Jolley v. Department of Housing & Urban Development

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3255
WILLIAM B. JOLLEY,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
William B. Jolley, of Brunswick, Georgia, pro se.
Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director and Kirk T. Manhardt, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3255
WILLIAM B. JOLLEY,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in AT3443080162-I-1.
_________________________
DECIDED: November 18, 2008
_________________________
Before SCHALL, FRIEDMAN, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
William B. Jolley petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) which denied his claim for corrective action brought pursuant
to the Uniformed Services Employment and Reemployment Rights Act of 1994
(“USERRA”). Jolley v. Dep’t of Housing & Urban Dev., No. AT-3443-08-0162-I-1
(M.S.P.B. April 29, 2008). We affirm.
DISCUSSION
I.
Mr. Jolley is a preference eligible veteran currently employed by the Department
of Housing and Urban Development (“HUD”). In 2003, he brought a claim in the United
States District Court for the Southern District of Georgia based on his non-selection for
various HUD positions for which he applied from 1994 until the date of the complaint.
One of these was the position of Program Advisor, GS-0301-15. Mr. Jolley alleged that
HUD had violated the Age Discrimination in Employment Act, 29 U.S.C. § 621–634
(“ADEA”) by not selecting him for any of the positions. HUD settled the claim with Mr.
Jolley on October 4, 2004. Jolley v. Jackson, No. 03-CV-39, slip op. at 1 (Oct. 6, 2004)
(“Settlement Agreement”). Pursuant to the Settlement Agreement, HUD paid Mr. Jolley
$60,000 and appointed him to a position as an operations specialist, GS-0301-15. Id. at
2. In return, Mr. Jolley agreed to “waive[] and release[] all claims arising from any facts .
. . against [HUD] through the effective date of this Agreement.” Id.On November 26, 2007, Mr. Jolley brought an MSPB appeal, alleging that his
non-selection for various positions, including the Program Advisor position, violated
USERRA. For the positions at issue, HUD announced the vacancies via “dual
announcements.” In the dual announcement procedure, HUD advertises a position
vacancy through a competitive examination listing, which is typically open to applicants
from the general public, and also through a merit promotion listing, which is open to
applicants already employed by the agency or applicants from outside the agency who
have “status” in the competitive service. Veterans receive extra points in the
competitive process, thereby boosting their scores and making it more likely they will be
2008-3255 2
hired, but they do not receive such points in the merit promotion process. With respect
to the Program Advisor position, HUD made its dual announcement in 2002.
Subsequently, the competitive announcement vacancy was cancelled, and the position
was filled through the merit promotion announcement. Mr. Jolley argued before the
MSPB that the dual announcement system itself violates USERRA.
The administrative judge (“AJ”) to whom Mr. Jolley’s appeal was assigned ruled
that HUD’s practice of using dual vacancy announcements did not violate USERRA.
Jolley v. Dep’t of Housing & Urban Dev., No. AT-3443-08-0162-I-1, slip op. at 2
(M.S.P.B. March 25, 2008). Further, the AJ determined that the Settlement Agreement
precluded Mr. Jolley from raising claims which accrued prior to October 4, 2004, and
that a collective bargaining agreement (“CBA”) precluded some of the post-2004 claims.
Id. The AJ’s initial decision became the final decision of the Board on April 29, 2008,
after Mr. Jolley declined to petition the Board for review of the initial decision. This
appeal followed.
II.
We have jurisdiction over Mr. Jolley’s appeal pursuant to 28 U.S.C. § 1295(a)(9)
(2006). As stated in 5 U.S.C. § 7703(c), we must affirm a decision of the Board unless
we find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial evidence. See
Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). We
see no error in the decision of the Board in this case.
2008-3255 3
III.
Mr. Jolley argues that the use of dual announcements violates USERRA.
USERRA provides that a veteran “shall not be denied initial employment . . . on the
basis of [military service].” 38 U.S.C. § 4311(a) (2006). We have interpreted a violation
of USERRA to require “discriminatory animus”—in other words, a veteran must
establish he was treated in a harsher manner than were non-veterans. Sheehan v.
Dep’t of Navy, 240 F.3d 1009, 1014 n.3 (Fed. Cir. 2001). Mr. Jolley argues that dual
announcements violate USERRA because an agency can use the merit promotion list to
ignore the veteran’s preference and thereby manipulate the selection to avoid hiring a
veteran. He does not contend, however, that his non-selection was the result of bias
directed at him personally.
Although we have not specifically addressed the use of dual announcements in
this context, we have evaluated the propriety of using such announcements in light of
the Veterans Employment Opportunities Act, Pub. L. No. 105-339, 112 Stat. 3182(1998) (“VEOA”). As opposed to USERRA, which simply provides that veterans may
not be discriminated against, VEOA actually provides veterans a preference in hiring in
certain circumstances. It is through VEOA that veterans receive additional points in the
competitive hiring process.
In Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007), we
held that the use of dual vacancy announcements does not violate VEOA. Mr. Joseph
was a preference-eligible veteran who applied for a paralegal position through both the
merit promotion and the competitive processes. Joseph, 505 F.3d at 1382. Although he
was the top-ranked applicant on the competitive list (which reflected his veteran’s
2008-3255 4
preference), he was only one of the top four candidates on the merit promotion list. Id.Ultimately, the Commission hired someone who applied only via the merit promotion list.
Id. Mr. Joseph alleged that he was denied his veteran’s preference because the
Commission used the merit promotion list to make the hire. Id. at 1383. We held that
dual announcements do not run afoul of VEOA because “an agency has the discretion
to fill a vacant position by any authorized method. 5 C.F.R. § 330.101; Sherwood v.
Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 10 (2001)” and the merit promotion
list is such a method. Id. at 1384 (internal quotations omitted).
Likewise, such announcements do not violate USERRA. USERRA requires
equal treatment for veterans, while VEOA actually provides for a veterans preference in
some circumstances. See, e.g., 5 U.S.C. §§ 3309–3312 (enumerating some forms of
preferential treatment for veterans). The merit promotion list places nonveterans and
veterans on equal footing, because it does not add preference points to any application.
Thus, it cannot be said that veterans are treated “more harshly than non-veterans”
through the use of dual announcements. Farenbacher v. Dep’t of Navy, 85 M.S.P.R.
500, 510 (2000), aff’d sub nom Sheehan, 240 F.3d 1009. “The fact that [veterans] were
not treated better than non-veterans does not show discrimination.” Id. Mr. Jolley
alleged no specific facts indicating dual announcements were utilized in a discriminatory
way. Therefore, it was not error for the Board to deny corrective action.
Because we find dual announcements do not violate USERRA, we need not
address in depth whether the Settlement Agreement or the CBA preclude review of Mr.
Jolley’s USERRA claims. We note, briefly, however, that Mr. Jolley only specifically
alleges facts regarding the 2002 Program Advisor position. This non-selection was
2008-3255 5
covered by the Settlement Agreement, as it occurred before October 2004. We have
specifically acknowledged and enforced settlements of USERRA claims; thus, we find
unpersuasive Mr. Jolley’s argument that USERRA supersedes such contracts because
they “reduce, limit, or eliminate” USERRA rights. 38 U.S.C. § 4302. Although the
settlement does not mention USERRA, it does release “all claims arising from any facts
. . . through [2004].” Settlement Agreement at 2. We agree with HUD that the language
of the agreement indicates that HUD did not intend to subject itself to multiple
recoveries stemming from one non-selection. Therefore, Mr. Jolley’s contentions as to
the Program Advisor position are additionally barred by the Settlement Agreement.
IV.
Mr. Jolley also argues that the Board abused its discretion by failing to address
his motion to issue a subpoena requesting documents pertaining to all dual vacancy
announcements to which he responded from 1987 to the present. He also argues the
Board abused its discretion by failing to rule on his motion for sanctions, alleging that
HUD did not provide specifically requested documentation regarding dual
announcements to which he responded from 1994 to the present.
The government responds that Mr. Jolley cannot meet his high burden of proving
an abuse of discretion and substantial harm or prejudice from the Board’s management
of discovery. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)
(“This court will not overturn the board on such matters unless an abuse of discretion is
clear and is harmful.”). We agree. Mr. Jolley himself acknowledged that “the issue at
stake is a matter of interpretation of law and should not rest upon the individual personal
experiences or cases for validation.” Complaint at 11 (Nov. 21, 2007). Documentation
2008-3255 6
relating to specific dual announcements would not help Mr. Jolley prove that the dual
announcement procedure itself violates USERRA as a matter of law. Thus, Mr. Jolley
has not shown neither an abuse of discretion nor substantial harm or prejudice resulting
from the non-disclosure.
For the foregoing reasons, the final decision of the Board is affirmed.
2008-3255 7