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-3330-15-0145-I-1
v.
DEPARTMENT OF HEALTH AND DATE: May 26, 2015
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Joan M. Zanzola, Chicago, Illinois, 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 the appellant’s 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
material fact; 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 In this appeal, the appellant alleged that the agency violated his veterans’
preference rights under VEOA by failing to consider him for a GS-15 Health
Service Administrator position with the Indian Health Service in Bemidji,
Minnesota. Initial Appeal File (IAF), Tabs 1, 9. The administrative judge found
jurisdiction over the appeal, but he denied the appellant’s request for corrective
action without holding a hearing because the agency established that the position
at issue was subject to regulations awarding a hiring preference to persons of
Indian descent, for which the appellant acknowledges he does not qualify, and the
agency received ample applications from individuals both substantively qualified
for the position and of Indian descent, such that it did not need to consider any
non-Indian preference candidates for the position. IAF, Tab 13, Initial Decision
(ID) at 4-5. As for the appellant’s request that the administrative judge postpone
his decision pending agency proof that it indeed hired an individual of Indian
descent, the administrative judge noted both in his close of record order and in
the initial decision that he is without authority to consider an alleged VEOA
3
violation based on a selection decision when that decision was made after the
appellant sought relief from the Department of Labor (DOL). ID at 5.
¶3 In his petition for review, the appellant does not challenge either the
relevance of or the agency’s application of Indian preference regulations in the
selection process at issue. Petition for Review (PFR) File, Tab 1. Instead, he
extensively discusses other actions he has filed, asserts that the administrative
judge erred in not holding a hearing or allowing him to conduct discovery, and
reiterates that he would withdraw his complaint if the agency would establish that
an Indian candidate was actually hired. Id. The agency responded in opposition.
PFR File, Tab 2.
¶4 To establish Board jurisdiction over an appeal brought under the VEOA, an
appellant must: (1) show that he exhausted his remedy with DOL; and (2) make
nonfrivolous allegations that (i) he is a preference eligible within the meaning of
the VEOA, (ii) the action(s) at issue took place on or after October 30, 1998, and
(iii) the agency violated his rights under a statute or regulation relating to
veterans’ preference. Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162,
¶ 9 (2003), overruled on other grounds by Goldberg v. Department of Homeland
Security, 99 M.S.P.R. 660 (2005). 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).
¶5 The administrative judge correctly determined that the record reflects no
genuine issue of material fact and that the agency must prevail as a matter of law.
It is well established that the agency may apply Indian preference regulations in
hiring for positions in the Indian Health Service. E.g., Mullenberg v. United
States, 857 F.2d 770, 771 (Fed. Cir. 1988); Nelson v. Department of Health &
Human Services, 119 M.S.P.R. 276, ¶ 2 (2013); see 42 C.F.R. § 136.41. The
record reflects that the agency did so and that it received applications from ample
qualified individuals for the position at issue who also qualified for Indian
4
preference, such that the agency found it unnecessary to consider the appellant for
the position. ID at 2-3, n.1; see IAF, Tab 8 at 81-87, 104-06. Under these
circumstances, we agree with the administrative judge’s decision to deny the
appellant’s request for corrective action under VEOA.
¶6 The administrative judge also correctly declined to postpone his decision
until the agency offered proof that it had actually hired an Indian candidate for
the position as the record does not indicate that the agency had made its selection
at the time the appellant filed his VEOA complaint with DOL. ID at 5; compare
IAF, Tab 8 at 106 (declaration that the agency had not yet begun interviews for
the position as of January 20, 2015), with IAF, Tab 1 at 8 (DOL letter indicating
that the appellant filed his VEOA complaint on January 8, 2015); see Graves v.
Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 13 (2012) (the appellant
failed to exhaust his DOL remedy because he filed his DOL complaint before any
nonselection or other violation occurred).
¶7 Lastly, we find that the administrative judge did not abuse his discretion
regarding discovery. The Board will not reverse an administrative judge’s rulings
on discovery matters absent an abuse of discretion. Wagner v. Environmental
Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.
1993) (Table). As the administrative judge observed, given the reasons for which
the appellant failed to establish that the agency violated his rights under VEOA,
the appellant also failed to identify any discovery he sought which could lead to
potentially relevant evidence on that issue. ID at 5. Similarly, the appellant fails
to explain on review why anything he sought in discovery would have changed
the result in his appeal. See Russell v. Equal Employment Opportunity
Commission, 110 M.S.P.R. 557, ¶ 15 (2009) (the appellant must explain how any
information he sought would have changed the result of the appeal in order to
establish an abuse of the administrative judge’s discretion).
5
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
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
6
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.