Asatov v. Department of Labor ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAKHMATULLA ASATOV,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
______________________
2013-3047
______________________
Petition for review of the Merit Systems Protection
Board in Nos. PH3330120390-I-1, PH3330120391-I-1, and
PH3330120392-I-1.
______________________
Decided: October 16, 2013
______________________
RAKHMATULLA ASATOV, of Plainville Connecticut, pro
se.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. On
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, REGINALD T.
2 RAKHMATULLA ASATOV v. LABOR
BLADES, JR., Assistant Director, and KIMBERLY I.
KENNEDY, Trial Attorney.
______________________
Before PROST, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
Rakhmatulla Asatov seeks review of a final decision
of the Merit Systems Protection Board (“Board”) denying
his request for corrective action under the Veterans
Employment Opportunities Act of 1998 (“VEOA”). Asatov
v. Dep’t of Labor, PH-3330-12-0390-I-1 (M.S.P.B. Sep. 27,
2012) (“Board Op.”). For the reasons set forth below, we
affirm.
BACKGROUND
Mr. Asatov, a preference-eligible veteran, applied for
three competitive service positions with the Department
of Labor (“DOL”): DE-12BOS-VETS-66 (vacancy 66)
located in Boston, Massachusetts; DE-12-BOS-VETS-67
(vacancy 67) located in Albany, NY; and DE-12-BOS-
VETS-68 (vacancy 68) located in New York, NY. Con-
sistent with competitive service internal procedures, the
DOL processed applications for these three positions by
using a category rating system. Based on their responses
to nineteen questions, candidates were placed in one of
three categories: Category A (best qualified); Category B
(well qualified); or Category C (qualified).
Mr. Asatov was placed at the top of Category B based
on his score and his status as veteran. Because sufficient
Category A candidates applied for each position, the DOL
prepared certificates of eligible candidates listing only
Category A candidates. For vacancies 67 and 68, the DOL
also prepared Veterans’ Recruitment Appointment (VRA)
certificates, which are normally prepared only in connec-
tion with job openings in the non-competitive service. The
DOL ultimately filled vacancies 67 and 68 with candi-
RAKHMATULLA ASATOV v. LABOR 3
dates listed in the competitive certificates. The DOL did
not fill vacancy 66 because selected candidates declined
the position and the certificate expired.
Mr. Asatov filed three appeals with the Board on
June 2, 2012, asserting that the DOL violated his VEOA
rights when it failed to select him for any of the three
vacancies. Mr. Asatov made two arguments: first, that
the DOL denied him the opportunity to compete for the
positions in violation of 5 U.S.C. § 3304(f)(1), and second,
that the DOL failed to give him credit for service in the
armed forces in violation of 5 U.S.C. § 3311. The Board
held a hearing on September 4, 2012.
The Board rejected Mr. Asatov’s arguments in a writ-
ten opinion dated September 27, 2012. Regarding the
first argument, the Board concluded that § 3304(f)(1) does
not apply to Mr. Asatov’s selection process because that
section of the statute concerns vacancies filled according
to merit promotion procedures, and the DOL announced
and filled the three positions at issue here under OPM’s
delegated examining authority procedures for the compet-
itive service. Regarding the VRA certificates, the Board
found that they were prepared by mistake because the
DOL was not following merit promotion procedures to fill
the positions. The Board also noted that, in any event,
Mr. Asatov was not disabled and had not asserted that he
was otherwise eligible for inclusion in either of the VRA
certificates. The Board next concluded that, even if §
3304(f)(1) did apply, Mr. Asatov was not denied the right
to compete by being placed in the list of Category B appli-
cants because he was not qualified for placement in
Category A.
The Board also rejected Mr. Asatov’s second argu-
ment. The Board reviewed the nineteen questions accom-
panying the vacancy announcements and concluded that
the questions were designed to elicit information regard-
ing experience and education background, both highly
4 RAKHMATULLA ASATOV v. LABOR
pertinent to the rating process. Because Mr. Asatov had
not challenged the relevance of any of the questions or
alleged that his answers were rated incorrectly, the Board
concluded that the DOL properly considered Mr. Asatov’s
experience in determining whether he was qualified for
the positions. Accordingly, the Board denied Mr. Asatov’s
request for corrective action.
Mr. Asatov timely sought review of the Board’s final
decision. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
DISCUSSION
We may reverse the Board’s final decision only if we
determine that it is (1) arbitrary, capricious, and abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law; or (3)
unsupported by substantial evidence. 5 U.S.C. § 5503(c);
see also Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537
(Fed. Cir. 1984).
We agree with the Board that 5 U.S.C. § 3304(f)(1)
does not apply to Mr. Asatov’s situation because the three
positions in question were not merit promotion appoint-
ments. See Board Op. at 5. See also § 3304(f)(1) (“Prefer-
ence eligibles or veterans . . . may not be denied the
opportunity to compete for vacant positions for which the
agency making the announcement will accept applications
from individuals outside its own workforce under merit
promotion procedures”) (emphasis added). We also agree
that substantial evidence supports the Board’s factual
conclusion that Mr. Asatov was afforded an opportunity to
compete and that he received proper credit for his experi-
ence. See id. at 5-7.
The Board’s finding that the three vacancies were an-
nounced and filled following competitive examination
procedures is supported by substantial evidence. After
reviewing the record, the Board determined that the
RAKHMATULLA ASATOV v. LABOR 5
positions were announced according to OPM’s delegated
examining authority procedures for competitive service
appointments. The Board credited testimony by two DOL
human resources employees who testified that the VRA
certificates should not have been prepared because DOL
was not using merit promotion procedures to fill the
vacancies. To the extent that Mr. Asatov challenges the
Board’s credibility determinations, we find no basis in the
record to disturb them. See Pope v. U.S. Postal Serv., 114
F.3d 1144, 1149 (Fed. Cir. 1997) (“As an appellate court,
we are not in position to re-evaluate [the Board’s] credibil-
ity determinations, which are not inherently improbable
or discredited by undisputed fact.”).
Mr. Asatov also argues that the DOL violated his vet-
erans’ preference rights “by failing to refer [his] name to
the selecting official as a VRA candidate on a non-
competitive list of eligibles.” Appellant’s Informal Br. at
2. According to Mr. Asatov, the Board erred in failing to
consider that DOL “referred some VRA eligible applicants
for further consideration but excluded others.” Id. at 1.
But it appears from the record that this argument was
not raised before the Board and we therefore decline to
address it here. See Board Op. at 5 n.5; see also Simmons
v. Dep’t of the Army, 194 F.3d 1331 (Fed. Cir. 1999). In
any event, the Board did not need to determine whether
Mr. Asatov was entitled to be included in the VRA certifi-
cates because it found that the certificates were issued in
error, and that the appointments were filled according to
competitive examination procedures. Therefore, we con-
clude that the Board correctly determined that the DOL
did not violate Mr. Asatov’s VEOA rights by not including
him in the delegated examining certificates of eligibles. 1
1 Mr. Asatov also argues that the Board failed to
consider 5 U.S.C. §§ 3330c(a) and 7701(c)(2). Section
3330c(a) does not apply here because the Board did not
6 RAKHMATULLA ASATOV v. LABOR
CONCLUSION
Because we perceive no legal error in the proceedings
below, and we find substantial evidence to support the
Board’s factual findings, we affirm the final decision of
the Board dismissing Mr. Asatov’s appeals.
AFFIRMED
COSTS
Each party shall bear its own costs.
determine that the agency has violated a right described
in § 3330a. See § 3330c(a). Section 7701(c)(2) is also
inapplicable because Mr. Asatov has not shown harmful
error in the application of DOL’s procedures or a prohibit-
ed personnel practice described in section 2301(b). See §
7701(c)(2).