Jones v. Department of Health & Human Services , 834 F.3d 1361 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL JONES, III,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2016-1792
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-4324-15-0233-I-1.
______________________
Decided: August 22, 2016
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
AARON E. WOODWARD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER; ROBERT L. THOMAS, Office of the General
Counsel, United States Department of Health & Human
Services, Atlanta, GA.
______________________
Before NEWMAN, MOORE, and WALLACH, Circuit Judges.
2 JONES v. HHS
WALLACH, Circuit Judge.
On various dates in 2015, veteran John Paul Jones,
III, filed sixteen appeals with the Merit Systems Protec-
tion Board (“MSPB”), alleging that the U.S. Department
of Health and Human Services (“HHS” or “Government”)
violated the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), Pub. L.
No. 103-353, 108 Stat. 3149 (codified as amended at 38
U.S.C. §§ 4301–4333 (2012)), 1 when it did not select him
for various job vacancies. An administrative judge (“AJ”)
consolidated the appeals and ultimately denied
Mr. Jones’s request for relief in an Initial Decision. See
Jones v. Dep’t of Health & Human Servs., No. DE-4324-
15-0233-I-1 (M.S.P.B. Mar. 25, 2016) (Resp’t’s App’x 25–
38). The AJ’s Initial Decision became the Final Decision
of the MSPB when Mr. Jones did not timely file a petition
for review of that decision before the MSPB. See 5 C.F.R.
§ 1201.114(e) (2016).
Mr. Jones appeals, contending the AJ’s decision con-
tains various legal and factual errors. The Government
alleges that we lack jurisdiction to hear Mr. Jones’s
appeal or, in the alternative, that the AJ’s decision was
correct and should be affirmed. We conclude that we have
jurisdiction over Mr. Jones’s appeal and that the AJ
properly denied his claims. We therefore affirm.
DISCUSSION
I. Subject Matter Jurisdiction
As an initial matter, we must address whether this
court possesses subject matter jurisdiction over
Mr. Jones’s appeal. See Ruhrgas AG v. Marathon Oil Co.,
1 Congress passed USERRA to, inter alia, “prohibit
discrimination against persons because of their service in
the uniformed services.” 38 U.S.C. § 4301(a)(3).
JONES v. HHS 3
526 U.S. 574, 583 (1999) (“[A] federal court [must] satisfy
itself of its jurisdiction over the subject matter before it
considers the merits of a case.” (citation omitted)). The
AJ stated that his Initial Decision would become final on
April 29, 2016, unless Mr. Jones sought further review
before the MSPB by that date. Resp’t’s App’x 38.
Mr. Jones did not seek further review from the MSPB, but
rather filed his petition for review with this court on April
4, 2016, twenty-five days before the AJ’s Initial Decision
became final. See Jones v. Dep’t of Health & Human
Servs., No. 2016-1792, Docket No. 1 at 2 (Fed. Cir. Apr. 5,
2016).
The Government asserts that we “lack[] jurisdiction
[to hear Mr. Jones’s appeal] because[,] at the time
Mr. Jones filed his appeal, the [AJ’s] decision was not yet
final,” such that there was no final MSPB decision from
which Mr. Jones could appeal. Resp’t’s Br. 3. As a result,
the Government argues that “Mr. Jones would need to
refile his appeal in order to properly invoke this [c]ourt’s
review power.” Id. at 4 (citation omitted). We disagree.
We possess jurisdiction over an appeal from a “final
decision” of the MSPB. 28 U.S.C. § 1295(a)(9) (2012). To
obtain review in this court, “a petition to review a . . .
final decision of the [MSPB] shall be filed . . . within
[sixty] days after the [MSPB] issues notice” of its final
decision. 5 U.S.C. § 7703(b)(1)(A) (2012) (emphases
added). We have held that, to invoke the court’s jurisdic-
tion to appeal the MSPB’s final decision, a petitioner must
file a petition for review within the time frame provided
in 5 U.S.C. § 7703(b)(1)(A). See Oja v. Dep’t of the Army,
405 F.3d 1349, 1357 (Fed. Cir. 2005) (The time for filing
an appeal pursuant to 5 U.S.C. § 7703(b)(1) “is ‘statutory,
mandatory, [and] jurisdictional.’” (quoting Monzo v. Dep’t
4 JONES v. HHS
of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984))); 2 see
also Fed. R. App. P. 15(a)(1) (“Review of an agency order
is commenced by filing, within the time prescribed by law,
a petition for review with the clerk of a court of appeals
authorized to review the agency order.” (emphasis add-
ed)). 3
Nevertheless, we also have held that, when a peti-
tioner files a petition for review with this court before an
AJ’s initial decision becomes final, the petitioner’s appeal
ripens once that initial decision becomes the final decision
of the MSPB. See Schmitt v. Merit Sys. Prot. Bd., 315
2 It may be time to ask whether we should recon-
sider Oja and Monzo in light of recent Supreme Court
precedent finding some statutory time limits nonjurisdic-
tional. See, e.g., United States v. Kwai Fun Wong, 135 S.
Ct. 1625, 1630–33 (2015) (“Congress’s separation of a
filing deadline from a jurisdictional grant often indicates
that the deadline is not jurisdictional.”). As previously
stated, we possess jurisdiction to review a final decision of
the MSPB under 28 U.S.C. § 1295(a)(9); however, the
filing deadline is codified under 5 U.S.C. § 7703(b)(1).
Notwithstanding the Supreme Court’s decision in Kwai
Fun Wong, we need not answer that question to resolve
the instant appeal and, in any event, we could not do so as
a panel because Oja and Monzo may be overruled only by
this court en banc. See Deckers Corp. v. United States,
752 F.3d 949, 966 (Fed. Cir. 2014) (explaining that only
an en banc court, intervening Supreme Court precedent,
or Congressional change of an underlying statute may
overrule prior precedential panel decisions).
3 Rules 1–2 and 15–21 govern appeals from the
MSPB. See Fed. R. App. P. 20 (“All provisions of these
rules, except Rules 3–14 and 22–23, apply to the review or
enforcement of an agency order.”); see also Fed. R. App. P.
15(a)(4).
JONES v. HHS 5
F. App’x 278, 280 (Fed. Cir. 2009) (unpublished)
(“Mr. Schmitt prematurely appealed to this court follow-
ing the AJ’s initial decision. After the [MSPB] denied
Mr. Schmitt’s petition for review, the AJ’s [initial] deci-
sion became final and Mr. Schmitt’s prematurely filed
appeal ripened.” (citation omitted)); see also Galloway v.
Dep’t of Agric., No. 2009-3279, 2010 WL 2026055, at *1
(Fed. Cir. 2010) (unpublished) (similar). Contra Pinder v.
U.S. Postal Serv., 267 F. App’x 938, 2008 WL 565449, at
*1 (Fed. Cir. 2008) (unpublished) (“Because Pinder’s
petition for review in this court was filed before the AJ’s
[initial] decision became final, the petition is premature.
Thus, we dismiss.”).
Our conclusion in Schmitt is consistent with our prec-
edent in analogous circumstances. For example, in In re
Graves, we held that an appellant’s prematurely-filed
notice of appeal “ripened into an effective [timely] appeal”
once the underlying original administrative decision
became final. 69 F.3d 1147, 1151 (Fed. Cir. 1995); see id.
(“Our jurisdiction to hear the appeal was, in effect, sus-
pended until” the decision of the Board of Patent Appeals
and Interferences became final. (footnote omitted)); accord
Craker v. Drug Enf’t Admin., 714 F.3d 17, 25 (1st Cir.
2013) (favorably citing Graves in finding that it retained
jurisdiction over a prematurely-filed appeal because, inter
alia, it “suspended and then resumed consideration of a
petition for review” once the decision of the Drug En-
forcement Administration became final). But cf. W. Union
Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir. 1985) (“[A]
challenge to now-final agency action that was filed before
it became final must be dismissed” as “jurisdictional[ly]
bar[red]” (citations omitted)); 4 accord Council Tree
4 Similar to 5 U.S.C. § 7703(b)(1)(A), the provision
at issue in Western Union required a petition for review to
be filed “within [sixty] days after” entry of a final agency
6 JONES v. HHS
Commc’ns, Inc. v. FCC, 503 F.3d 284, 291 (3d Cir. 2007)
(favorably citing Western Union in dismissing a prema-
turely-filed petition appealing a non-final order). The
decision in Graves to treat a prematurely-filed appeal of a
non-final order as effectively stayed until the underlying
agency order becomes final finds support in the Supreme
Court’s observation that “a stay is as much a refusal to
exercise federal jurisdiction as a dismissal,” Moses H.
Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28
(1983), a position that the First Circuit has endorsed, see
Craker, 714 F.3d at 25 (favorably citing Moses for the
same proposition).
The D.C. Circuit’s decision in Western Union is rele-
vant, but it neither binds us nor persuades us to dismiss
Mr. Jones’s appeal. “[D]ecisions of the regional circuits
[relevant to] issues within our exclusive jurisdiction,”
such as our jurisdiction over appeals from the MSPB, “are
not binding on this court,” Superior Fireplace Co. v.
Majestic Prods. Co., 270 F.3d 1358, 1372 (Fed. Cir. 2001)
(citation omitted), but we may nevertheless consider those
decisions for guidance, see Avocent Huntsville Corp. v.
Aten Int’l Co., 552 F.3d 1324, 1337 (Fed. Cir. 2008). In its
decision, the D.C. Circuit did not address the Supreme
Court’s decision in Moses. See generally W. Union, 773
order. 773 F.2d at 376 (discussing 28 U.S.C. § 2344
(1982)). In reaching its conclusion, the D.C. Circuit
rejected the argument that “within [sixty] days” in the
statute “establish[ed] sixty days after entry [of the final
order] as the filing deadline”; instead, it found that “with-
in” “establish[ed] the sixty-day period after entry as the
filing ‘window.’” Id. It reasoned that, “[i]f the intent were
to establish a filing deadline rather than a filing window,
[the statute] would more naturally have been phrased ‘no
later than [sixty] days after . . . entry[,]’ rather than
‘within [sixty] days after . . . entry.’” Id.
JONES v. HHS 7
F.2d 375. Moreover, Western Union does not account for
the recent trend in Supreme Court opinions finding
statutory time limits nonjurisdictional, see, e.g., Kwai Fun
Wong, 135 S. Ct. at 1630–33, and the D.C. Circuit does
not appear to have revisited the principle articulated in
Western Union despite that recent Supreme Court prece-
dent, see, e.g., Blue Ridge Envtl. Def. League v. Nuclear
Regulatory Comm’n, 668 F.3d 747, 756 (D.C. Cir. 2012)
(reaffirming the principle articulated in Western Union
and its progeny). Thus, we find the analysis in Western
Union incomplete.
The facts of Mr. Jones’s appeal are similar to those in
Schmitt, such that we find it appropriate to assert juris-
diction over his appeal. Like the petitioner in Schmitt,
Mr. Jones filed his petition for review with this court
before the AJ’s Initial Decision became the Final Decision
of the MSPB—i.e., he appealed too early. And like the
decision under review in Schmitt, the AJ’s Initial Decision
became the Final Decision under review on appeal. This
is not a case where some claims remained pending before
the MSPB, see Baiamonte v. Potter, 345 F. App’x 561,
562–63 (Fed. Cir. 2009) (unpublished) (dismissing prema-
turely-filed appeal from the United States Postal Service
Board of Contract Appeals when some claims remained
pending below), or where Mr. Jones sought review of the
MSPB’s final decision after the sixty-day time limit in
5 U.S.C. § 7703(b)(1)(A), see Fed. R. App. P. 26(b)(2)
(explaining that the court “may not extend the time to file
. . . a notice of appeal from . . . an order of an administra-
tive . . . board . . . unless specifically authorized by law”).
Our conclusion also finds support in the equitable princi-
ple of fair play inherent to the judiciary. Cf. McDonald v.
Mabee, 243 U.S. 90, 91 (1917) (“[G]reat caution should be
used not to let fiction deny the fair play that can be se-
cured only by a pretty close adhesion to fact.” (Holmes, J.)
(citation omitted)). Therefore, we assert jurisdiction over
the appeal. See Schmitt, 315 F. App’x at 280.
8 JONES v. HHS
II. Standard of Review
We next turn to the merits of Mr. Jones’s appeal. As
stated above, Mr. Jones alleges that the AJ committed
various legal and factual errors. We affirm the MSPB’s
decision unless, inter alia, it is “not in accordance with
law,” 5 U.S.C. § 7703(c)(1), or “unsupported by substantial
evidence,” id. § 7703(c)(3). We review the MSPB’s legal
determinations de novo. Welshans v. U.S. Postal Serv.,
550 F.3d 1100, 1102 (Fed. Cir. 2008). “Substantial evi-
dence is more than a mere scintilla” of evidence, Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), but “less
than the weight of the evidence,” Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966). As the petitioner, Mr.
Jones “bears the burden of establishing error in the
[MSPB’s] decision.” Harris v. Dep’t of Veterans Affairs,
142 F.3d 1463, 1467 (Fed. Cir. 1998) (citation omitted).
III. The AJ Properly Denied Mr. Jones’s USERRA Claims
A. Legal Framework
As stated above, “[t]he USERRA prohibits discrimina-
tion in employment on the basis of military service.”
Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1012 (Fed.
Cir. 2001). “[A]n employee making a USERRA claim of
discrimination . . . bear[s] the initial burden of show-
ing . . . that the employee’s military service was a sub-
stantial or motivating factor in the adverse employment
action.” Id. at 1013 (internal quotation marks and cita-
tion omitted). “[M]ilitary service is a [substantial or]
motivating factor for an adverse employment action if the
employer relied on, took into account, considered, or
conditioned its decision on the employee’s military-related
absence or obligation.” McMillan v. Dep’t of Justice, 812
F.3d 1364, 1372 (Fed. Cir. 2016) (internal quotation
marks and citation omitted).
An employee may prove discriminatory motivation “by
either direct or circumstantial evidence.” Sheehan, 240
JONES v. HHS 9
F.3d at 1014 (citation omitted). Absent direct evidence,
the MSPB may infer discriminatory motivation from,
inter alia,
[(1)] proximity in time between the employee’s
military activity and the adverse employment ac-
tion, [(2)] inconsistencies between the proffered
reason and other actions of the employer, [(3)] an
employer’s expressed hostility towards members
protected by the statute together with knowledge
of the employee’s military activity, and [(4)] dis-
parate treatment of certain employees compared
to other employees with similar work records or
offenses.
Id. (citation omitted). We commonly refer to these four
elements as the “Sheehan factors.” McMillan, 812 F.3d at
1373 (capitalization omitted).
An employee meets the initial evidentiary burden by
demonstrating that “a preponderance of the evidence”
supports the claim. Id. at 1372 (citation omitted). “Pre-
ponderance of the evidence . . . means the greater weight
of evidence, evidence which is more convincing than the
evidence which is offered in opposition to it.” Hale v.
Dep’t of Transp., 772 F.2d 882, 885 (Fed. Cir. 1985).
B. The AJ Properly Concluded that Mr. Jones Failed to
Meet His Initial Evidentiary Burden
The AJ found that neither direct nor circumstantial
evidence supported Mr. Jones’s USERRA claim, such that
Mr. Jones failed to demonstrate by a preponderance of the
evidence that his military service was a motivating factor
in HHS’s decision not to hire him for the subject job
vacancies. Resp’t’s App’x 29–38. The AJ first found that
“there is no direct evidence . . . [Mr. Jones] was not hired
for the positions at issue because of his past military
service,” id. at 29, a conclusion Mr. Jones does not contest
on appeal.
10 JONES v. HHS
Turning to the circumstantial record evidence, the AJ
found that not one of the four Sheehan factors demon-
strated discrimination. See id. at 29–38. As to the first
factor, the AJ observed that forty-five years separated Mr.
Jones’s service and HHS’s non-selection decisions, evinc-
ing a “lack of a nexus between his military service and the
non-selections.” Id. at 30. As to the second factor, the AJ
found that HHS’s proffered reasons for not hiring
Mr. Jones were consistent with its other actions. Id. at
31–37. As to the third factor, the AJ found no hostility
towards uniformed members by HHS, concluding that the
evidence proffered by Mr. Jones was “not circumstantial
evidence supporting a finding that [Mr. Jones’s] military
service was a factor in any of the non-selections at issue.”
Id. at 38. Finally, as to the fourth factor, the AJ found
HHS did not disparately treat veterans and non-veterans,
citing several examples of HHS employees either finding
veteran applicants qualified where they did not find Mr.
Jones qualified, or hiring other veterans. Id. at 30–31 &
n.2.
Mr. Jones alleges that the AJ erred “by omitting key
evidence and testimony from [its] decision.” Pet’r’s Br. 2.
In particular, Mr. Jones identifies nine errors that the AJ
allegedly committed, some of which he tethers to particu-
lar Sheehan factors and others he asserts more generally.
See id. at 2–16. None of Mr. Jones’s arguments are
persuasive.
Starting with his general allegations, Mr. Jones alleg-
es that the AJ took too long to decide his case—“over six
months from the close of the hearing until [the AJ] ren-
dered his decision.” Id. at 2. However, neither the gov-
erning statute nor the relevant regulation requires the AJ
to issue a decision within a particular time period.
5 U.S.C. § 7701(b)(1) (“The . . . [AJ] . . . shall make a
decision after receipt of the written representations of the
parties to the appeal and after opportunity for a hear-
ing.”); 5 C.F.R. § 1201.111(a) (“The judge will prepare an
JONES v. HHS 11
initial decision after the record closes and will serve that
decision on all parties to the appeal, including named
parties, permissive intervenors, and intervenors of
right.”).
Mr. Jones also alleges that the AJ improperly credited
the testimony of various witnesses. Pet’r’s Br. 8–11.
However, witness credibility “determinations are virtually
unreviewable,” Hambsch v. Dep’t of Treasury, 796 F.2d
430, 436 (Fed. Cir. 1986), and Mr. Jones has not provided
us with a sufficient reason for disturbing them, see Ander-
son v. City of Bessemer City, 470 U.S. 564, 575 (1985)
(“[W]hen a trial judge’s finding is based on his decision to
credit the testimony of one of two or more witnesses, each
of whom has told a coherent and facially plausible story
that is not contradicted by extrinsic evidence, that find-
ing, if not internally inconsistent, can virtually never be
clear error.”).
Mr. Jones argues further that the AJ failed to recog-
nize that HHS employees had “pre-select[ed]” other
candidates for the vacancies at issue, such that HHS did
not provide him with priority consideration for those
positions as required by the Veterans Employment Op-
portunities Act of 1998 (“VEOA”), Pub. L. No. 105-339,
112 Stat. 3182 (codified as amended in scattered sections
of 2, 3, 5, 10, 28, 31, 38, and 49 U.S.C. (2006)). 5 Pet’r’s
Br. 6. However, the decision under review addressed only
Mr. Jones’s USERRA claims, not those alleged under the
VEOA. Resp’t’s App’x 29–38. The type of VEOA claim
alleged by Mr. Jones does not fall “within the reach of
USERRA” because he does not allege that “the denial of
5 “Congress passed the VEOA to ensure that veter-
ans receive due consideration when they apply for vacant
positions available through the merit promotion process.”
Vassallo v. Dep’t of Def., 797 F.3d 1327, 1329 (Fed. Cir.
2015) (citation omitted).
12 JONES v. HHS
[the] veterans’ preference” reflects “evidence of anti-
veteran animus.” Burroughs v. Dep’t of the Army, 254
F. App’x 814, 817 (Fed. Cir. 2007) (unpublished); see
Pet’r’s Br. 6–7.
As for his last general argument, Mr. Jones contends
that the AJ erred by not removing agency counsel during
the hearing below. Pet’r’s Br. 14–16. According to
Mr. Jones, agency counsel “threaten[ed] [him] with eco-
nomic, and by extension[,] physical injury” throughout the
hearing. Id. at 15. Even if Mr. Jones’s claim had merit, it
would not impact our decision as to whether HHS violated
USERRA when it did not hire Mr. Jones because the non-
selection occurred well before the hearing.
Turning to the Sheehan factors, Mr. Jones alleges
that the AJ erred in applying the first factor. Id. at 11.
In particular, Mr. Jones avers that the AJ “totally omits
all the evidence and testimony that demonstrat-
ed . . . prejudice against veterans from [the Vietnam]
[W]ar is extant today.” Id. To the contrary, the AJ “fully
credit[ed]” this evidence, Resp’t’s App’x 29, but found that
other record evidence weighed against finding a nexus
between Mr. Jones’s service and HHS’s decision not to
hire him, id. at 30–31. Under the substantial evidence
standard of review, we “do[] not reweigh evidence on
appeal.” In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir.
2011).
Mr. Jones next contends that, as to the second
Sheehan factor, the AJ overlooked evidence in support of
his claim. For example, Mr. Jones alleges that statistical
evidence demonstrates that HHS hires few veterans.
Pet’r’s Br. 4. However, the AJ found that other evidence
outweighed those statistics. Resp’t’s App’x 36. We may
not reweigh that evidence. See NTP, 654 F.3d at 1292.
Mr. Jones also alleges that the AJ improperly disregarded
the fact that “he has been found ‘Best Qualified’ for at
least 175 positions.” Pet’r’s Br. 12. The AJ found Mr.
JONES v. HHS 13
Jones’s assertion to be “of little evidentiary value” because
it is based on Mr. Jones’s “self-evaluation” and, in any
event, HHS identified other evidence in support of its
decision to not select Mr. Jones when he was found to be
qualified. Resp’t’s App’x 36. We do not disturb the weight
that the AJ afforded to the competing record evidence.
See NTP, 654 F.3d at 1292.
Finally, as to the third Sheehan factor, Mr. Jones
avers that an email sent by an HHS employee reveals a
discriminatory animus towards veterans and that testi-
mony from other HHS employees corroborates his claim.
Pet’r’s Br. 5–6. The AJ, however, found that Mr. Jones
failed to link this email and the related testimony to the
hiring decisions in dispute. Resp’t’s App’x 37. Although
Mr. Jones cites the same evidence and raises the same
argument that the AJ rejected, he has not demonstrated
that the AJ erred in reaching that conclusion, nor does he
identify other record evidence to support his claim.
Therefore, we reject it. See Poett v. Merit Sys. Prot. Bd.,
360 F.3d 1377, 1381 (Fed. Cir. 2004) (“[U]nsubstantiated”
assertions do not equate to evidence.).
CONCLUSION
We have considered Mr. Jones’s remaining arguments
and find them unpersuasive. Accordingly, the Final
Decision of the Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.