Shipp v. Department of Health & Human Services , 498 F. App'x 975 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID M. SHIPP,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent.
__________________________
2012-3141
__________________________
Petition for review of the Merit Systems Protection
Board in SF300A110321-I-1.
___________________________
Decided: December 13, 2012
___________________________
DAVID M. SHIPP, of Kent, Washington, pro se.
ELLEN M. LYNCH, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, REGINALD T.
BLADES, JR., Assistant Director.
DAVID SHIPP v. HHS 2
__________________________
Before LOURIE, BRYSON, and WALLACH, Circuit Judges.
PER CURIAM.
DECISION
David M. Shipp seeks review of a decision of the Merit
Systems Protection Board denying his appeal of decisions
by the Department of Health and Human Services
(“HHS”) not to select him to fill any of five vacancies for
which he applied. We affirm.
BACKGROUND
Mr. Shipp was employed as a GS-12 chemist with
HHS until November 24, 2006, when he was removed for
unacceptable performance. Mr. Shipp appealed his
removal, but his appeal was dismissed when the parties
entered into a settlement agreement terminating the
dispute. Mr. Shipp later expressed dissatisfaction with
the terms of the settlement and petitioned the full Board
for review of the initial decision that dismissed as settled
his appeal from the agency’s removal action. On Novem-
ber 21, 2007, the full Board dismissed Mr. Shipp’s petition
for review as untimely but forwarded his allegations of
agency noncompliance with the settlement agreement to
one of the Board’s regional offices to be docketed as a
petition for enforcement of the settlement agreement.
The regional office denied the petition for enforcement,
and on July 3, 2008, the full Board denied Mr. Shipp’s
petition for review of that decision. Although the Board’s
November 21, 2007, order advised Mr. Shipp that if he
wished to obtain review of that decision he needed to file a
petition with this court within 60 days of receipt of the
order, he did not file an appeal with this court during that
3 DAVID SHIPP v. HHS
60-day period or within 60 days of the Board’s July 3,
2008, order.
In his informal brief, Mr. Shipp contends that he did
not file a petition for review with this court because he
had alleged that racial discrimination had played a role in
his separation and because he believed that the fact that
his claim was based in part on discrimination prohibited
him from prosecuting an appeal to this court. Instead,
Mr. Shipp filed a petition with the Equal Employment
Opportunity Commission (“EEOC”) seeking review of the
Board’s final order. On August 29, 2008, however, the
EEOC ruled that it lacked jurisdiction over the Board’s
enforcement decisions and therefore dismissed the peti-
tion.
The EEOC informed Mr. Shipp in writing that he had
30 days to file a civil complaint based on his allegations in
federal district court. Following those instructions, as
well as the Second Circuit’s decision in Downey v.
Runyon, 160 F.3d 139 (2d Cir. 1998), which held that a
district court could exercise jurisdiction to review a non-
merits decision of the Board, Mr. Shipp brought suit in
the United States District Court for the Western District
of Washington, challenging both the settlement agree-
ment and his removal from federal service. The district
court dismissed the complaint on March 2, 2009, and the
Ninth Circuit affirmed the dismissal on the grounds that
only this court has jurisdiction to review the Board’s
dismissal of an untimely petition. Shipp v. Sebelius, 369
Fed. Appx. 861 (9th Cir. 2010). The Supreme Court
denied Mr. Shipp’s petition for a writ of certiorari on
November 1, 2010. At no point did Mr. Shipp appeal the
Board’s decision to this court.
DAVID SHIPP v. HHS 4
At the time of the district court and Ninth Circuit de-
cisions, a majority of the circuits, including this court, had
held that a Board decision not reaching the merits of an
underlying discrimination claim—such as a Board deci-
sion holding that an appeal was untimely or outside the
Board’s jurisdiction—belonged in this court rather than in
a federal district court. See Lang v. Merit Sys. Prot. Bd.,
219 F.3d 1345, 1347 n.2 (Fed. Cir. 2000); Austin v. Merit
Sys. Prot. Bd., 136 F.3d 782, 784 (Fed. Cir. 1998). The
Supreme Court, however, has recently held that such
cases should be brought in the district courts, not in this
court. Kloeckner v. Solis, No. 11-184 (Dec. 10, 2012).
Meanwhile, between October and December of 2010,
Mr. Shipp applied for five employment vacancies within
HHS, including two openings for a chemist and three for
an interdisciplinary scientist. When he was not selected
for any of those positions, Mr. Shipp appealed to the
Board, alleging that HHS had employed a “hidden” quali-
fication requirement, namely that an applicant must have
a Ph.D., in violation of 5 C.F.R. § 300.103. He also alleged
racial discrimination and retaliation for filing an equal
employment opportunity complaint. The appeal initially
included a request to reopen his 2007 case, but Mr. Shipp
withdrew that request after the Chief Administrative Law
Judge informed him that a request to reopen had to be
filed separately.
As a preliminary matter, the Chief Administrative
Law Judge found Mr. Shipp’s appeal untimely as to three
of the vacancies, but found good cause to excuse the
untimely filing. Mr. Shipp sought discovery regarding the
performance of other candidates for those positions, as
well as responses to interrogatories posed to several of
HHS’s witnesses. Those requests followed significant
discovery that had already been granted to Mr. Shipp. In
5 DAVID SHIPP v. HHS
particular, HHS had disclosed a list of certified candi-
dates along with their educational backgrounds and job
experience. The Chief Administrative Law Judge denied
the additional discovery requests.
On the merits, the Chief Administrative Law Judge
denied Mr. Shipp’s appeal with regard to each vacancy.
As to one opening, Mr. Shipp had failed to submit a
required form. Two other vacancies remained unfilled,
and the Chief Administrative Law Judge concluded that
HHS did not require applicants to have a Ph.D. to be
considered for the final two positions. Mr. Shipp then
petitioned the full Board for review, alleging that the
Chief Administrative Law Judge had failed to consider his
allegations of racial discrimination and retaliation. The
Board denied his petition on March 30, 2012, noting that
its jurisdiction under 5 C.F.R. § 300.104(a) extended only
to improper employment practices applied to an applicant
by the Office of Personnel Management (“OPM”) affecting
the recruitment, measurement, ranking, and selection of
individuals for employment, not to isolated incidents of
alleged discrimination or retaliation. Mr. Shipp now
timely appeals to this court.
DISCUSSION
1. Mr. Shipp devotes much of his argument to disput-
ing the Board’s 2007 decisions, rendered more than five
years ago, regarding his separation and settlement
agreement. This court lacks jurisdiction to consider those
issues because Mr. Shipp “did not file a petition for review
with this court within 60 days of the date he first received
notice of the final order of the Board.” Oja v. Dep't of the
Army, 405 F.3d 1349, 1350 (Fed. Cir. 2005); see 5 U.S.C.
§ 7703(b)(1).
DAVID SHIPP v. HHS 6
Mr. Shipp contends that he did not realize the Board’s
2007 decision dismissing his appeal as settled was final
because it forwarded his complaints to be docketed as a
petition for enforcement to the regional office, which in
turn considered and acted on the petition. He further
argues that, because his objections to his separation and
the resulting settlement agreement involved allegations
of racial discrimination, he reasonably believed it was
proper to pursue his complaint through the EEOC and
then the district court.1 He points to Rule 15(c) of this
court’s Rules of Practice, which deters petitioners from
filing appeals containing discrimination claims to this
court. He argues that HHS validated his belief by failing
to promptly challenge the EEOC’s jurisdiction over his
complaint. By the time the EEOC dismissed Mr. Shipp’s
complaint, the 60-day period for him to appeal to this
court had almost run out. He therefore requests that this
court treat the deadline set by section 7703(b)(1) as equi-
tably tolled.
However, “the time period prescribed by section
7703(b)(1) cannot be tolled.” Oja, 405 F.3d at 1357. That
“period for appeal is statutory, mandatory, [and] jurisdic-
tional.” Monzo v. Dep't of Transp., 735 F.2d 1335, 1336
(Fed. Cir. 1984). Moreover, even if this court could toll the
deadline, and even if we accepted Mr. Shipp’s explanation
as true, he has not provided good cause for his delay. The
Board explicitly notified him in writing that, if he desired
judicial review of its 2007 decision, he was required to
petition this court “no later than 60 calendar days after”
the Board’s decision became final. In addition, even after
the district court and the Ninth Circuit dismissed his
1 Indeed, the Supreme Court’s decision in Kloeckner
v. Solis strengthens Mr. Shipp’s argument that his belief
was reasonable even at the time.
7 DAVID SHIPP v. HHS
case, Mr. Shipp still did not appeal the Board’s original
2007 decision to this court. Instead, he applied for five
new positions and appealed the resulting adverse deci-
sions, only then adding to that appeal the claims in which
he sought to challenge his original separation and settle-
ment agreement. Because the time period to appeal the
Board’s 2007 decision has long since expired, the court
lacks jurisdiction to consider Mr. Shipp’s objections.
Finally, the Supreme Court’s recent decision in
Kloeckner v. Solis makes clear that even if Mr. Shipp’s
effort to appeal to this court from the Board’s decision
regarding his removal and the ensuing settlement agree-
ment were not time-barred, this court would still lack
jurisdiction to hear that appeal because it raises a dis-
crimination claim. For all those reasons, Mr. Shipp’s
2007 appeal is not properly before this court.
2. With respect to his challenge to his nonselection
for any of the five employment positions with HHS, Mr.
Shipp asserts two errors. First, he argues that the Chief
Administrative Law Judge improperly denied his discov-
ery requests. Second, he maintains that the Board erred
in finding that it lacked jurisdiction over his allegations of
racial discrimination and retaliation.
The Board's rulings on discovery issues are reviewed
for abuse of discretion. Kirkendall v. Dep't of the Army,
573 F.3d 1318, 1321 (Fed. Cir. 2009). Mr. Shipp cannot
prevail on his discovery claim “unless [the] abuse of
discretion is clear and is harmful.” Curtin v. Office of
Pers. Mgmt., 846 F.2d 1373, 1378 (Fed.Cir.1988). The
Board did not abuse its discretion in denying Mr. Shipp’s
discovery requests. The requests sought information
regarding the relative merits of the other candidates who
applied to fill the five vacancies. HHS had already pro-
DAVID SHIPP v. HHS 8
vided Mr. Shipp with a list of the candidates who were
certified as eligible for the positions, along with each
candidate’s educational background and prior job experi-
ence, but Mr. Shipp also requested the candidates’ re-
sponses to HHS’s online questionnaires and interview
questions. The Chief Administrative Law Judge did not
abuse her discretion in concluding that those additional
requests were not designed to prove the alleged Ph.D.
requirement at issue, but rather to determine whether
the other applicants were more qualified than Mr. Shipp.
Because the Board’s jurisdiction is limited to considering
employment practices in general, not HHS’s conduct in
Mr. Shipp’s specific case, the question of whether certain
applicants were more qualified overall was irrelevant.
The Chief Administrative Law Judge acted well within
her discretion in ruling that those requests were not
reasonably calculated to discover admissible evidence
regarding the alleged Ph.D. requirement. See 5 C.F.R.
§ 1201.72. Mr. Shipp also sought to pose interrogatories
to several of HHS’s witnesses, but he did not identify any
relevant topic that those interrogatories would explore or
any admissible evidence they might uncover. The Chief
Administrative Law Judge therefore properly denied
those requests.
Second, Mr. Shipp argues that the Board had jurisdic-
tion over his racial discrimination and retaliation claims
and should have ruled on them. As a general matter,
however, an agency's failure to select an applicant for a
vacant position is not appealable to the Board. Prewitt v.
Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998).
Mr. Shipp claims an exception to that general principle
because he alleges he was the victim of racial discrimina-
tion and retaliation for lodging an equal employment
opportunity complaint against HHS. The Board, how-
ever, correctly concluded that the alleged discrimination
9 DAVID SHIPP v. HHS
and retaliation, even if accepted as true, would amount
only to an isolated incident affecting Mr. Shipp individu-
ally. “[A]n individual agency action or decision that is not
made pursuant to or as part of a rule or practice of some
kind does not qualify as an ‘employment practice.’” Id. at
887; see 5 C.F.R. § 300.104. Mr. Shipp has not identified
a policy of discrimination or retaliation promulgated by
OPM or practiced by HHS, so the Board correctly held
that it lacked jurisdiction over his retaliation and dis-
crimination claims.
To the extent Mr. Shipp challenges the Chief Admin-
istrative Law Judge’s decision on the merits regarding
each of the five vacancies, those rulings were supported
by substantial evidence. Mr. Shipp’s failure to submit a
required form, not any hidden employment practice,
disqualified him from one vacancy. Nor did he identify a
hidden employment qualification regarding the two
vacancies that were not even filled. As to the final two
positions, the Chief Administrative Law Judge credited
the testimony of an OPM human resources specialist who
testified that there was no requirement that an applicant
have a Ph.D., and that OPM used the position description,
normal qualification standards, and other openly consid-
ered evaluative tools to fill the positions at issue. Finding
no error on any issue over which we have jurisdiction, we
sustain the Board’s decision.
No costs.
AFFIRMED