John Paul Jones, III v. Department of Health and Human Services ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-14-0312-I-1
v.
DEPARTMENT OF HEALTH AND DATE: April 10, 2015
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Melinda V. McKinnon, 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;
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 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).
¶2 The appellant alleged that the agency violated his veterans’ preference
rights when it failed to select him for the open, continuous vacancy
announcement number HHS-CDC-OD-13-883025, Public Health Advisor, GS-
12/14, in various international locations. Initial Appeal File (IAF), Tab 1, Tab 6
at 56-63. Under an open, continuous vacancy announcement, the agency fills
vacancies at a particular grade level and location, as they become available. IAF,
Tab 19 at 17. The record reflects that the appellant exhausted his administrative
remedies before the Department of Labor and timely filed the instant appeal.
IAF, Tab 1 at 7-8.
¶3 Because he found no genuine dispute of material fact, the administrative
judge did not hold the appellant’s requested hearing, id. at 2, and instead
adjudicated the appeal on the written record, denying the appellant’s request for
corrective action under VEOA, IAF, Tab 22, Initial Decision (ID). In his
timely-filed petition for review, the appellant alleged that the administrative
judge was biased against him and improperly denied his right to a hearing.
Petition for Review (PFR) File, Tab 1 at 4-16. The appellant also claims that the
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administrative judge erroneously determined that he is not entitled to priority
placement in the selection process and includes with his petition for review a
copy of his October 2009 Basic Eligibility Rating Sheet for a different position.
Id. at 16-19. The agency responded to the appellant’s petition for review and the
appellant replied to the agency’s response. PFR File, Tabs 2, 4.
¶4 In pertinent part, to be entitled to relief under VEOA, the appellant must
prove by preponderant evidence that the agency’s selection violated one or more
of his statutory or regulatory veterans’ preference rights. Dale v. Department of
Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). By its terms, vacancy
announcement HHS-CDC-OD-13-883025 was open to all United States citizens
and the agency indicated therein that it had concurrently issued another vacancy
announcement, number HHS-CDC-OM-13-883005, for the same position under
merit promotion procedures. IAF, Tab 6 at 56. The agency specifically advised
applicants that they must apply separately for each announcement in order to be
considered under both procedures. Id. The record does not reflect that the
appellant applied for the concurrent internal merit promotion vacancy
announcement.
¶5 The record shows that the agency requested candidates for GS-14 Public
Health Advisor vacancies in Malawi, Mozambique, Nigeria, South Africa, and
Zambia. Id., Tab 6 at 41-55. The agency filled the positions in Nigeria, South
Africa, and Zambia using the concurrent merit promotion announcement, HHS-
CDC-OM-13-883005. ID at 7; see IAF, Tab 19 at 21. An agency has the
discretion to fill a vacant position by any authorized method; the Board’s
reviewing court has held that there is nothing to prevent an agency from soliciting
applications simultaneously from both public and merit promotion applicants and
filling the vacant position from the merit promotion certificate. See Joseph v.
Federal Trade Commission, 505 F.3d 1380, 1384 (Fed. Cir. 2007) (finding that
the agency did not violate VEOA by conducting “simultaneous parallel
procedures under the competitive examination and merit promotion processes to
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fill the same position” and selecting someone other than the veteran under the
merit promotion process); see also Dean v. Consumer Product Safety
Commission, 108 M.S.P.R. 137, ¶ 11 (2008).
¶6 The record also reflects that the agency did not fill the position in
Mozambique. ID at 7-8; IAF, Tab 19 at 21. There is no harm, and therefore no
VEOA violation, when, as here, an agency decides not to fill a particular vacancy.
Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶ 14, aff’d,
544 F. App’x 976 (Fed. Cir. 2013) (unpublished); cf., Scharein v. Department of
the Army, 91 M.S.P.R. 329, ¶ 10 (2002) (the agency is not required to fill a
particular vacancy and does not violate an applicant’s veterans’ preference rights
when it cancels a vacancy announcement and does not make a selection), aff’d,
No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
¶7 Of the selections at issue, the record reflects that agency filled only the
position in Malawi using the vacancy announcement for which the appellant
applied, HHS-CDC-OD-13-883025. IAF, Tab 19 at 21. However, the agency
found that the appellant lacked the requisite qualifications for the position. Id.
at 16-20. Under 5 C.F.R. § 302.302(d), when experience is a factor in
determining eligibility, as it is in the instant matter, an agency shall credit a
preference-eligible like the appellant 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 therefor.
¶8 Nevertheless, “VEOA does not enable veterans to be considered for
positions for which they are not qualified.” Lazaro v. Department of Veterans
Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (citing Ramsey v. Office of
Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000)). In the context of a VEOA
claim, the Board may examine whether an agency properly assessed an
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applicant’s qualifications as part of its analysis of whether the agency afforded
that individual, in accordance with relevant veterans’ preference statutes or
regulations, the right to compete for a position. Id. at 1321. In doing so, the
Board’s authority is limited to examining whether the hiring agency improperly
omitted, overlooked, or excluded any of the appellant’s experience in assessing
his or her qualifications for the position at issue, in order to ensure that the
agency considered and credited any experience material to the position.
Kirkendall v. Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009).
¶9 In his application for the position, the appellant indicated that GS-14 was
the lowest grade he would accept. IAF, Tab 6 at 4-5. The human relations
specialist responsible for making qualification determinations on the agency’s
behalf provided a sworn statement in which she described her comprehensive
review of the appellant’s application and explained her resulting determination
that the appellant lacked the requisite 1 year of specialized experience at or equal
to the GS-13 level and was therefore, as noted above, not qualified for the
position. ID at 3, IAF, Tab 19 at 16-20; see IAF, Tab 6 at 58. The administrative
judge found that the agency established by preponderant evidence that it did not
improperly omit, overlook, or exclude any of the appellant’s stated experiences or
work history in assessing his qualifications for the position. ID at 7. The
appellant identifies nothing on review to indicate that the administrative judge
erred in making this determination. Moreover, the Board may decide a VEOA
claim on the merits without a hearing when there is no genuine issue of material
fact and one party must prevail as a matter of law. Davis v. Department of
Defense, 105 M.S.P.R. 604, ¶ 12 (2007). For the reasons described above, we
agree with the administrative judge that there is no genuine issue of material fact
and find that the administrative judge properly denied the appellant’s request for
corrective action on the written record without holding a hearing.
¶10 Regarding the appellant’s claim that the administrative judge was biased
against him, in making such a claim, a party must overcome the presumption of
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honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). Further, an
administrative judge’s conduct during the course of a Board proceeding warrants
a new adjudication only if the administrative judge’s comments or actions
evidence “a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The
appellant filed a motion in the appeal below to disqualify the administrative judge
in which he explicitly explained why he feels that the administrative judge was
biased against him. IAF, Tab 13. In his ruling on the appellant’s motion, the
administrative judge provided a detailed explanation of why the appellant failed
to meet the above cited burden. IAF, Tab 17. The appellant repeats his
arguments on review. PFR File, Tab 1 at 6-9. We agree with the administrative
judge’s analysis and find that the appellant’s arguments on review do not show
that the administrative judge either erred or abused his discretion in this matter.
¶11 Lastly, we note that the appellant has identified no authority that would
provide him with eligibility for priority placement or require the agency, as the
appellant contends, to place him “ahead of virtually all other candidates for any
subsequent position.” PFR File, Tab 1 at 16-17. Regarding the document the
appellant submits on review, PFR File, Tab 1 at 19, under 5 C.F.R. § 1201.115,
the Board will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed
despite the party's due diligence. The appellant fails to make such a showing and
the document, which is dated long before the close of the record in this matter, is
not relevant to the issues in this appeal.
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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.