John Paul Jones, III v. Department of Health and Human Services ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0377-I-1
v.
DEPARTMENT OF HEALTH AND DATE: March 15, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Marie T. Ransley, Esquire, Atlanta, Georgia, 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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. 2
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 administrative judge denied the appellant’s request for corrective action based on
the written record, finding that the appellant failed to generate a genuine issue of
material fact that required a hearing. Initial Appeal File (IAF), Tab 15, Initial Decision
(ID) at 1. A factual dispute is “material” if, in light of the governing law, its resolution
could affect the outcome. 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 if he credits that party’s evidence. See id. On review, the appellant reasserts the
argument he made on appeal, disputing the agency’s determination that he was not
qualified for the announced position and claiming that the administrative judge
unlawfully denied his right to a hearing. IAF, Tab 13 at 11-25; Petition for Review
(PFR) File, Tab 1 at 8, 12-17. It is undisputed that the agency did not select a candidate
under the delegated examining vacancy announcement to fill the position at issue. ID
at 3; IAF, Tab 9 at 11. The Board has recognized that there is no law or regulation
requiring an agency to select an applicant under a vacancy announcement. See 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). We find that the arguments raised by the appellant on review
are not dispositive and provide no basis to disturb the initial decision denying his
request for corrective action under VEOA. Contrary to the appellant’s argument on
appeal, the Board has the authority to decide a VEOA appeal on the merits, without a
hearing, if, as in this case, there is no genuine dispute of material fact and one party
must prevail as a matter of law. PFR File, Tab 1 at 8; see Haasz v. Department of
Veterans Affairs, 108 M.S.P.R. 349, ¶ 9 (2008).
3
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).
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
4
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.