Jones v. Hhs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL JONES, III,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2017-2310
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DE-3330-17-0119-I-1, DE-4324-17-0121-I-1.
______________________
Decided: December 11, 2017
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
JIMMY MCBIRNEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., DEBORAH
BYNUM.
______________________
2 JONES v. HHS
Before NEWMAN, WALLACH, and STOLL, Circuit Judges.
PER CURIAM.
John Paul Jones, III appeals the final decision of the
Merit Systems Protection Board, denying his claims
under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) and the
Veterans Employment Opportunities Act of 1998
(“VEOA”). Mr. Jones contends that the Department of
Health and Human Services violated his USERRA and
VEOA rights by not selecting him for the position of
Public Health Advisor (International Program Director) in
HHS’s Health Resources and Services Administration
(“HRSA”). We conclude that the Board’s decision is
supported by substantial evidence. Accordingly, we
affirm.
BACKGROUND
Mr. Jones is a Vietnam War veteran who applied for
the position of Public Health Advisor (International
Program Director) in the HRSA. The vacancy announce-
ment specified that the basic requirements for the posi-
tion included: (1) “[k]nowledge of organizational,
operational, and programmatic concepts and practices
applied by public, private, or nonprofit agencies and
organizations engaged in public health”; (2) “[k]nowledge
of the methods, processes, and techniques used to develop
and deliver public health . . . programs”; (3) “[k]nowledge
of a specialized public health program”; (4) “[k]nowledge
of, and skill in . . . methods and techniques necessary for
working within . . . a public health . . . organization”; and
(5) “[s]kill in oral and written communications.” J.A. 71.
The announcement required that applicants have “one
full year of public health program specialized experience”
in international healthcare programs. J.A. 72.
HRSA afforded Mr. Jones a five-point veterans pref-
erence to which he was entitled when he applied for the
JONES v. HHS 3
Public Health Advisor position. HRSA referred
Mr. Jones’s application to three subject matter experts
who were all active duty uniformed services members in
the Commissioned Corps of the Public Health Service.
The experts were tasked with reviewing Mr. Jones’s
resume to assess whether his qualifications met the basic
requirements for the position. After independently re-
viewing Mr. Jones’s qualifications, each expert deter-
mined that Mr. Jones lacked the requisite specialized
experience in public health for the position.
Mr. Jones initially sought corrective action for his
non-selection from the Department of Labor, which ulti-
mately closed its inquiry of Mr. Jones’s VEOA claim.
Mr. Jones appealed to the Board, arguing that HRSA
failed to credit all of his relevant work experience for the
position in violation of the VEOA. Mr. Jones also alleged
that he was not selected because of his prior military
service and in retaliation for his prior USERRA appeals.
The Board joined the appeals and conducted a hearing.
Following the hearing, the Board denied Mr. Jones’s
VEOA and USERRA claims. The Board concluded that
HRSA evaluated all of Mr. Jones’s material experience.
The Board credited HRSA’s subject matter experts’ testi-
mony that Mr. Jones’s prior military and private sector
experience was largely clinical in nature. The experts
further testified that Mr. Jones’s resume revealed no
evidence that he collected or analyzed data to prevent
health problems for a generalized population or had any
experience in public or international public health. The
Board also concluded that Mr. Jones failed to provide
preponderant evidence that his military service or his
prior USERRA activity was a substantial or motivating
factor in HRSA’s non-selection decision.
The Board’s decision became final on August 11, 2017.
Mr. Jones timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
4 JONES v. HHS
DISCUSSION
This court must affirm the Board’s decision unless it
is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012). Substantial evidence is
that which “a reasonable mind might accept as adequate
to support a conclusion.” Gallagher v. Dep’t of the Treas-
ury, 274 F.3d 1331, 1336 (Fed. Cir. 2001) (quoting Hogan
v. Dep’t of the Navy, 218 F.3d 1361, 1364 (Fed. Cir. 2000)).
I.
We first address Mr. Jones’s VEOA claim. To obtain
relief for a VEOA violation, Mr. Jones must demonstrate
that HRSA failed to afford him a bona fide opportunity to
compete for the Public Health Advisor position or violated
his veteran’s preference rights by not crediting him “for
all experience material to the position.” 5 U.S.C.
§ 3311(2); Abell v. Dep’t of the Navy, 343 F.3d 1378, 1383
(Fed. Cir. 2003) (“Under the VEOA, certain veterans and
preference eligibles ‘may not be denied the opportunity to
compete for vacant positions for which the agency making
the announcement will accept applications from individu-
als outside its own workforce under merit promotion
procedures.’” (quoting 5 U.S.C. § 3304(f)(1))).
Mr. Jones does not dispute that he was afforded an
opportunity to compete for the Public Health Advisor
position, nor could he. The record is replete with evidence
that HRSA considered Mr. Jones for the position and
afforded him the five points to which he was entitled for
his veteran’s preference-eligible status. Instead,
Mr. Jones alleges that the HRSA omitted qualifying
information from its evaluation. Mr. Jones contests the
weight HRSA gave to his prior medical and healthcare
experience in considering whether he was qualified for the
Public Health Advisor position. He also challenges the
JONES v. HHS 5
subject matter experts’ qualifications to determine wheth-
er he is qualified. Mr. Jones’s arguments, however, fail to
demonstrate that the HRSA violated his VEOA rights.
The record shows that HRSA’s subject matter experts
reviewed his qualifications and independently determined
that he lacked the specialized experience in public health
to qualify for the position. The Board credited the ex-
perts’ testimony, which is “virtually unreviewable” by this
court. Jones, 834 F.3d at 1368; see Pope v. U.S. Postal
Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997) (“As an appel-
late court, we are not in position to re-evaluate these
credibility determinations . . . .”). Moreover, neither the
Board nor this court is in the position to second-guess the
weight HRSA gave Mr. Jones’s work experience or how it
assessed his qualifications for the position. See Jones,
640 F. App’x at 863 (“The Board’s role in a VEOA appeal
is limited: the VEOA does not empower the Board to
supplant the [agency’s] criteria with its own.” (alteration
in original) (internal quotation marks and citation omit-
ted)).
II.
We also conclude that Mr. Jones failed to demonstrate
that HRSA violated his USERRA rights when it did not
select him for the Public Health Advisor position. To
obtain relief under USERRA, Mr. Jones must demon-
strate by preponderant evidence that his prior military
service was a “substantial or motivating factor” in HRSA’s
adverse employment action. Sheehan v. Dep’t of the Navy,
240 F.3d 1009, 1013 (Fed. Cir. 2001). In the absence of
direct evidence, discriminatory motivation can be demon-
strated by circumstantial evidence. Id. at 1014. Relevant
factors include:
proximity in time between the employee’s military
activity and the adverse employment action, in-
consistencies between the proffered reason and
other actions of the employer, an employer’s ex-
6 JONES v. HHS
pressed hostility towards members protected by
the statute together with knowledge of the em-
ployee’s military activity, and disparate treatment
of certain employees compared to other employees
with similar work records or offenses.
Id. As the employee making the USERRA claim,
Mr. Jones bears the initial burden of proof. Id.We conclude that the Board did not err in finding that
Mr. Jones failed to point to any direct evidence that his
prior military service was a substantial or motivating
factor in HRSA’s decision to not select him for the Public
Health Advisor position. We also agree with the Board
that under the Sheehan factors, Mr. Jones failed to prove
by preponderant circumstantial evidence that his military
service or prior USERRA activity was a motivating factor
in HRSA’s non-selection decision.
As the Board correctly found, the record demonstrates
that Mr. Jones’s military service was completed forty-
seven years prior to HRSA’s selection decision, negating
the proximity and nexus between his military service and
HRSA’s adverse employment action. We see no reason to
disturb the Board’s determination that HRSA’s subject
matter experts credibly testified that they did not consid-
er Mr. Jones’s military service or his prior USERRA
claims in their decision that he was not qualified for the
position. We also see no error in the Board’s determina-
tion that HRSA’s experts credibly testified that they were
unaware of any hostility toward military service members
within HHS. Moreover, we agree with the Board that the
fact that HRSA’s subject matter experts themselves were
active duty service members in the Commissioned Corps
of the Public Health Service further militates against the
finding of any animus toward veterans.
Repeating arguments made in his prior appeals,
Mr. Jones alleges systemic discrimination toward veter-
ans in HHS, including discriminatory remarks made
JONES v. HHS 7
toward him and other veterans, targeted delays in render-
ing Board decisions, low hiring rates of veterans, and
HHS’s continuing refusal to hire him. As we have ex-
plained before, these arguments are not tied to HRSA’s
hiring decision in this case. To prevail in this case,
Mr. Jones must demonstrate by direct or circumstantial
evidence that HRSA decided to not select him for the
Public Health Advisor position based on his military
service or his prior USERRA activity. We conclude that
the Board did not err in finding that Mr. Jones failed to
do so here, and hold that the Board’s decision is supported
by substantial evidence.
CONCLUSION
We have considered Mr. Jones’s remaining arguments
and find them unpersuasive. Because we hold that the
Board’s decision is supported by substantial evidence, we
affirm.
AFFIRMED
COSTS
No costs.