John Paul Jones, III v. Armed Forces Retirement Home ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0149-I-1
v.
ARMED FORCES RETIREMENT DATE: March 8, 2016
HOME,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Robert Charles Rutherford, Jr., Washington Navy Yard, 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 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A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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 administrative
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, 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 following facts are undisputed unless otherwise noted. The appellant
exhausted his administrative remedies with the Department of Labor and timely
filed an appeal alleging that the Armed Forces Retirement Home (“AFRH” or “the
agency”) violated his veterans’ preference rights when it did not select him for a
Health System Administrator position under Vacancy Announcement
14-AFRH-137P, which was open to United States Citizens. Initial Appeal File
(IAF), Tab 1, Tab 7 at 5, 26. The agency adjudicated the appellant’s veterans’
preference and included him on the certificate of Best Qualified candidates
referred to the selecting official, but none of the referred candidates were
interviewed or selected because the agency determined that none of the applicants
had any long-term care experience. IAF, Tab 7 at 7, 25, Tab 9 at 6, Tab 10 at 5.
The agency re-advertised the position to attract new applicants. Id.
¶3 On appeal, the appellant argued that the agency’s decision to repost the
position without selecting a candidate was “an enormous RED FLAG, indicating
unlawful action.” IAF, Tab 1 at 5. The appellant further argued, among other
things, that the agency failed to credit his military experience. Id. The
administrative judge advised the parties of the applicable law and burdens of
3
proof and ordered the appellant to submit evidence and argument to determine
whether there was a genuine dispute of material fact at issue on appeal. IAF,
Tab 8. After considering the parties’ submissions, the administrative judge
denied the appellant’s request for corrective action under VEOA, without holding
a hearing, and found that there was no genuine dispute of material fact regarding
his allegation that the agency violated VEOA. IAF, Tab 13, Initial Decision (ID)
at 8; Tabs 9-12.
¶4 In reaching his decision, the administrative judge found that the appellant
offered no evidence to contradict the sworn declaration of the agency’s human
resources specialists stating that the agency decided to re-advertise the position
and cancel the vacancy announcement without making a selection because none
of the applications had long-term care experience. ID at 7; IAF, Tabs 9-10. The
administrative judge also found, based on the undisputed facts, that the appellant
failed to generate a genuine dispute of material fact regarding the allegation that
the agency failed to credit his military experience. ID at 6. The appellant filed a
petition for review, and the agency responded in opposition to his petition.
Petition for Review (PFR) File, Tabs 1, 3.
¶5 To be entitled to relief under VEOA, the appellant must prove by
preponderant evidence that the agency’s action violated one or more of his
statutory or regulatory veterans’ preference rights in its selection process.
Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 10 (2010). A
preponderance of the evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely to be true than untrue.
5 C.F.R. § 1201.56(c)(2). The Board has the authority to decide a VEOA appeal
on the merits, without a hearing, where there is no genuine dispute of material
fact and one party must prevail as a matter of law. Haasz v. Department of
Veterans Affairs, 108 M.S.P.R. 349, ¶ 9 (2008). A factual dispute is “material”
if, in light of the governing law, its resolution could affect the outcome.
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Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). A factual
dispute is “genuine” when there is sufficient evidence favoring the party seeking
an evidentiary hearing for the administrative judge to rule in favor of that party
should that party’s evidence be credited. Id.
¶6 Preference-eligible veterans applying for Federal employment have the right
“to credit for all experience material to the position for which examined,
including experience gained in religious, civic welfare, service, and
organizational activities, regardless of whether” such experience is unpaid.
5 U.S.C. § 3311(2); see 5 C.F.R. § 302.302(d); see also Miller v. Federal Deposit
Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014). Although a preference
eligible is entitled to have a broad range of experiences considered by the agency
in reviewing his application for a position, how the agency adjudges and weighs
those experiences is beyond the purview of the Board’s review in a VEOA appeal.
Miller, 121 M.S.P.R. 88, ¶ 9.
¶7 The matter at issue in a VEOA appeal is not whether a particular agency
action is proper and should be sustained. Id. Pursuant to 5 U.S.C. § 3311(2) and
5 C.F.R. § 302.302(d), the Board is limited to assessing whether an agency
considered all of an appellant’s “valuable experience” that is material to the
position for which he has applied, and this assessment does not include a review
of the weight the agency gave to a preference eligible’s prior experiences in
determining that he was not qualified for a position of employment. Miller,
121 M.S.P.R. 88, ¶ 9. That said, VEOA does not guarantee a preference eligible
a position of employment. Scharein v. Department of the Army, 91 M.S.P.R. 329,
¶¶ 9-10 (2002), aff’d, No. 02‑3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
¶8 It is undisputed that the agency did not select any of the candidates who
applied under Vacancy Announcement 14-AFRH-137P. ID at 2-3. Although the
appellant argues that the agency unlawfully decided to cancel the announcement
without making a selection and re-advertise the position, the Board has
recognized that there is no statute or regulation requiring that an agency make a
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selection from the applicants for a vacancy announcement. To the contrary, the
Board has observed that an agency may cancel or repost a vacancy announcement
without making a selection. See Abell v. Department of the Navy, 343 F.3d 1378,
1384 (Fed. Cir. 2003) (finding that “[a]n agency may cancel a vacancy
announcement for any reason that is not contrary to law”); Ward v. Office of
Personnel Management, 79 M.S.P.R. 530, 534 (1998) (an agency has discretion
as to which sources it will use to fill its positions and may select or not select
from the applicants who respond to a vacancy announcement), aff’d, 194 F.3d
1333 (Fed. Cir. 1999) (Table). The agency presented undisputed evidence of a
lawful reason for canceling the vacancy announcement; specifically that none of
the candidates on the certificate of eligibles had long-term care experience and,
therefore, the agency decided to “modify the job analysis questions and
re-advertise the position.” IAF, Tab 9 at 6, Tab 10 at 5.
¶9 On review, the appellant also fails to identify any evidence in the record
that supports his generic argument that the agency violated his rights under
regulations related to veterans’ preference by failing to credit his qualifying
experience in processing his application. 2 PFR File, Tab 1 at 11; see Miller,
121 M.S.P.R. 88, ¶ 12. Instead, the appellant raises various arguments on review
that are not dispositive and present no basis for disturbing the initial decision
2
As stated previously, the agency submitted affidavits from the human resources
specialists swearing under the penalty of perjury that they adjudicated the
appellant’s 5-point (TP) veterans’ preference, reviewed all of the documents in his
application package, and placed him on the certificate of “Best Qualified” candidates
referred to the hiring authority. IAF, Tabs 9-10. Regardless, we note that the Board
denied the appellant’s request for corrective action in a prior VEOA appeal, despite
finding that the agency failed to afford him veterans’ preference in the rating process,
because the agency made no selection under the vacancy announcements, and therefore
he would not have been selected. Jones v. Department of Health & Human Services,
119 M.S.P.R. 355, ¶ 14, aff’d, 544 F. App’x 976 (Fed. Cir. 2012). Consequently, the
Board found no basis to find that the appellant suffered any harm from the agency’s
error failing to afford him veterans’ preference in the rating process for that
position. Id.
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denying his request for corrective action under VEOA. 3 The agency’s decision to
select none of the candidates who applied under Vacancy Announcement
14-AFRH-137P did not deny the appellant his opportunity to compete for the
position or otherwise violate his rights under a statute or regulation relating to
veterans’ preference. We therefore deny the 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
U.S. Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
U.S. 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).
3
For example, the appellant argues that the administrative judge improperly denied his
right to a hearing and hearings should be mandatory based on the findings stated in the
Board’s January 2015 study titled, “The Impact of Recruitment Strategy on Fair and
Open Competition for Federal Jobs.” PFR File, Tab 1 at 5-10. He states that agencies
found him “‘Best Qualified’ for at least 176 positions,” but he never received an offer
of employment. Id. at 26. He discusses his past VEOA appeals involving agencies
other than AFRH and claims that there is a pattern and practice of intentionally
circumventing veterans’ rights. Id. at 11-15, 17. He discusses the Board’s obligations
to veterans and provides a historical analysis of the mistreatment of veterans, which
includes references to “The Odyssey” by Homer and to corruption within the Veterans
Administration. Id. at 22-24. He also argues that the administrative judge failed to
perform his judicial duties. Id. at 9. However, we find that the appellant failed to
establish a basis for granting his petition for review. Id. at 9.
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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 U.S. 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 U.S. 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 U.S. 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 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.