Jones v. Department of Health & Human Services

NOTE: This disposition is nonprecedential.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.
______________________
2013-3114
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DE3330110370-I-1 and DE3330110380-I-1.
______________________
Decided: November 7, 2013
______________________
JOHN PAUL JONES, III, of Albuquerque, New Mexico,
pro se.
MEEN GEU OH, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. On the brief
were STUART F. DELERY, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KIRK T. MANHARDT,
Assistant Director. Of counsel on the brief was ROBERT E.
NERTHLING, II, Assistant Regional counsel, Department of
2 JONES v. HHS
Health and Human Services, Office of General Counsel, of
Atlanta, Georgia.
______________________
Before MOORE, CLEVENGER, and REYNA, Circuit
Judges.
PER CURIAM.
Petitioner John Paul Jones, III, appeals a final deci-
sion of the Merit Systems Protection Board (“Board”)
concluding that he was not entitled to corrective action for
a violation of his rights under the Veterans Employment
Opportunities Act of 1998 (“VEOA”). Jones v. Dep’t of
Health & Human Servs., No. DE-3330-11-0370-I-1
(M.S.P.B. Mar. 25, 2013) [hereinafter Final Decision.].
Mr. Jones also seeks an order from this Court that he be
given priority consideration for subsequent job applica-
tions. Pet. Br. 19. For the reasons set forth below, we
affirm the decision of the Board and deny his request for
prospective relief.
BACKGROUND
The Petitioner
Mr. Jones served on active duty in the U.S. Army
from March 25, 1968 to December 24, 1969 and partici-
pated in the Vietnam War as a Medical Corpsman. It is
not disputed that he is a preference eligible veteran under
the VEOA. Resp’t Br. 2.
Announcement 205
On February 5, 2010, the Department of Health and
Human Services (the “Agency”) issued the competitive
Vacancy Announcement HHS-CDC-D3-2010-0205 (“An-
nouncement 205”) for Public Health Advisor positions
within the Centers for Disease Control (“CDC”), a division
of the Agency. At the same time, the Agency issued Va-
cancy Announcements HHS-CDC-T3-2010-0156-NC
JONES v. HHS 3
(“Announcement 156-NC”) and HHS-CDC-T3-2010-0156-
MP (“Announcement 156-MP”), which were the noncom-
petitive and merit promotion counterparts to Announce-
ment 205.
Announcement 205 was a continuous announcement
that was left open until February 4, 2011. Its stated
purpose was to build “an inventory of qualified applicants
for Public Health Advisor positions” that “will be used to
fill immediate and future needs.” The announcement was
“for multiple locations and multiple grades,” and appli-
cants were required to “identify all locations and all
grades for which [they] desire consideration.”
Mr. Jones submitted an application in response to
Announcement 205 on January 2, 2011.
The Kazakhstan Position
On his application, Mr. Jones indicated that he want-
ed to be considered for a position in Kazakhstan.
When a position in that country became available, the
Agency looked to applicants responding to Announce-
ments 205, 156-NC, and 156-MP to form a combined
candidate pool for evaluation by a selection panel. A
Human Resources Specialist was tasked with retrieving
the Announcement 205 applicants, who were sorted by an
automated system into three categories: “Best Qualified,”
“Well Qualified,” and “Qualified.” For the Kazakhstan
position, the specialist was directed to review only the
applicants that fell into the “Best Qualified” category.
Because Mr. Jones was determined by the computer to be
in the “Well Qualified” category, his application was not
reviewed by the specialist on the first pass.
The specialist also reviewed the preference eligibility
of the applicants for the Kazakhstan position to deter-
mine if preferences may apply. The automated system
had given Mr. Jones a designation of “TP,” i.e., a “Tenta-
tive [Veteran’s] Preference.” However, the specialist
4 JONES v. HHS
erroneously superimposed “NV,” i.e., “Non-Veteran,” over
Mr. Jones’s “TP” designation. Mr. Jones was therefore
treated as if he had no preference at all, and his applica-
tion was never reviewed.
A certificate of eligibles consisting of 7 candidates,
without Mr. Jones, was created from the applicants
responding to Announcements 205, 156-NC, and 156-MP.
The Agency interviewed three of the candidates, but
elected to hire none.
On July 26, 2011, the Agency issued new competitive,
noncompetitive, and merit promotion vacancy announce-
ments for Public Health Advisor positions. The Kazakh-
stan position was ultimately filled by an applicant
responding to one of these new announcements on No-
vember 10, 2011.
The Uganda Position
While Mr. Jones’s Announcement 205 application was
pending, a Public Health Advisor position in Uganda
became available. Because his application did not specifi-
cally identify Uganda as a potential duty station, Mr.
Jones was never considered during the selection process.
Proceedings at the Board
On May 31, 2011, Mr. Jones filed a VOEA appeal with
the Board alleging that his preference rights were violat-
ed in the selection processes for the Kazakhstan and
Uganda positions. With respect to the Uganda position,
Mr. Jones alleged that he did in fact select Uganda on his
Announcement 205 application.
On February 17, 2012, an administrative judge issued
an initial decision that granted in part and denied in part
Mr. Jones’s request for corrective action. Jones v. Dep’t of
Health & Human Servs., No. DE-3330-11-0370-I-1
(M.S.P.B. Feb. 17, 2012) [hereinafter Initial Decision.].
The judge concluded that Mr. Jones’s rights were violated
JONES v. HHS 5
in the selection process for the Kazakhstan position when
he was not placed at the top of the “Well Qualified” cate-
gory. As corrective action, the Agency was ordered to fully
reconstruct the process. Id. at 16. The judge so ordered
even though Mr. Jones was not one of the “Best Qualified”
Announcement 205 applicants and even though the
Agency elected not to fill the Kazakhstan position from
Announcements 205, 156-NC, or 156-MP. However, the
judge found that Mr. Jones failed to establish that he
actually did select Uganda on his application. Therefore,
the judge concluded that he lacked standing to challenge
the selection process for the Uganda position. Id. at 14.
The Agency subsequently filed a petition for review of
the grant of corrective action for the Kazakhstan position.
Mr. Jones in turn filed a cross petition for review of the
denial of corrective action for the Uganda position.
While the Board affirmed the finding that the Agency
violated his preference rights in the selection process for
the Kazakhstan position, it determined that Mr. Jones did
not suffer actual harm because the Agency did not fill the
position with an applicant responding to Announcements
205, 156-NC, or 156-MP. Final Decision at 7. And even if
Mr. Jones had been afforded his preference rights, they
would have given him no benefit as he was not amongst
the “Best Qualified” applicants responding to Announce-
ment 205. The error in not identifying him as a veteran
with preference on the “Well Qualified” list was thus
deemed harmless. The Board consequently vacated the
order for corrective action. Id. at 11.
With regard to the Uganda position, the Board af-
firmed the finding that Mr. Jones did not actually apply
for the position. Id. at 10. It therefore also affirmed the
finding that Mr. Jones lacked standing to challenge the
selection process for the position. Id. at 19.
Mr. Jones timely filed his appeal of the Board’s final
decision. In addition, Mr. Jones seeks an order that he be
6 JONES v. HHS
given priority consideration for future job applications.
Pet. Br. 19. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Our review of a decision of the Board is circumscribed
by statute. We can set aside a Board decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
The Kazakhstan Position
As noted above, the Board agreed with the adminis-
trative judge that the Agency failed to respect Mr. Jones’s
VEOA rights by not designating him as a veteran with
preference when he was put onto the “Well Qualified” list
of Announcement 205 applicants. Final Decision at 7. Mr.
Jones challenges the Board’s rationale in finding the
violation harmless under the circumstances, characteriz-
ing it as “breathtakingly fallacious.” Pet. Br. 24. Mr.
Jones contends that the fact that the Agency did not
select anyone for the Kazakhstan position is irrelevant, as
the Agency cannot show that it would not have selected
him had he been considered. According to Mr. Jones’s
theory, the harm he suffered is the failure to have him
included within the group considered for the position.
The problem with Mr. Jones’s challenge to the Board’s
rationale is that, even if he had been properly designated
on the “Well Qualified” list, such a designation would not
have entitled him to consideration for the position. The
Agency followed common practice in aggregating appli-
cants responding to the three announcements in drawing
up the certificate of eligibles for the Kazakhstan position
[A30], and this court has upheld the practice of using
concurrent announcements to fill a single position. See
JONES v. HHS 7
Joseph v. Federal Trade Comm’n, 505 F.3d 1380, 1383-84
(Fed. Cir. 2007) (a veteran’s rights under the VEOA are
not violated by the agency’s decision to fill a position by
merit promotion procedures instead of through the com-
petitive process). As the Board reasoned, in this case, the
error in overlooking Mr. Jones’s veteran status caused
him no remediable harm. We also see no merit in Mr.
Jones’s contention that he was denied the right to com-
pete for the Kazakhstan position. When the Agency chose
to consider only those Announcement 205 applicants
rated as “Best Qualified,” Mr. Jones was properly elimi-
nated from the competition. The Board therefore did not
err in vacating the order for corrective action and reject-
ing Mr. Jones’s VEOA claim.
The Uganda Position
The Board correctly concluded that Mr. Jones did not
have standing to challenge the selection process for the
Uganda position. Id. at 10. As the administrative judge
found, the computer records did not show that Mr. Jones
applied for the position in Uganda. Initial Decision at 13.
While Mr. Jones blames the computer system for failing
to register his choice, the judge properly took into consid-
eration his inconsistent testimony about whether he
actually selected Uganda on his application. Id. The
finding that Mr. Jones lacked standing is supported by
the evidence.
Priority Consideration
As noted above, the Board correctly held that in the
circumstances of this case, Mr. Jones was not entitled to
reconstruction of the selection process for the Kazakhstan
position. In this court, Mr. Jones asks for additional relief,
namely that he be placed in “Priority Consideration” for
all subsequent job applications he might make. In his
brief, Mr. Jones points to the “Delegated Examining
Operations Handbook: A Guide for Federal Agency Exam-
ining Officers.” OFFICE OF PERSONNEL MGMT., DELEGATED
8 JONES v. HHS
EXAMINING OPERATIONS HANDBOOK (2007) [hereinafter
“DEO Handbook”]. The DEO Handbook defines a “priority
consideration” as “a special placement priority that is
given to an eligible who was previously denied considera-
tion due to an administrative error or a law or regulatory
violation.” Mr. Jones states that the Handbook entitles
him to priority consideration, and the Agency argues that
the Handbook actually denies Mr. Jones such a status.
Our review of the Handbook’s criteria for priority consid-
eration shows them to be complex.
Mr. Jones candidly admits that he was unaware of the
Handbook while his case was adjudicated by the Board,
and our review of the record before us does not show that
the Board was presented with or otherwise considered Mr.
Jones’s priority consideration issue based on the Hand-
book. Because the question was not considered by the
Board, we will not consider it for the first time here. See
Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1103 (Fed.
Cir. 2008) (declining to consider argument not presented
before the Board).
CONCLUSION
The final decision of the Board is therefore
AFFIRMED
COSTS
No costs.