Price v. Department of Housing & Urban Development ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARRY L. PRICE,
Petitioner
v.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent
______________________
2015-3014
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-4324-12-0740-I-1.
______________________
Decided: May 7, 2015
______________________
LARRY L. PRICE, Belleville, IL, pro se.
MATTHEW PAUL ROCHE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,
STEVEN J. GILLINGHAM.
______________________
2 PRICE v. HUD
Before PROST, Chief Judge, LOURIE and CHEN, Circuit
Judges.
PER CURIAM.
Larry L. Price petitions for review of a final order of
the Merit Systems Protection Board (“Board”) denying his
requests for corrective action under the Veterans Em-
ployment Opportunities Act (“VEOA”) and the Uniformed
Services Employment and Reemployment Rights Act
(“USERRA”). We must affirm the Board’s decision unless
it was “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Because Mr. Price has not
shown any reversible error by the Board, we affirm the
Board’s decision.
DISCUSSION
Federal agencies can use two types of selection pro-
cesses to fill vacancies. Joseph v. FTC, 505 F.3d 1380,
1381 (Fed. Cir. 2007). One process is competitive exami-
nation that is open to non-agency employees. Id. In a
competitive examination, the selecting official chooses
from a list of qualified candidates, each given a numerical
rating. Id. As a preferential treatment, the numerical
ratings for veterans in competitive examinations are
increased. Id. (citing 5 U.S.C. § 3309). The other selec-
tion process is merit promotion, which is typically limited
to agency employees and certain other federal employees.
Id. VEOA created a new preferential treatment for
veterans to compete through the merit promotion process
that would have been otherwise closed to them. See 5
U.S.C. § 3304(f)(1); 5 C.F.R. § 335.106 (“Special selection
procedures for certain veterans under merit promotion.”).
Id. However, the veterans’ rating bonus available in
competitive examinations does not apply in merit promo-
tions. Joseph, 505 F.3d at 1382; see 5 U.S.C. § 3304(f)(3).
PRICE v. HUD 3
The Department of Housing and Urban Development
(“HUD”) advertised the General Engineer and Project
Manager vacancies in St. Louis at issue under both the
merit promotion and competitive examination announce-
ments. Mr. Price applied for the General Engineer vacan-
cy through both announcements and for the Project
Manager vacancy through only the merit promotion
announcement. He was not selected for either vacancy.
Mr. Price challenges his non-selection for the General
Engineer vacancy as violating both VEOA and USERRA.
Mr. Price challenges his non-selection for the Project
Manager vacancy as violating USERRA.
Under USERRA, Mr. Price argues that HUD’s use of
dual announcements under both the competitive exami-
nation and the merit promotion procedures was per se
discriminatory against veterans. Mr. Price contends that
HUD cannot prove that it would have made the same non-
selection of him in the absence of his status as a veteran.
Mr. Price’s contention is misplaced, however, because
he bears “the initial burden of showing” that his military
service was “a substantial or motivating factor” in the
adverse employment action. See Sheehan v. Dep’t of the
Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (quoting
NLRB v. Transp. Mgmt. Corp., 462 U.S 393, 400-01
(1983)). We find no error in the conclusions by the Board
and the administrative judge that Mr. Price failed to
provide any evidence to carry his initial burden. Indeed,
if Mr. Price were not a veteran, he would not receive any
rating bonus in competitive examinations and would not
have been allowed to apply for merit promotions. In that
scenario, there is nothing in the record to suggest that
Mr. Price would have been selected for either vacancy at
issue.
Under VEOA, Mr. Price’s grievance on his non-
selection for the General Engineer vacancy centers on his
lack of a rating bonus on the merit promotion list of
4 PRICE v. HUD
qualified candidates. HUD filled this vacancy with a
candidate who received a 100.00 rating on the merit
promotion list at grade 13. Mr. Price, included on the
merit promotion list at grade 12, also received a 100.00
rating. According to Mr. Price, if he had received a 5-
point bonus, his rating would have been 105, thus enti-
tling him to be selected for this vacancy. Mr. Price
acknowledges, however, that he would only receive the
rating bonus in competitive examinations. Mr. Price thus
advances two key contentions.
First, Mr. Price contends that the Board and the ad-
ministrative judge were wrong in finding that HUD had
not prepared a list of qualified candidates from the paral-
lel competitive announcement. Mr. Price believes that a
list of qualified candidates from the parallel competitive
announcement was prepared and that he was listed with
the highest rating because of the veterans’ rating bonus.
See J.A. 25. Mr. Price argues that HUD denied the exist-
ence of a competitive examination list for this vacancy to
justify his non-selection. In support, Mr. Price quotes
from the selecting official’s memorandum documenting
that she reviewed the “selection rosters for the subject
position.” Pet’r’s Br. 8. The use of the plural form “ros-
ters” along with a subject line referring to both merit
promotion and competitive announcements, according to
Mr. Price, meant that the selecting official had the list of
qualified candidates from both announcements in her
possession.
This inference suggested by Mr. Price, however, was
contradicted by direct evidence in the record. The select-
ing official testified that she made the final selection from
the merit promotion list of qualified candidates without
waiting for the competitive examination list because of
time constraints imposed by the end of the fiscal year.
See J.A. 72-73, 98. This testimony was corroborated by
HUD’s human resources specialist who was in charge of
issuing the lists of qualified candidates in competitive
PRICE v. HUD 5
examinations. J.A. 105-06. The human resources special-
ist further explained that competitive examinations
usually receive far more applicants and thus their lists of
qualified candidates take longer to prepare than for merit
promotions. Id. As such, there was substantial evidence
to support the Board’s factual finding that the list of
candidates from the parallel competitive announcement
was not prepared.
Second, Mr. Price contends that HUD violated VEOA
by failing to consider candidates under competitive exam-
ination procedures. Specifically, Mr. Price argues that
when an agency makes dual announcements under both
the merit promotion and competitive examination proce-
dures, VEOA requires the agency to consider veterans
who applied through both announcements under both
processes. Mr. Price’s position is not supported by VEOA.
Under VEOA, “[a]n agency’s simultaneous use of the
competitive process and the merit promotion process is
not of itself a violation of veterans preference.” Dean v.
Consumer Prod. Safety Comm’n, 548 F.3d 1370, 1373
(Fed. Cir. 2008). VEOA provides that eligible veterans
“may not be denied the opportunity to compete for vacant
positions for which the agency . . . will accept applications
from individuals outside its own workforce under merit
promotion procedures.” 5 U.S.C. § 3304(f)(1). We have
explained that VEOA guarantees veterans “only a right to
apply and an opportunity to compete” for certain merit
promotion vacancies. Joseph, 505 F.3d at 1383. In com-
peting for merit promotions, VEOA does not provide
veterans a numerical rating bonus that may have been
available in competitive examinations. Id. VEOA also
says “nothing about the basis upon which the agency
could make its selection.” Id.
In support of his position, Mr. Price cites Gingery v.
Department of Veterans Affairs, 114 M.S.P.R. 175 (2010).
The issue in Gingery was that the agency failed to include
6 PRICE v. HUD
the veteran’s name on the merit promotion list of quali-
fied candidates, which “contained only the name of an
internal candidate . . . .” 114 M.S.P.R. 175, ¶ 2. The
veteran in Gingery was thus denied “a bona fide oppor-
tunity to compete” under VEOA. Id. at ¶ 11. In contrast,
Mr. Price acknowledges that his name was included on
the merit promotion list of qualified candidates. Pet’r’s
Br. 10 (“The Appellant was the only veteran listed on the
Merit Certificate.”). Mr. Price was therefore afforded a
bona fide opportunity to compete for the merit promotion
announcement, and that was the veterans’ preference he
was due under VEOA. Under VEOA, Mr. Price has not
persuasively shown why HUD’s failure to wait for the
issuance of a list of qualified candidates from the parallel
competitive announcement was illegal in this case.
For the General Engineer vacancy, Mr. Price further
disputes the Board’s factual findings of his qualifications
compared to those of the selected candidate. The Board’s
findings were supported by substantial evidence. The
evidence showed that Mr. Price did not have a bachelor’s
degree and that the selected candidate had a bachelor’s
degree in electrical engineering and a master’s degree in
manufacturing. Compare J.A. 185 to J.A. 178. The fact
that both Mr. Price and the selected candidate both
received a rating of 100.00 on the merit promotion list of
qualified candidates did not mean there were no further
qualifications that would distinguish one candidate from
another. Mr. Price also argues that the administrative
judge erred in denying Mr. Price’s discovery motions and
in admitting the testimony of agency witnesses because
they were given “after the fact.” We have no basis to
reverse the Board or the administrative judge on Mr.
Price’s discovery grievances because Mr. Price has not
shown what discovery he was denied and how the re-
quested evidence was relevant. Likewise, Mr. Price has
not shown why the challenged “after the fact” testimonies
were wrongly admitted.
PRICE v. HUD 7
The scope of our review of the Board’s decision is lim-
ited by statute. 5 U.S.C. § 7703(c). Within this limited
scope of review, we discern no reversible error. 1
AFFIRMED
COSTS
Each party shall bear their own costs.
1 On appeal, Mr. Price filed an “Objection to Re-
spondent’s Untimely Filing,” which was treated as a
motion to strike HUD’s corrected informal brief, and a
motion for sanctions for filing and service of HUD’s cor-
rected informal brief. ECF Nos. 17, 23. We do not find,
however, that HUD’s actions warrant sanctions. We
therefore deny Mr. Price’s motions to strike and for sanc-
tions. On April 27, 2015, Mr. Price moved to file a sup-
plemental brief. ECF No. 25. This supplemental brief
was not motivated by any late disclosure of evidence or
legal theory by HUD. Rather, Mr. Price sought to assert
additional arguments under the category rating system in
5 U.S.C. § 3319 based on five HUD vacancies that were
publicly advertised on the USAJobs website. Because Mr.
Price could have included those arguments under 5 U.S.C.
§ 3319 in his original appeal brief, we deny his motion file
a supplemental brief. Even if we were to consider Mr.
Price’s supplemental brief, however, it would not change
the fact that the General Engineer position was filled
through the merit promotion announcement under which
he was considered. Mr. Price’s supplemental brief also
would not show that VEOA authorizes any veterans’
rating bonus in his application through a merit promotion
announcement. Therefore, the arguments in Mr. Price’s
supplemental brief would not affect our affirmance of the
Board’s decision.