John Paul Jones, III v. Department of Health and Human Services ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-14-0526-I-1
v.
DEPARTMENT OF HEALTH AND DATE: March 13, 2015
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
James E. Simpson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant, a 5-point (TP) preference-eligible veteran, applied for a
GS-15 Public Health Analyst position under the agency’s Delegated Examining
(DE) Vacancy Announcement No. HHS-OMH-DE-14-1052798, which was open
to United States citizens. Initial Appeal File (IAF), Tab 10 at 12, Tab 11 at 8-9.
The agency announced its intention to fill one vacancy and informed applicants of
a separate merit promotion announcement by stating that:
This vacancy is also being announc[ed] concurrently with vacancy
announcement HHS-OMH-MP-14-1052799 under merit promotion
procedures. Please review that announcement to see if you are
eligible to apply under those procedures. NOTE: Applicants must
apply separately for each announcement.
IAF, Tab 10 at 12. It is undisputed that the appellant applied only under the DE
announcement. See IAF, Tab 12 at 1.
¶3 The agency informed applicants that it would use the category rating
procedure to rank and select eligible candidates under the DE announcement and
to assign qualified candidates to the categories of “Best Qualified,” “Well
Qualified,” and “Qualified.” IAF, Tab 10 at 14. The agency also explained that
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it would apply veterans’ preference by placing preference eligibles at the top of
their assigned category and considering them before nonpreference eligibles in
that category. Id. at 15. It is undisputed that the appellant was rated as one of the
two Best Qualified veterans on the DE certificate referred to the selecting
official. IAF, Tab 12, Initial Decision (ID) at 4, Tab 11 at 5, 12. However, the
agency selected a candidate to fill the Public Health Analyst position from one of
the merit promotion certificates referred to the selection official. IAF, Tab 11 at
16; ID at 2.
¶4 The appellant filed a complaint with the Department of Labor (DOL) and
alleged that the agency did not properly consider his veterans’ preference. See
IAF, Tab 1 at 4, 8. DOL investigated but concluded that the evidence did not
support the appellant’s allegation that the agency violated his veterans’
preference rights. Id. at 8. In its letter informing the appellant of its
investigative results, DOL stated that the evidence indicated that the agency filled
the position from the merit promotion certificate generated from the merit
promotion announcement; the appellant applied under the concurrent DE
announcement, but the agency had the legal right to select from any certificate to
fill the position. See id. The appellant subsequently filed this VEOA appeal with
the Board and requested a hearing. IAF, Tab 1 at 2.
¶5 On appeal, the appellant argued that the agency’s selection process violated
his veterans’ preference rights by “not fairly testing the applicants” and by not
crediting his military experience. Id. at 5. The appellant also argued that the
selection process was unlawful because the individual selected from the merit
promotion certificate had “a personal relationship with the hiring authority” and
the agency screened out applicants over 60. Id. In support of his appeal, the
appellant submitted a copy of the DOL file closure letter and the notice he
received from USA Jobs stating that the agency did not select him. IAF, Tab 1 at
7-8. The appellant also submitted an email providing details of past hiring
actions by the agency concerning vacancy announcements unrelated to the instant
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appeal. IAF, Tab 6 at 4, 8-9. Citing that email and an unrelated Board decision,
the appellant argued that the Board’s rulings strongly support veterans’
preference rights and that the agency has an institutional culture that openly
violates those rights. Id. at 4-5.
¶6 The agency filed a motion to dismiss the appellant’s VEOA appeal and
provided supplemental evidence ordered by the administrative judge to confirm
that the agency made its selection under the merit certificate and not the DE
certificate under which the appellant applied. IAF, Tabs 5, 10-11, Tab 9 at 5-7.
The appellant did not respond to the agency’s motion to dismiss.
¶7 Without holding the hearing requested by the appellant, the administrative
judge issued an initial decision denying the appellant’s request for corrective
action under VEOA. ID at 1-2. The administrative judge found that there was no
genuine dispute of material fact and that the agency did not violate the appellant’s
rights under VEOA by exercising its managerial judgment and selecting a
candidate from the merit promotion certificate. ID at 1, 4. For the purposes of
the decision, the administrative judge considered as true the appellant’s allegation
that the selecting official knew the selected applicant, and he found no
impropriety in the selection. ID at 4. The administrative judge also found, inter
alia, that he had no authority to consider the agency’s past hiring actions in
deciding this VEOA appeal. ID at 4.
¶8 The appellant filed a petition for review asking the Board to remand the
appeal to the field office with instructions to hold a hearing for the agency to
explain its hiring decision. Petition for Review (PFR) File, Tab 1 at 27. In
support of his request, the appellant reasserts his argument that the agency has a
pattern and practice of denying veterans’ legal rights and that the agency has a
“moral and legal obligation to hire the veteran.” PFR File, Tab 1 at 4-5, Tab 6 at
4 (emphasis in original).
¶9 To be entitled to relief under VEOA, the appellant must prove by
preponderant evidence that the agency’s selection violated one or more of his
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statutory or regulatory veterans’ preference rights. Dale v. Department of
Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). Contrary to the appellant’s
arguments on review, VEOA does not guarantee the preference-eligible appellant
a position; the statute only affords him the right to compete for the position. See
Abell v. Department of the Navy, 92 M.S.P.R. 397, 400-01 (2002), aff’d, 343 F.3d
1378 (Fed. Cir. 2003). The Board may decide a VEOA claim on the merits
without a hearing when there is no genuine issue of material fact and one party
must prevail as a matter of law. Davis v. Department of Defense, 105 M.S.P.R.
604, ¶ 12 (2007).
¶10 The appellant has not shown that the agency violated his veterans’
preference rights in this case when it made its selection from the merit promotion
certificate issued pursuant to the merit promotion announcement, for which he did
not apply. An agency has the discretion to fill a vacant position by any
authorized method, and the Board has held that there is nothing preventing an
agency from soliciting applications from the public and from merit promotion
applicants simultaneously and filing the vacant position from the merit promotion
certificate. See Joseph v. Federal Trade Commission, 505 F.3d 1380, 1384 (Fed.
Cir. 2007) (finding that the agency did not violate VEOA by conducting
“simultaneous parallel procedures under the competitive examination and merit
promotion processes to fill the same position” and selecting someone other than
the veteran under the merit promotion process); Dean v. Consumer Product Safety
Commission, 108 M.S.P.R. 137, ¶ 11 (2008). Moreover, the appellant has not
shown that the agency denied his right to compete under the DE vacancy
announcement at issue, considering the undisputed evidence that his name was on
the certificate of “Best Qualified” candidates referred to the selecting officials.
IAF, Tab 11 at 5, 12.
¶11 Having considered the appellant’s arguments on review, we find no new,
previously unavailable evidence and that the administrative judge made no error
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in law or regulation that affects the outcome. 2 We therefore deny the appellant’s
petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
2
We are not persuaded by the appellant’s argument that the administrative judge
“committed legal error in accepting the Agency’s word that the selecting official”
lawfully hired from the merit promotion certificate. PFR File, Tab 1 at 17. The record
reflects that the administrative judge ordered the agency to submit proof that it filled
the Public Health Analyst position with a candidate from the merit promotion
certificate; the agency submitted the requested documents; and the administrative judge
considered that evidence in making his decision. ID at 4; IAF, Tabs 5, 10, Tab 11 at 2.
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Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.