied one of
the approved selection procedures, Ms. King’s application
would have at best been sent to the selecting official and
passed over.
Ms. King now challenges the pass-over determination.
She first contends that the Agency lacked authority to
make the determination internally. The Agency has this
authority from the Office of Personnel Management,
which “has delegated to agencies the authority to adjudi-
cate objections to eligibles, including pass over requests,”
with exceptions not applicable here. 5 C.F.R. § 332.406(a).
Ms. King also contends that her prior terminations
and periods of unemployment were not adequate reasons
to pass over her application. She further suggests that,
because it is currently on appeal to this Court, her 2011
termination from Fort Stewart is not evidence of poor
work history.
Pass-over decisions must be based on “a proper and
adequate reason,” 5 C.F.R. § 332.406(b), including
“[m]isconduct or negligence in employment,” 5 C.F.R.
§ 731.202(b)(1). The Agency and the Board are not barred
from considering past conduct that is subject to judicial
review. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7
(2001).
In 2006, Ms. King was terminated “due to the seri-
ousness of her misconduct—altering, copying, and remov-
ing confidential medical records . . . .” King, 276 Fed.
App’x. at 995-96 (affirming the Board’s finding). The
Agency’s selecting official referred to Ms. King’s 2006
termination, among other reasons, when requesting to
pass over her candidacy for reasons of conduct under 5
C.F.R. § 731.202.
KING v. DVA 7
The Board’s finding that the Agency “would not have
selected the appellant regardless of which procedures it
followed because of her poor prior employment record” is
supported by substantial evidence. Final Decision, slip op.
at 3. The 2006 termination, even alone, supports the
Board’s determination that due to the lawful exercise of
the Agency’s pass-over authority, there is no further relief
that Ms. King can be awarded for the earlier violations of
her veterans’ preference rights.
CONCLUSION
For the reasons stated above, we affirm the Board’s
final decision, which denied Ms. King’s petitions for
review and affirmed the administrative judge’s initial
decisions denying her petitions for enforcement of the
reconstruction orders.
AFFIRMED
COSTS
No costs.