John Paul Jones, III v. Department of Health and Human Services ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES III, DOCKET NUMBER
Appellant, DE-3330-12-0399-I-2
v.
DEPARTMENT OF HEALTH AND DATE: September 11, 2014
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones III, Albuquerque, New Mexico, pro se.
Marie T. Ransley, Esquire, and Murray Kampf, Atlanta, Georgia, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
one only when: the initial decision contains erroneous findings of 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).
BACKGROUND
¶2 In March 2012, the agency issued concurrent competitive and merit
promotion vacancy announcements for a GS-12/13 Public Health Analyst (PHA)
position in the Division of Health and Nutrition Examination Surveys (DHANES)
at the National Center for Health Statistics (NCHS), a component of the agency’s
Centers for Disease Control and Prevention located in Hyattsville, Maryland. See
MSPB Docket No. DE-3330-12-0399-I-1, Initial Appeal File (I-1 IAF), Tab 9
at 68-72, 74-78. The appellant, a preference-eligible veteran, applied for the
position under the competitive vacancy announcement HHS-CDC-DE-12-618099
(Announcement 099). 2 Id. at 4-12, 64-66. An agency Human Resources
employee reviewed the applications for the PHA position and determined that the
appellant was qualified for the position at the GS-12 level but not at the GS-13
2
The announcement number for the merit promotion vacancy announcement was HHS-
CDC-MP-12-618062 (Announcement 062). I-1 IAF, Tab 9 at 68.
3
level. Id. at 43-44, 62. Certificates of eligible candidates were generated for
each announcement and forwarded to the selecting official, the DHANES Deputy
Director L.B. 3 Id. at 26-29, 31-41. Ms. L.B. asked a screening panel comprised
of DHANES Director C.J. and P.M., Director of the NCHS Research Data Center,
to evaluate the “approximately 40 application packages of all candidates
determined qualified [for the PHA position at the GS-12 and/or GS-13 level] by
the Office of Human Resources.” I-1 IAF, Tab 8 at 21, Tab 9 at 23. Specifically,
Mr. C.J. and Mr. P.M., acting independently, were to assign each of these
candidates a rating from zero to three in the categories of budget, outreach and
interpersonal relationships, and writing. I-1 IAF, Tab 9 at 23. The panel was
then to determine which candidates were best qualified based on those rankings
and recommend which candidates should be interviewed. Id.¶3 Mr. C.J. and Mr. P.M. each awarded the appellant a total of five points (one
for budget, three for outreach, and one for writing). I-1 IAF, Tab 8 at 68, Tab 9
at 4, 13. 4 Four applicants, all of whom were on the noncompetitive candidate
referral list for the GS-13 level, received scores of six points or higher from both
members of the panel. I-1 IAF, Tab 8 at 61-62, 68-69, Tab 9 at 36-37. The
screening panel forwarded the applications of those four individuals to Ms. L.B.
3
Two certificates of eligibles were generated for Announcement 099 (one each for the
GS-12 and the GS-13 level), I-1 IAF, Tab 9 at 26-29, and two merit promotion
certificates of eligibles were generated under Announcement 062 (one each for the
GS-12 and the GS-13 level), id. at 31-35. Three other lists of candidates for the PHA
position also were generated under Announcement 062: two noncompetitive candidate
referral lists (one each for the GS-12 and the GS-13 level), which consisted of the
names of individuals who indicated they were eligible for a noncompetitive
appointment to the PHA position; and a “non-traditional certificate of eligibles.” Id.
at 36-41.
4
Although Mr. C.J.’s notation on the appellant’s résumé indicate that he awarded the
appellant a score of two in the category of outreach, and the score he awarded the
appellant for writing is not visible in his notations, I-1 IAF, Tab 9 at 13, Mr. P.M.
clarified in his hearing testimony that Mr. C.J. awarded the appellant a score of one for
budget and three for outreach, see MSPB Docket No. DE-3330-12-0399-I-2, Initial
Appeal File (I-2 IAF), Tab 32, Initial Decision (ID) at 3 (citing Mr. P.M.’s hearing
testimony).
4
for further consideration, and she selected one of those applicants for the PHA
position. I-1 IAF, Tab 8 at 21.
¶4 After exhausting his administrative remedies with the Department of Labor,
the appellant filed this appeal and requested a hearing. I-1 IAF, Tab 1 at 2, 9.
The appellant alleged that the agency violated his veterans’ preference rights by
failing to properly consider his military and other experience in evaluating his
qualifications for the purpose of referring candidates for the PHA position to
Ms. L.B. for selection. I-2 IAF, Tab 4 at 6-7. In particular, he asserted that the
screening panel did not properly consider his “almost 40 years of experience with
budgets . . . as well as his extensive writing experience.” Id. at 11. He also
contended that he was entitled to priority consideration in the selection process
for the PHA position because he had been erroneously classified as a nonveteran
during a previous selection process for another position with the agency. Id.
at 13-14. In addition, he claimed that he is entitled to liquidated damages
because the agency engaged in willful misconduct in violating his veterans’
preference rights. I-1 IAF, Tab 1 at 8; I-2 IAF, Tab 4 at 14-15.
¶5 After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action under VEOA. ID at 2, 10.
The administrative judge found that the screening panel properly considered the
appellant’s experience in selecting the candidates to refer to Ms. L.B. ID at 6-9.
The administrative judge further found that the appellant did not show that the
agency improperly failed to afford him priority consideration in the selection
process for the PHA position. ID at 9-10. Lastly, the administrative judge found
that, because the appellant did not show that the agency violated his veterans’
preference rights, he was not entitled to liquidated damages. ID at 10.
¶6 The appellant has filed a petition for review, the agency has filed a response
to the petition for review, and the appellant has filed a reply to the agency’s
response. Petition for Review (PFR) File, Tabs 1, 3, 5.
5
ANALYSIS
The administrative judge correctly found that the agency properly considered the
appellant’s experience in selecting the candidates to refer to the selecting official.
¶7 On review, the appellant reasserts his argument from below that the
screening panel improperly failed to consider his experience in determining which
candidates to refer to Ms. L.B. for interviews. PFR File, Tab 1 at 26-27; I-2 IAF,
Tab 4 at 6-7. In particular, he asserts that his rating in the areas of “budgeting”
and “writing” should have been higher than one because he has “over 30 years’
high quality professional experience in both categories.” PFR File, Tab 1
at 26-27.
¶8 Under 5 C.F.R. § 302.302(d), when experience is a factor in determining
eligibility, an agency shall credit a preference-eligible as follows:
(1) with time spent in the military service of the United
States if the position for which he/she is applying is
similar to the position which he/she held immediately
before his/her entrance into the military service; and
(2) with all valuable experience, including experience
gained in religious, civic, welfare, service, and
organizational activities, regardless of whether pay was
received therefore.
¶9 In this case, the screening panel received explicit guidance for assigning
scores to applicants when rating their experience in the areas of budget, outreach
and interpersonal relationships, and writing. Specifically, in the category of
writing, the panel members were instructed to award applicants one point for each
of the following areas in which they had experience: (1) writing responses to
inquiries from the public, collaborators, or agency and congressional officials;
(2) writing interagency agreements, memoranda of understanding, contracts, or
other documents; and (3) preparing directives, memoranda, or policy statements.
I-1 IAF, Tab 9 at 23. In the budget category, the panelists were instructed to
award applicants three points for budget experience that included interagency
agreements, two points for budget experience that included contracts or grants,
6
and one point for limited budget experience that did not include either of the
aforementioned areas. 5 Id.¶10 In his hearing testimony, as summarized in the initial decision, Mr. P.M.
offered three reasons for awarding only one point for the appellant’s budget
experience: (1) his military experience was as a medical corpsman treating
soldiers in a combat situation in Vietnam and did not involve budgeting
responsibilities; (2) his private sector experience did not include budget
experience with interagency agreements or the type of contracts or grants
administered by the DHANES, which involve reimbursable budgeting in the area
of public health surveys; and (3) although his résumé revealed a strong grasp of
statistics, a background in statistics was not required for the PHA position. See
ID at 7-9.
¶11 As for the appellant’s writing experience, Mr. P.M. explained that he
afforded the appellant only one point for that category because the appellant’s
résumé only showed experience preparing directives, memoranda, or policy
statements and did not show experience involving either writing: (1) responses to
inquiries from the public, collaborators, or agency and congressional officials; or
(2) interagency agreements, memoranda of understanding, contracts, or other
documents in responding to congress or department or interagency agreements.
See ID at 9 (citing Mr. P.M.’s hearing testimony).
¶12 The administrative judge found that Mr. P.M.’s testimony shows that the
agency complied with 5 C.F.R. § 302.302(d) by properly considering all of the
appellant’s “valuable experience” in selecting the candidates to refer to Ms. L.B.
ID at 9. We agree. It is clear from Mr. P.M.’s testimony that, in evaluating the
appellant’s qualifications for the PHA position, the agency considered his
5
We do not address the third category in which applicants were rated, i.e., outreach and
interpersonal relationships, because each panelist awarded the appellant the maximum
score of three for this category. I-1 IAF, Tab 9 at 4, 13; see ID at 7 n.4 (citing
Mr. P.M.’s hearing testimony).
7
experience, including his military experience, 6 and properly applied the relevant
scoring criteria in awarding the appellant a score of one in the areas of budget and
writing experience. Specifically, the screening panel correctly determined that
the appellant was entitled to a score of one in the area of budget experience
because his: (1) military experience did not involve budgeting responsibilities;
and (2) private sector experience did not include budget experience with
interagency agreements or the type of contracts or grants administered by the
DHANES. See ID at 7-8 (citing Mr. P.M.’s hearing testimony). The screening
panel also properly awarded the appellant a score of one in the area of writing
experience because his résumé showed only experience preparing directives,
memoranda, or policy statements. See ID at 9 (citing Mr. P.M.’s hearing
testimony). Thus, we discern no reason to disturb the administrative judge’s
finding that the agency did not violate the appellant’s veterans’ preference rights
in determining which candidates to refer to Ms. L.B. for selection. See ID at 7, 9.
The administrative judge properly found that the appellant did not show that the
agency improperly failed to afford him priority consideration in the selection
process for the PHA position.
¶13 On review, the appellant also reasserts his argument that the agency’s
internal regulations required the agency to afford him priority consideration in the
selection process for the PHA position. PFR File, Tab 1 at 28; I-2 IAF, Tab 4
at 13-14; see I-2 IAF, Tab 11 at 7 (stating that priority consideration is a special
placement priority that is given to an eligible who was previously denied
consideration due to an administrative error or a law or regulatory violation). The
appellant asserts on review, as he did below, that the agency was required to
afford him priority consideration for the PHA position at issue in this appeal
because the Board found in one of his prior appeals that the agency had failed to
afford him veterans’ preference in the rating process for a Public Health Advisor
6
As the administrative judge noted, the appellant did not assert that Mr. C.J. and
Mr. P.M. failed to properly credit any experience he gained in religious, civic, welfare,
service, and organizational activities. ID at 7 n.5.
8
position in Kazakhstan. I-2 IAF, Tab 4 at 13-14; see Jones v. Department of
Health & Human Services, 119 M.S.P.R. 355, ¶¶ 12-13 (2013) (finding that the
agency violated the appellant’s veterans’ preference rights by erroneously
identifying him as a “non-veteran” on the applicant listing report for the Public
Health Advisor position), aff’d, 544 F. App’x 976 (2014).
¶14 As the administrative judge explained, however, in the earlier Jones case,
the Board also found that the appellant did not suffer any harm as a result of the
agency’s failure to afford the appellant’s veterans’ preference because the agency
did not select anyone to fill that position under either the competitive vacancy
announcement by which the appellant applied for the position or a concurrent
merit promotion announcement. See ID at 9; Jones, 119 M.S.P.R. 355, ¶ 14. In
addition, the Board found that, even if the agency had made a selection for the
Kazakhstan vacancy under either announcement, the appellant would not have
been selected for the position because the only applicants under the competitive
announcement whose names appeared on the certificate of eligibles for that
announcement were rated Best Qualified on the applicant listing report for that
announcement and the appellant was not rated Best Qualified on that report.
Jones, 119 M.S.P.R. 355, ¶ 15.
¶15 In light of the Board’s finding that the appellant would not have been
selected for the Kazakhstan vacancy even absent the agency’s failure to afford
him veterans’ preference in the rating process for that vacancy, the appellant was
not entitled to priority consideration in the selection process for the position at
issue in this appeal. Therefore, the administrative judge correctly found that the
appellant did not show that the agency improperly failed to afford him priority
consideration in the selection process for the PHA position at issue in this appeal.
ID at 9-10.
9
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 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
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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.