Jones v. Hhs , 703 F. App'x 977 ( 2017 )

NOTE: This disposition is nonprecedential.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
______________________
2017-1353
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DE-4324-15-0474-I-1, DE-4324-15-0499-I-1.
______________________
July 17, 2017
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
AARON WOODWARD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
2 JONES v. HHS
Before NEWMAN, O’MALLEY, and STOLL, Circuit Judges.
PER CURIAM.
John Paul Jones, III, petitions for review of a final de-
cision of the Merit Systems Protection Board. Mr. Jones
filed two appeals with the Board, alleging that the De-
partment of Health and Human Services (“HHS”) violated
the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”) when he was not selected
for the position of Lead Public Health Advisor. The Board
consolidated the appeals and denied his request for cor-
rective action. We affirm.
BACKGROUND
Mr. Jones is a Vietnam War veteran who applied
through two concurrent vacancy announcements for a
Lead Public Health Advisor position in the Substance
Abuse and Mental Health Services Administration within
HHS. The duties of the position included “serv[ing] as
Lead Public Health Advisor/Team Leader for a team
of . . . professional staff that are responsible for planning,
implementing and evaluating formula and discretionary
grant programs related to substance abuse use disorder
services and delivery systems” and “provid[ing] guidance
to . . . organizations concerning substance use disorder
services and related delivery systems.” J.A. 24, 30. The
vacancy notices stated that, to be eligible for the position,
the “[a]pplicants must possess one year of specialized
experience,” including “experience coordinating the devel-
opment, management and technical assistance of sub-
stance use disorder delivery systems as well as
integration of such systems within primary care.” J.A. 24,
30.
In his application for the position, Mr. Jones submit-
ted a resume detailing his healthcare and military experi-
ence and also referenced several prior Board appeals in
which he asserted USERRA violations. Mr. Jones’s
JONES v. HHS 3
application was reviewed by an HHS Human Resources
Specialist, Cynthia Rivera, and a subject matter expert,
John Campbell, both of whom determined that Mr. Jones
did not have the specialized experience in substance
abuse required for the position. Ultimately, HHS made
its selection for the position under the merit promotion
announcement, and Mr. Jones was not selected for the
position.
Mr. Jones appealed to the Board, requesting correc-
tive action and alleging that HHS violated his USERRA
rights by denying him employment due to his prior mili-
tary service and his prior USERRA claims. Prior to the
hearing, the Board issued orders requiring the parties to
submit material documentary evidence that was not in
the record relevant to the vacancy announcements. The
Board also indicated that irrelevant or extraneous evi-
dence would be summarily rejected and deleted. In its
rulings on prehearing submissions, the Board accepted
some but not all of Mr. Jones’s evidence, providing its
bases for rejection and providing guidance and timelines
for Mr. Jones to submit offers of proof to preserve his
objections to the rulings for appeal purposes. Mr. Jones
filed a motion for interlocutory appeal challenging the
Board’s rulings, which the Board denied as untimely.
Additionally, despite the Board’s repeated warnings about
his conduct, the Board found that Mr. Jones had engaged
in “contumacious” conduct before the Board, which war-
ranted termination of Mr. Jones’s hearing and converting
the appeals to a decision on written submissions.
J.A. 101–02.
In its Initial Decision, the Board denied Mr. Jones’s
request for corrective action. The Board found that “alt-
hough [Mr. Jones] has much experience in health care
administration, he failed to establish that he had the
specialized experience of working in the management and
delivery of substance abuse disorder delivery systems or
recovery support services . . . required for the Lead Public
4 JONES v. HHS
Health Advisor position.” J.A. 15. The Board found no
evidence in the record showing that HHS did not select
Mr. Jones due to his veteran status or due to his protected
activities under USERRA. Therefore, the Board held that
Mr. Jones failed to meet his burden in proving that his
prior military service or his previous USERRA claims
were a substantial or motivating factor in HHS’s decision
not to select him for the position.
Mr. Jones appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9). 1
DISCUSSION
In his petition, Mr. Jones argues that HHS discrimi-
nated against him by not selecting him based on his
veteran status and in retaliation for seeking redress
under USERRA. Mr. Jones also argues the Board abused
its discretion in its procedural and evidentiary rulings.
We find no error in the Board’s decisions.
The Board’s decision must be affirmed unless 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) (2014). Substantial evidence is
that which “a reasonable mind might accept as adequate
to support a conclusion.” See Gallagher v. Dep’t of the
1 Mr. Jones’s present appeal was docketed on De-
cember 13, 2016. The Board’s initial decision did not
become final until January 11, 2017 when Mr. Jones did
not file a petition for review before the Board. Although
not final at the time Mr. Jones filed his appeal, we retain
jurisdiction where, as here, the initial decision matures to
a final decision while the case is pending on appeal.
See Jones v. Dep’t of Health & Human Serv., 834 F.3d
1361, 1366 (Fed. Cir. 2016).
JONES v. HHS 5
Treasury, 274 F.3d 1331, 1336 (Fed. Cir. 2001) (quoting
Hogan v. Dep’t of the Navy, 218 F.3d 1361, 1364 (Fed. Cir.
2000)). Further, we do not disturb the Board’s credibility
determinations unless they are “inherently improbable or
discredited by undisputed fact.” Pope v. U.S. Postal Serv.,
114 F.3d 1144, 1149 (Fed. Cir. 1997). We will not over-
turn the Board’s discovery and evidentiary rulings “unless
an abuse of discretion is clear and is harmful.” McEnery
v. Merit Sys. Prot. Bd., 963 F.2d 1512, 1514 (Fed. Cir.
1992) (citation omitted).
USERRA prohibits discrimination in employment on
the basis of military service and adverse action taken in
retaliation for a veteran’s assertion of substantive rights
established by USERRA. See 38 U.S.C. § 4311 (2012);
Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1012 (Fed.
Cir. 2001). Under a USERRA discrimination claim, the
appellant bears the initial burden to show that his “mili-
tary status was at least a motivating or substantial factor
in the agency action.” Sheehan, 240 F.3d at 1014. This
can be met by either direct or circumstantial evidence,
including:
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-
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. (citation omitted). If the initial burden is met, the
burden shifts to the employer to prove “that the action
would have been taken despite the protected status.” Id.
Under a USERRA retaliation claim, the appellant
must first show that (1) he took an action protected by
USERRA, and (2) his protected action was a substantial
6 JONES v. HHS
or motivating factor in the adverse employment action
taken against him. See 38 U.S.C. § 4311(b), (c)(2); Hay-
den v. Dep’t of the Air Force, 812 F.3d 1351, 1362–63 (Fed.
Cir. 2016) (citing Sheehan, 240 F.3d at 1013). Similarly,
when the employee meets his initial burden, the employer
may only avoid liability by showing that it would have
taken the same action in the absence of the employee’s
protected action. See Hayden, 812 F.3d at 1363.
Here, the Board concluded that Mr. Jones failed to
meet his initial burden under either the USERRA dis-
crimination or retaliation claim. Specifically, the Board
found no evidence showing that HHS’s decision to make a
selection under the merit promotion announcement
instead of the delegated examining unit announcement
was based on Mr. Jones’s veteran status or his protected
activities. The Board also found that HHS did not violate
USERRA when it determined that under the merit pro-
motion announcement, Mr. Jones was not qualified for the
Lead Public Health Advisor position.
Substantial evidence supports the Board’s decision.
As the record shows, the vacancy announcements for the
Lead Public Health Advisor position specifically required
at least one year of specialized experience. The record
shows that Mr. Jones’s application was reviewed by a
Human Resources Specialist, Cynthia Rivera, and a
subject matter expert, John Campbell, both of whom
concluded that he lacked the requisite experience for the
position. By relying on this testimony, the Board implicit-
ly credited it, and we find no basis for disturbing the
Board’s credibility determination on appeal. See Pope,
114 F.3d at 1149. Moreover, Mr. Jones presents no evi-
dence to show that either Ms. Rivera or Mr. Campbell
expressed any hostility toward veterans or Mr. Jones
specifically based on his military service or his previous
USERRA claims. We agree with the Board that the
record is devoid of any evidence that Mr. Jones’s veteran
status or his protected USERRA activity were a motivat-
JONES v. HHS 7
ing factor in HHS’s decisions to hire from the merit pro-
motion announcement or in its decision not to select
Mr. Jones for the position. The record evidence merely
shows that HHS found Mr. Jones unqualified based on his
lack of requisite experience.
We also find no error in the Board’s procedural and
evidentiary rulings. Mr. Jones alleges that the Board
abused its discretion by, among other actions, “deleting all
[his] evidence from the efile system, denying him his right
to call any witness, and denying him his right to a hear-
ing under the bogus charge of ‘contumacy,’” Pet’r’s Br. 1,
and by the Board’s “targeted delay” in taking more than
six months to render its decision, id. at 6.
First, regarding exhibits allegedly being deleted and
witnesses denied, the Board rejected certain evidence as
duplicative and rejected other evidence as irrelevant. We
agree with the Board that some of Mr. Jones’s proffered
evidence, such as statistical evidence that HHS hires
fewer veterans than other federal agencies and the al-
leged employee emails involved in an unrelated matter,
which Mr. Jones argues demonstrates HHS’s “odious”
view toward veterans, are not relevant to HHS’s selection
decision in this case. This evidence does not rebut the
record evidence that Mr. Jones was unqualified for the
position.
We also conclude that the Board did not abuse its dis-
cretion in terminating Mr. Jones’s hearing. Under
5 C.F.R. § 1201.43(a), the Board may impose sanctions on
a party who fails to comply with the Board’s orders. See
5 C.F.R. § 1201.43(a) (“[t]he judge may impose sanctions
upon the parties as necessary to serve the ends of justice,”
including for “(a) [f]ailure to comply with an order”); see
also Baker v. Dep’t of Health & Human Serv., 912 F.2d
1448, 1457 (Fed. Cir. 1990). “Before imposing a sanction,
the [Board] shall provide appropriate prior warning, allow
a response . . . and document the reasons for any resulting
8 JONES v. HHS
sanction in the record.” 5 C.F.R. § 1201.43. Cancellation
of a hearing for contumacious conduct is also within the
Board’s discretion. See id. § 1201.43(e) (“A judge may
cancel a scheduled hearing, or suspend or terminate a
hearing in progress, for contumacious conduct.”). Here,
the Board provided written warnings in its Order and
Summary of Prehearing Conference, and oral warnings
throughout the proceeding. The Board finally cancelled
the hearings for Mr. Jones’s “rude and disrespectful
conduct which regularly escalate[d] from advocacy to
contumaciousness.” J.A. 101. We find no abuse of discre-
tion in the Board’s findings regarding Mr. Jones’s conduct
or its discretionary determination to cancel the hearing
based on that conduct.
As to the alleged “targeted delays,” the Board is not
required by statute or regulation to issue a decision
within a particular time period, and thus Mr. Jones’s
argument in this regard is without merit. See Jones,
834 F.3d at 1368 (citing 5 U.S.C. § 7701(b)(1) and 5 C.F.R.
§ 1201.111(a)).
Finally, we note that we have considered the argu-
ments and evidence raised in Mr. Jones’s Reply to Re-
spondent’s Brief and his Supplemental Brief. Generally,
Mr. Jones repeats his arguments, complaining that the
Board purposefully delayed rendering a decision, the
Board erred in its evidentiary rulings, and argues that
the Board has “a culture that discriminates against
veterans.” Pet’r’s Reply to Resp’t’s Br. 2, 9–12. Mr. Jones
also asserts that the Board is “a failed agency” and that
the Board, including its former Chair, supports veteran
discrimination. Pet’r’s Supp. Br. 1–2. We find these
arguments baseless. Even when considering the supple-
mental record, we find no evidence to support Mr. Jones’s
claim that HHS discriminated against him by not select-
ing him for the Lead Public Health Advisor position based
on his veteran status. Accordingly, we affirm the Board’s
decision.
JONES v. HHS 9
AFFIRMED
COSTS
No costs.