Bazan v. Department of the Army ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN F. BAZAN,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2015-3105
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3330-13-4195-I-1.
______________________
Decided: February 26, 2016
______________________
JOHN F. BAZAN, Whittier, CA, argued pro se.
ERIN MURDOCK-PARK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
______________________
Before MOORE, O’MALLEY, and WALLACH, Circuit
Judges.
2 BAZAN v. ARMY
MOORE, Circuit Judge.
John F. Bazan appeals from the final decision of the
Merit Systems Protection Board (“Board”) affirming the
administrative judge’s denial of his Veterans Employment
Opportunities Act (“VEOA”) claim. Bazan v. Dep’t of
Army, No. SF-3330-13-4195-I-1, 2015 WL 247444
(M.S.P.B. Jan. 15, 2015). We affirm.
BACKGROUND
Mr. Bazan is a preference-eligible Contracts Attorney
with the Department of the Army, U.S. Army Corps of
Engineers (“USACE”). In 2013, Mr. Bazan applied for the
excepted service position of Deputy District Counsel for
the USACE Los Angeles District. Of the forty-six eligible
candidates, USACE interviewed three candidates, includ-
ing Mr. Bazan. All three interviewed candidates were
attorneys with the USACE Los Angeles District. The
hiring panel selected a non-veteran for the position,
explaining in a memo that the selectee’s “knowledge,
skills, ability, potential and performance during the
interview placed her as the superior candidate for selec-
tion.” J.A. 38. Mr. Bazan was the “third ranked candi-
date.” Id.
Mr. Bazan filed a claim with the Board, arguing that
his veterans’ preference rights were violated. The admin-
istrative judge explained that the Board lacked jurisdic-
tion to review Mr. Bazan’s qualifications for the position,
but nonetheless explained that ample evidence showed
that the agency considered all of the candidates and
properly documented its selection of a different candidate.
The administrative judge found that the hiring panel
considered Mr. Bazan’s status as a veteran “positive,” and
that this was enough to satisfy the “wholly nondirective”
and “extreme[ly] vague[]” veterans’ preference require-
ment for excepted positions. J.A. 19. The Board affirmed,
with one judge dissenting. Mr. Bazan appeals.
BAZAN v. ARMY 3
DISCUSSION
We have jurisdiction over Mr. Bazan’s appeal of the
Board’s final decision. 28 U.S.C. § 1295(a)(9). We must
set aside the Board decision if we find it “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance 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). We review the Board’s decision about its juris-
diction without deference. Butler v. Soc. Sec. Admin., 331
F.3d 1368, 1371–72 (Fed. Cir. 2003).
Mr. Bazan’s primary complaint in this case is that the
Army was engaging in prohibited personnel practices
under 5 U.S.C. § 2302(b) by manipulating the job descrip-
tion for the purpose of improving the selectee’s prospects
for employment. He does not dispute, however, that the
Board lacks jurisdiction to hear such claims. See Schmidt
v. Dep’t of Interior, 153 F.3d 1348, 1356 (Fed. Cir. 1998)
(Ҥ 2302(b) is not an independent source of appellate
jurisdiction and does not by itself authorize an appeal to
the Board.”). We see no error in the Board’s decision that
the administrative judge correctly informed Mr. Bazan
that the alleged prohibited personnel practices are not
cognizable claims within a VEOA appeal, and denied
Mr. Bazan’s motion for discovery relating thereto.
Mr. Bazan also argues that the administrative judge
and the Board erred in declining to reevaluate the merits
of the agency’s determination on his qualifications. He
points out that under the Department of Defense Instruc-
tions (“DoDI”), a “selecting official must select the prefer-
ence-eligible veteran as opposed to an equally well
qualified, non-preference-eligible candidate” so long as
“all relevant considerations for the position are deemed
equal.” DoDI No. 1442.02 (Sept. 30, 2010), Enclosure 3
(Procedures for All DoD Civilian Attorney Positions),
¶ 2(f)(1). He argues that in order to review whether this
4 BAZAN v. ARMY
concrete requirement was properly followed by the Army,
the Board should have determined whether or not he and
the selectee were “equally well qualified” by reevaluating
their qualifications for the position.
We decline to reach the issue of the Board’s jurisdic-
tion to review whether Mr. Bazan was as equally well
qualified as the selectee. Under any reading of the record,
Mr. Bazan was not “equally well qualified” such that the
Army must have selected Mr. Bazan over the selectee
under DoDI No. 1442.02. The job description required
specialized experience in environmental law, and the
agency determined that Mr. Bazan was a weaker candi-
date than the selectee because the selectee regularly
reviewed and provided extensive comments upon envi-
ronmental reports, whereas Mr. Bazan had no significant
experience with environmental law issues. The undisput-
ed record shows that the selectee was the more qualified
candidate for the vacant position as described in the
position description. In fact, Mr. Bazan ranked third of
the three interviewed candidates.
CONCLUSION
We have considered Mr. Bazan’s additional argu-
ments and conclude that they do not warrant a different
result. Because we find no reversible error in the Board’s
decision affirming the administrative judge’s denial of
Mr. Bazan’s VEOA claim, we affirm.
AFFIRMED
COSTS
No costs.