Jones v. Department of Health & Human Services , 542 F. App'x 912 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL JONES, III,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent.
______________________
2013-3069
______________________
Petition for review of the Merit Systems Protection
Board in No. DE3330100168-X-1.
______________________
Decided: September 16, 2013
______________________
JOHN PAUL JONES, III, of Albuquerque, New Mexico,
pro se.
DANIEL G. KIM, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director. Of counsel on the brief
2 JONES, III v. HHS
was ROBERT E. NERTHLING, II, Assistant Regional Coun-
sel, Office of General Counsel, Department of Health &
Human Services, of Atlanta, Georgia.
______________________
Before RADER, Chief Judge, LINN, and REYNA, Circuit
Judges.
PER CURIAM.
John Paul Jones, III (“Jones”) appeals a decision of
the Merit Systems Protection Board (“Board”) dismissing
Jones’s petition for enforcement after concluding that the
Department of Health and Human Services (“Depart-
ment”) complied with an administrative judge’s (“AJ”)
earlier decision. Jones v. Dep’t of Health & Human
Servs., No. DE-3330-10-0168-X-1, 2012 MSPB LEXIS
7264 (MSPB Dec. 10, 2012) (Final Order) (“Final Order”);
Jones v. Dep’t of Health & Human Servs., No. DE-3330-
10-0168-C-2, 2010 MSPB LEXIS 7534 (MSPB Dec. 21,
2010) (Recommendation) (“Recommendation”); Jones v.
Dep’t of Health & Human Servs., No. DE-3330-10-0168-I-
1, 2010 MSPB LEXIS 1513 (MSPB Apr. 30, 2010) (Initial
Decision) (“Initial Decision”). Because Jones fails to show
any error on the part of the Board, this court affirms the
Board’s decision.
BACKGROUND
“It is undisputed that [Jones] is a preference eligible
veteran.” Initial Decision, 2010 MSPB LEXIS 1513, at *1.
Jones applied for five positions with the Department and
was highly ranked by the Department’s automated rating
system, but Department human resources personnel
found that he was not qualified for the positions and
Jones was not further considered.
JONES, III v. HHS 3
Jones appealed to the Board seeking corrective action
under the Veterans Employment Opportunities Act of
1998, Pub. L. No. 105-339, 112 Stat. 3182 (“VEOA”). The
AJ concluded for four of the positions (“Health Communi-
cations Specialist positions”) “that the [Department]’s
failure to consider experience relevant and related to
qualifying for the position, when such information was
before it, did violate regulations relating to veterans’
preference, and thereby the VEOA.” Initial Decision,
2010 MSPB LEXIS 1513, at *20. The AJ found that the
Department did not violate the VEOA with respect to the
other position because Jones was not minimally qualified.
The AJ ordered the Department to “reconstruct the selec-
tion processes” for the four Health Communications
Specialist positions and “specifically consider [Jones]’s
public health communications related experience.” Id., at
*21. The Initial Decision ultimately became final.
Jones subsequently filed a petition for enforcement
asserting that the Department did not comply with the
Initial Decision. The AJ recommended granting the
petition and concluded that the Department “has not met
its burden to clearly demonstrate its compliance with the
reconstruction order,” Recommendation, 2010 MSPB
LEXIS 7534, at *15. The AJ stated that the Department
did not provide declarations or affidavits from human
resources personnel or “the documents its human re-
sources personnel relied on in reaching their determina-
tion that, even in light of what is facially public health
related experience, [Jones] was not qualified for these
positions.” Id., at *12. The AJ stated that the Depart-
ment “should submit detailed documentation along with
declarations or affidavits from the human resources
personnel involved in review of [Jones]’s qualifications
which support the determinations on [Jones]’s qualifica-
tions and explain, with particularity, why [Jones] was
unqualified.” Id., at *19.
4 JONES, III v. HHS
After the Recommendation, the Department “submit-
ted a reconstruction package for each position and includ-
ed the reconstruction certificates of eligibles, declarations
by the assigned human resources specialists, evaluations
by subject matter experts, [Jones]’s application packages,
applicant listing reports, [Office of Personnel Manage-
ment] qualification standards, vacancy announcements,
and position descriptions.” Final Order, 2012 MSPB
LEXIS 7264, at *6. The Board reviewed the reconstruc-
tion packages and Jones’s objections, and found that the
Department sufficiently explained and supported its
determinations that Jones was not minimally qualified for
the Health Communications Specialist positions. Thus,
the Board concluded that the Department “has proven its
compliance with the initial decision.” Id., at *14, *17, *20,
*23. The Board considered moot the issues of Jones’s
standing to object to the selection of another candidate,
Jones’s standing to object to the Department’s failure to
select a candidate, and Jones’s allegation that the De-
partment’s failure to select a candidate was a prohibited
personnel practice because the Department documented
that Jones was not qualified. The Board noted that the
Department did not supply the full text of Jones’s applica-
tion responses, but noted that Jones provided portions he
considered relevant and the responses were similar to
Jones’s resume. The Board also rejected Jones’s collateral
estoppel argument because the Initial Decision did not
find him qualified.
This court has jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The Department acknowledges that “[t]here is no dis-
pute that Mr. Jones is a veteran, nor is there any dispute
that, as the administrative judge concluded, the [Depart-
ment initially] violated Mr. Jones’s VEOA rights.”
JONES, III v. HHS 5
Resp’t’s Informal Br. and App. 19. The only issue present-
ly before this court is whether the Board properly con-
cluded that the Department complied with the Initial
Decision.
Jones relies on statements from a hearing, argues
that the AJ determined that he met the requirements of
the Health Communications Specialist positions when the
AJ found a VEOA violation, argues that the Initial Deci-
sion became final and did not allow the Department to
argue that Jones was ineligible, and relies on the doctrine
of collateral estoppel. Jones argues that there have been
no consequences for the Department’s violation of his
rights.
Jones also argues that the Board’s present decision is
inconsistent with the Board’s standards from Walker v.
Department of the Army, 104 M.S.P.R. 96 (MSPB 2006),
and Russell v. Department of Health and Human Services,
117 M.S.P.R. 341 (MSPB 2012). Jones argues that the
Department needed to comply with the provisions violated
and find Jones eligible for the position. Jones notes that
remedial statutes should be broadly construed, particular-
ly when they address veterans’ benefits, and argues that
the Board and the Department failed to consider his
experience.
Jones further argues that the Department did not
provide Jones’s complete application to the Board, and so
the Board and the Department’s personnel could not have
properly evaluated Jones’s relevant experience. Jones
also argues that the missing portions of the application
are not similar to the information in his resume. Jones
argues that the Board accepted the statements of the
subject matter experts, that there is no evidence that the
subject matter experts understood that they were to
consider his entire application, and that the Board did not
address Jones’s rebuttals. Jones argues that the Depart-
6 JONES, III v. HHS
ment had an invalid or illegal reason not to select him
and engaged in willful misconduct. Jones argues that the
Board wrongly indicated that no one was selected for one
of the positions and that other individuals were improper-
ly selected for positions, including asserting that prohibit-
ed personnel practices were used.
Jones notes the lengthy time his case was pending be-
fore the Board, the numerous positions with the Depart-
ment for which he has applied, and the low percentage of
veterans employed by the Department. Jones argues that
in other cases, the Department argues that Jones is not a
veteran. Jones requests that this court confirm that he is
a veteran, confirm that his VEOA rights were violated,
confirm that he is eligible for the Heath Communications
Specialist positions, appoint him to that position, perform
its own reconstruction, award back pay and damages
including liquidated damages, and refer the evidence of
prohibited personnel practices to the Office of Special
Counsel.
The Department argues that the Board properly re-
jected Jones’s collateral estoppel argument. The Depart-
ment argues that in the Initial Decision the AJ did not
determine that Jones was minimally qualified for the
positions, that the AJ only concluded that the Department
failed to consider evidence, and that the AJ ordered the
Department to reconstruct the selection processes. The
Department notes that the reconstructions reanalyzed
Jones’s qualifications with the possibility of reaching
different conclusions and that the reconstructions were
not used to argue the same point. The Department ar-
gues that Jones was not entitled to the positions based on
the VEOA violation, but was entitled only to a lawful
selection process.
The Department argues that there is nothing incon-
sistent between prior Board decisions and the Board’s
JONES, III v. HHS 7
present decision. The Department argues that Jones fails
to sufficiently indicate how the VEOA should have been
broadly construed and that the VEOA does not allow
veterans who are not qualified to be considered.
The Department further argues that the Board ad-
dressed the Department’s failure to include the entirety of
Jones’s application responses, that the Board reviewed
the additional portions provided by Jones, and that Jones
merely disagrees with the Board’s finding that the infor-
mation was similar to that in Jones’s resume. The De-
partment also argues that it reviewed the entire
applications, as indicated by the significant experience it
found Jones possessed. The Department argues that
Jones lacks sufficient evidence of wrongdoing to overcome
the presumption that government officials act in good
faith. The Department argues the propriety of its candi-
date selections and its descriptions of them, and argues
that the qualifications of other candidates are unrelated
to whether Jones is not qualified.
The Department argues that Jones cited no legal er-
ror that resulted in the lengthy time his case was before
the Board. The Department argues that Jones’s status as
a veteran is undisputed in the present case. The Depart-
ment requests that this court affirm the Board’s decision
and argues that Jones is not entitled to the relief he seeks
because the Department documented that Jones was not
minimally qualified.
This court must “set aside any agency action, findings,
or conclusions found to be—(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) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c). Substan-
tial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a
8 JONES, III v. HHS
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938).
This court reviews judgments, not the language of
opinions and certainly not the language used during
hearings. See Herrera v. United States, 849 F.2d 1416,
1418 (Fed. Cir. 1988) (“[W]e review judgments, not words
in opinions . . . .”). The Initial Decision determined that
the Department failed to consider Jones’s relevant experi-
ence and ordered the Department to reconstruct the
selection processes. The Board correctly determined that
the Initial Decision did not find Jones qualified. The
remedy for the VEOA violation was that the Department
reconstruct the selection processes with the possibility of
reaching a different conclusion, and not that Jones be
found qualified for position. See Kirkendall v. Dep’t of the
Army, 573 F.3d 1318, 1325 (Fed. Cir. 2009) (“We hold only
that the agency violated Mr. Kirkendall’s right to have his
experience, as related in his military documents, credited
as part of his application. We do not opine on whether, if
Mr. Kirkendall’s name should have been on the final
competing list, he should have been awarded the job.”).
The Board’s present decision is not in conflict with
Walker or Russell, and Jones’s argument that the cases
are inconsistent fails. Walker indicates that
“[r]econstruction of the selection process requires the
agency to comply with the provisions it violated.” 104
M.S.P.R. at 106. This is consistent with the present
reconstruction because the Department violated the
VEOA by failing to consider Jones’s experience and the
AJ required the Department to consider that experience.
The Department did not need to find Jones eligible to
comply. Walker also indicates that the “VEOA provides
that the Board shall award an amount equal to back-pay
as liquidated damages if it determines that the violation
was willful.” Id. But a party “cannot be entitled to liqui-
dated damages for a willful violation unless, following the
JONES, III v. HHS 9
reconstruction process, the Agency determines that [the
party] would have been hired had the Agency afforded
him veterans’ preference rights.” Weed v. Soc. Sec. Ad-
min., 571 F.3d 1359, 1362 (Fed. Cir. 2009). In the present
case, Jones would not have been selected, and so liquidat-
ed damages are not available.
In Russell, the Board concluded that because the
agency “violated the appellant’s right to a 10-point prefer-
ence in competing for the vacancy at issue, the agency
must reconstruct the selection process after adding 5
more points to the appellant’s score;” and the Board
concluded that “[t]he agency will have to go through the
pass-over procedures . . . before selecting a lower-ranked
non-preference-eligible applicant through the reconstruct-
ed process.” 117 M.S.P.R. at 345. The particular reme-
dies in Russell are not applicable to the present case.
There is no indication that Jones’s rankings did not
include his veteran’s preference. “[T]he VEOA does not
enable veterans to be considered for positions for which
they are not qualified.” Lazaro v. Dep’t of Veterans Af-
fairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012). The Depart-
ment found that Jones was not qualified, and additional
preference points will not change that fact.
While the Department did not provide Jones’s com-
plete application to the Board, the Board acknowledged
this and noted that Jones provided the portions he con-
sidered relevant. The Board also indicates, both expressly
and through its analysis, that it evaluated the Depart-
ment’s and Jones’s submissions and did not simply adopt
the statements provided by the Department. There is no
indication that the Board could not or did not evaluate the
necessary evidence. Similarly, neither the statements of
the subject matter experts identified by Jones nor the
Department’s failure to provide Jones’s entire application
to the Board indicates that the Department failed to
properly consider Jones’s application. The Board notes
10 JONES, III v. HHS
that even the subject matter experts recognized Jones’s
experience, although they found that it was not the re-
quired experience for the positions, which indicates that
his applications were adequately evaluated. Jones thus
fails to demonstrate that the Board’s conclusion that the
Department complied with the Initial Decision was not
supported by substantial evidence. Similarly, Jones’s
disagreement with the Board’s finding that the infor-
mation not provided by the Department was similar to
that in his resume does not indicate that the Board’s
determination was unsupported by substantial evidence.
“[T]here is a presumption that public officers perform
their duties correctly, fairly, in good faith, and in accord-
ance with law and governing regulations and the burden
is on the plaintiff to prove otherwise.” Haley v. Dep’t of
the Treasury, 977 F.2d 553, 558 (Fed. Cir. 1992) (internal
quotation marks omitted). “[A] challenger seeking to
prove that a government official acted in bad faith in the
discharge of his or her duties must show a specific intent
to injure the plaintiff by clear and convincing evidence.”
Rd. & Highway Builders, LLC v. United States, 702 F.3d
1365, 1369 (Fed. Cir. 2012) (internal quotation marks
omitted). We see no error in the Board’s determination
that there is insufficient evidence to overcome this pre-
sumption to show that the Department’s personnel en-
gaged in wrongful conduct.
Because the selection of other candidates has no bear-
ing on Jones’s qualifications and the outcome of the case
is the same for Jones whether or not the Department
erred in selecting other candidates or whether other
candidates were in fact selected, this court need not reach
these arguments. The long pendency of Jones’s case
before the Board, the low percentage of veterans in the
Department, and Jones’s multiple applications for posi-
tions do not indicate any legal or factual error in how the
Board handled the case before it. Jones’s status as a
JONES, III v. HHS 11
veteran is undisputed in the present case, and so Jones’s
argument that the Department contests his status as a
veteran in other cases is not considered. We have careful-
ly considered Jones’s other arguments and determine that
they lack merit.
There is no indication that the Board abused its dis-
cretion, did not act in accordance with law, did not follow
the required procedures, or that the Board’s determina-
tion was unsupported by substantial evidence.
CONCLUSION
For the foregoing reasons, this court affirms the
Board’s decision.
AFFIRMED
COSTS
Each party shall bear its own costs.