Harden-Williams v. Agency for International Development , 469 F. App'x 897 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BARBARA A. HARDEN-WILLIAMS,
Petitioner,
v.
AGENCY FOR INTERNATIONAL DEVELOPMENT,
Respondent.
__________________________
2012-3007
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC3443110006-I-1.
__________________________
Decided: March 13, 2012
__________________________
BARBARA A. HARDEN-WILLIAMS, of Suitland, Mary-
land, pro se.
ANUJ VOHRA, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and PATRICIA M.
MCCARTHY, Assistant Director.
__________________________
HARDEN-WILLIAMS v. AID 2
Before LINN, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
Barbara A. Harden-Williams appeals the August 19,
2011 decision of the Merit Systems Protection Board
(“Board”), holding that the United States Agency for
International Development (“USAID”, or “agency”) did not
violate her rights relating to veteran’s preferences when it
found that she was not qualified for a GS-15 Supervisory
Public Health Specialist position (“position”). Harden-
Williams v. U.S. Agency for Int’l Dev., No. DC3443110006-
I-1 (M.S.P.B. Aug. 19, 2011). Because substantial evi-
dence supports the Board’s decision, we affirm.
BACKGROUND
Ms. Harden-Williams applied for the position after
the USAID advertised it on October 7, 2009. The USAID
later revised the advertisement and added knowledge of
the principles, concepts, and techniques of international
nutrition and food security as a “screen out” requirement
of the position. The agency used a Subject Matter Expert
(“SME”) to review the applications and compile a list of
qualified candidates. The SME did not include Ms.
Harden-Williams on that list. On March 11, 2010, the
agency informed Ms. Harden-Williams that she would not
receive the job.
Ms. Harden-Williams took a number of steps to chal-
lenge the agency’s decision. In relevant part, she filed a
complaint with the Department of Labor (“DOL”), claim-
ing (1) that her deceased husband’s military service (from
March 1, 1966 until his death on April 5, 1967) entitled
her to a statutory preference in the hiring process, (2)
that the government discriminated against her based on
her deceased husband’s military service, and (3) that the
agency’s determination that she did not meet the position
3 HARDEN-WILLIAMS v. AID
requirements was incorrect. The DOL rejected her argu-
ments.
Ms. Harden-Williams appealed to the Board. She ar-
gued that the agency’s handling of her application vio-
lated the Uniformed Service Employment and
Reemployment Rights Act of 1994 (“USERRA”) and the
Veterans Employment Opportunities Act (“VEOA”). And,
as the administrative judge understood it, Ms. Harden-
Williams also claimed that the agency discriminated
against her based on improper grounds such as age, race,
and gender. She asked the Board to require the agency to
“provide [her] with a position equal in stature to the one
[she] was denied.” Resp’t App. 33.
The administrative judge dismissed Ms. Harden-
Williams’s claims for lack of jurisdiction. In particular,
the administrative judge determined that pursuant to 38
U.S.C. § 4311(a), USSERRA only applied to military
service men and applicants, not their spouses. With
respect to the VEOA claim, the administrative judge
determined that Ms. Harden-Williams did not make a
non-frivolous assertion that she was preference-eligible
under 5 U.S.C. § 2108. 1 Finally, the administrative judge
determined that because it lacked jurisdiction over the
VEOA and USERRA claims, it also lacked jurisdiction to
consider the discrimination claims.
Ms. Harden-Williams petitioned the Board to review
the administrative judge’s decision. In addition to reiter-
ating her prior arguments, she submitted supplemental
1 After finding that it lacked jurisdiction in its ini-
tial decision, the administrative judge nonetheless ad-
dressed the merits of Ms. Harden-Williams’s claim and
determined that sufficient facts supported the agency’s
decision that she was not qualified for the position.
HARDEN-WILLIAMS v. AID 4
evidence to the Board that purportedly demonstrated that
the SME lacked authentic academic credentials and was
thus unqualified to screen out her job application. The
government moved to exclude the supplemental evidence
on various grounds, arguing that it was procedurally
inappropriate and substantively immaterial.
In the final decision, the Board disagreed in part with
the administrative judge and determined that Ms.
Harden-Williams had indeed made a non-frivolous asser-
tion of preference-eligibility under the VEOA. Nonethe-
less, reasoning that the agency provided sufficient
evidence that she was not qualified for the position, the
Board denied the VEOA claim on the merits. With re-
spect to the newly submitted evidence, the Board found
that the information was not properly in the record be-
cause it could and should have been submitted earlier.
The Board thus did not consider the supplemental evi-
dence; yet, it suggested that the evidence would not
advance Ms. Harden-Williams’s arguments in any event.
Accordingly, the Board denied the petition for review,
rendering the administrative judge’s decision the final
decision of the Board. This appeal followed. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Ms. Harden-Williams makes principally two argu-
ments on appeal. First, she argues that the Board erred
in rejecting her VEOA claim. Second, she argues that the
agency as well as the Board acted in bad faith. 2 We reject
both arguments.
2 It is not clear whether Ms. Harden-Williams con-
tests the Board’s dismissal of her USERRA claim on
appeal. In any event, this court has already held that a
widow of a military serviceman who has not herself
served in a uniformed service is not entitled to the protec-
5 HARDEN-WILLIAMS v. AID
We first address Ms. Harden-Williams’s VEOA claim,
which essentially alleges that the agency improperly
considered her unqualified for the position. 3 In our view,
however, substantial evidence supports the Board’s
decision that Ms. Harden-Williams was not qualified for
the position. The administrative judge heard testimony
from three agency employees, including the SME who
assisted the agency in the hiring process. The adminis-
trative judge noted that the witnesses stated that the
agency “thoroughly and fairly reviewed [Ms. Harden-
Williams’s] application.” Resp’t App. 11. The witnesses
also stated that with the aid of the SME, a human re-
sources staffing specialist ranked and scored applicants
for the position and created a certificate of qualified
eligible candidates. They explained that Ms. Harden-
Williams indeed had some experience in the public health
area, but she was not selected as a qualified candidate
because she lacked international experience, which was a
basic job qualification. The administrative judge (and
thus ultimately the Board) “found the testimonies of these
witnesses reliable and credible, based on their demeanor
and the fact that their testimonies were consistent with
each other and the record evidence.” Id.Ms. Harden-Williams contests these factual findings
and argues that the witnesses were not credible. She also
tions of USERRA. Lourens v. Merit Sys. Prot. Bd., 193
F.3d 1369, 1371 (Fed. Cir. 1999).
3 Ms. Harden-Williams also argues that the admin-
istrative judge erred in initially determining that she
failed to make a non-frivolous assertion that she was not
preference eligible. But as already stated, the Board
ultimately determined that Ms. Harden-Williams indeed
made the requisite showing. Thus, Ms. Harden-
Williams’s argument regarding preference eligibility is
moot.
HARDEN-WILLIAMS v. AID 6
alleges that the agency fabricated evidence in order to
deny her job application. We are not permitted, however,
to second-guess the Board in its fact-findings so long as
they are supported by substantial evidence. Substantial
evidence exists where “a reasonable mind might accept
[the evidence] as adequate to support a conclusion.”
Kimm v. Dep’t of the Treasury, 61 F.3d 888, 891 (Fed. Cir.
1995). Moreover, we must defer to the Board’s credibility
determinations. See Frey v. Dep’t of Labor, 359 F.3d 1355,
1361 (Fed. Cir. 2004) (“The evaluation of witness credibil-
ity is a matter within the discretion of the [administrative
judge] and is ‘virtually unreviewable.’”). Here, the testi-
monies of the agency’s witnesses and the Board’s credibil-
ity determinations amply support the Board’s conclusion.
We thus hold that the Board did not err in denying Ms.
Harden-Williams’s VEOA claim. 4
We also reject Ms. Harden-Williams’s arguments re-
garding bad faith. The record simply does not support
Ms. Harden-Williams’s allegations against the agency and
the Board.
Finally, to the extent that we have not addressed any
of Ms. Harden-Williams’s remaining arguments expressly,
we have considered them and hold that they are not
persuasive. For the reasons stated above, we affirm the
Board’s decision.
4 Ms. Harden-Williams argues that the supplemen-
tal material that she submitted to the Board (after the
decision of the administrative judge issued) establishes
that the SME lacked proper credentials to screen appli-
cants. The Board declined to admit the evidence into the
record, however, and Ms. Harden-Williams does not make
any persuasive arguments as to why the Board erred in
excluding it.
7 HARDEN-WILLIAMS v. AID
COSTS
Each party shall bear its own costs.
AFFIRMED