John Paul Jones, III v. Department of Health and Human Services ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBERS
Appellant, DE-3330-15-0432-I-1
DE-3330-15-0490-I-1
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DATE: February 17, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Christina Patton Black, and Susan M. Andorfer, Esquire, Washington,
D.C., 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;
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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 administrative
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, 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 In these joined VEOA appeals, the appellant alleged that the agency’s
Substance Abuse and Mental Health Services Administration violated his
veterans’ preference rights when it failed to select him for a Supervisor Public
Health Advisor position it advertised under both merit promotion procedures and
its delegated examining authority. 2 Initial Appeal File (IAF), Tabs 1, 22, 26. The
administrative judge gave the appellant ample notice of his jurisdictional burden
and, after considering the parties’ respective submissions, she found jurisdiction
over the appeals and denied the appellant’s request for corrective action under
VEOA because the agency made no selection from the delegated examining
2
The appellant originally filed two separate appeals involving this position, Jones v.
Department of Health & Human Services, MSPB Docket No. DE-3330-15-0432-I-1,
regarding Vacancy Announcement HHS-SAMHSA-DE-15-1308151, which the agency
announced under its delegated examining authority, and Jones v. Department of Health
& Human Services, MSPB Docket No. DE-3330-15-0490-I-1 regarding Vacancy
Announcement No. HHS-SAMHSA-MP-15-1308130, which the agency announced
under merit promotion procedures. Citations to the initial appeal file in this decision
are to the initial appeal filed in MSPB Docket No. DE-3330-15-0432-I-1. After MSPB
Docket No. DE-3330-15-8490-I-1 was reassigned to her, the administrative judge
granted the agency’s motion to join the two appeals. Initial Appeal File (IAF),
Tabs 20, 22, 26.
3
announcement and found him not qualified for the position under the merit
promotion vacancy announcement. IAF, Tab 33, Initial Decision (ID).
¶3 In his timely filed petition for review, the appellant makes general
arguments about the recruitment and employment of veterans, Petition for Review
(PFR) File, Tab 1 at 4-12, 14-20, but none of his arguments demonstrate that the
administrative judge erred in denying the appellant’s request for corrective action
under VEOA in this instance. He challenges the agency’s consideration of his
experience, but other than generally questioning the agency’s characterization of
his background, he points to no specific evidence showing that the administrative
judge erred in her determination, or that he is actually qualified for the position at
issue. Id. at 12-13. The record reflects that he made the same argument in his
presentation below. IAF, Tab 27 at 12.
¶4 Under 5 U.S.C. § 3311(2), a preference eligible like the appellant is entitled
to credit for all experience material to the position for which examined, including
experience gained in religious, civic, welfare, service, and organizational
activities, regardless of whether he received pay therefor. Nevertheless, under
5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d), the Board’s role is limited to
determining whether the hiring agency improperly omitted, overlooked, or
excluded a portion of the appellant’s experiences or work history in assessing his
qualifications for the vacancy, and the Board will not reevaluate the weight that
the agency accorded these experiences in reaching its decision that the appellant
was not qualified for the position. Miller v. Federal Deposit Insurance
Corporation, 121 M.S.P.R. 88, ¶ 12 (2014).
¶5 As the administrative judge correctly noted, the appellant is entitled to have
the agency consider a broad range of experience in reviewing his application, but
the weight to which an agency accords any of that experience is not before the
Board in a VEOA appeal. ID at 6. The appellant fails to show that the agency
failed to consider any relevant portion of his experience or that the agency erred
in finding that he had “no experience developing or implementing collaborative
4
programs focused on funding and improving mental health delivery systems. ID
at 7-8; IAF, Tab 23 at 71. Accordingly, we deny the appellant’s petition
for review. 3
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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 U.S. 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 U.S. 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
3
The appellant also filed a motion for an interlocutory appeal in which he sought to
disqualify the administrative judge. IAF, Tab 32. The administrative judge denied the
appellant’s motion, IAF, Tab 35, the appellant does not challenge that action on review,
and we see no error in the administrative judge’s actions with regard to the adjudication
of these appeals.
5
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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems 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.