Filed: Apr. 10, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN PAUL JONES, III, DOCKET NUMBER Appellant, DE-3330-14-0595-I-1 DE-3330-14-0594-I-1 v. DE-3330-14-0596-I-1 DE-3330-14-0597-I-1 DEPARTMENT OF HEALTH AND HUMAN SERVICES, DATE: APRIL 10, 2015 Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 John Paul Jones, III, Albuquerque, New Mexico, pro se. Angela M. Atkinson, Kansas City, Missouri, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN PAUL JONES, III, DOCKET NUMBER Appellant, DE-3330-14-0595-I-1 DE-3330-14-0594-I-1 v. DE-3330-14-0596-I-1 DE-3330-14-0597-I-1 DEPARTMENT OF HEALTH AND HUMAN SERVICES, DATE: APRIL 10, 2015 Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 John Paul Jones, III, Albuquerque, New Mexico, pro se. Angela M. Atkinson, Kansas City, Missouri, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant h..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-14-0595-I-1
DE-3330-14-0594-I-1
v. DE-3330-14-0596-I-1
DE-3330-14-0597-I-1
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DATE: APRIL 10, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Angela M. Atkinson, Kansas City, Missouri, 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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, a 5-point (TP) preference-eligible veteran, timely filed four
appeals alleging that the agency violated his veterans’ preference rights when it
failed to select him for any of the GS-12/13 Public Health Advisor positions he
applied for under the following Delegated Examining (DE) Vacancy
Announcement Nos. HHS-OMH-DE-14-1078209 (MSPB Docket No. DE-3330-
14-0594-I-1), HHS-OMH-DE-14-1083087 (MSPB Docket No. DE-3330-14-0595-
I-1), HHS-OMH-DE-14-1078251 (MSPB Docket No. DE-3330-14-0596-I-1),
HHS-OMH-DE-14-1078325 (MSPB Docket No. DE-3330-14-0597-I-1). MSPB
Docket No. DE-3330-14-0594-I-1, Initial Appeal File (IAF 0594), Tab 1; MSPB
Docket No. DE-3330-14-0595-I-1, Initial Appeal File (IAF 0595), Tab 1; MSPB
Docket No. DE-3330-14-0596-I-1, Initial Appeal File (IAF 0596), Tab 1; MSPB
Docket No. DE-3330-14-0597-I-1, Initial Appeal File (IAF 0597), Tab 1. The
administrative judge joined the appeals for adjudication and found that the Board
has jurisdiction over the appeals because the appellant exhausted his
administrative remedies before the Department of Labor. IAF 0595, Tab 8,
Tab 16, Initial Decision (ID) at 3.
3
¶3 The following facts are undisputed unless otherwise noted. In each of the
DE Vacancy Announcements, the agency informed the applicants that the
vacancies were being announced concurrently under merit promotion procedures
and that applicants must apply separately for each announcement. IAF 0594,
Tab 10 at 4; IAF 0595, Tab 10 at 4; IAF 0596, Tab 9 at 8; IAF 0597, Tab 11 at 4.
The agency also informed the applicants that it would use the category rating
procedure to rank and select eligible candidates under the DE announcements and
to assign qualified candidates to the categories of “Best Qualified,” “Well
Qualified,” and “Qualified.” IAF 0594, Tab 10 at 6; IAF 0595, Tab 10 at 6; IAF
0596, Tab 9 at 10; IAF 0597, Tab 11 at 6. The agency explained that it would
apply veterans’ preference by placing preference eligibles at the top of their
assigned category and considering them before nonpreference eligibles in that
category. IAF 0596, Tab 9 at 10. The appellant applied only under the DE
announcements, and the agency placed him in the “Best Qualified” category with
the other preference-eligible veterans on the DE certificates referred to the
selecting officials. ID at 6-7; IAF 0594, Tab 10 at 33, 106; IAF 0595, Tab 10
at 33, 102; IAF 0596, Tab 9 at 44, 116; IAF 0597, Tab 11 at 29, 102. The agency
submitted documentation showing that it filled the vacancies by selecting
candidates from the certificates issued under the merit promotion procedures, for
which it is undisputed that the appellant did not apply. ID at 7; IAF 0594, Tab 10
at 51; IAF 0595, Tab 10 at 60; IAF 0596, Tab 9 at 60; IAF 0597, Tab 11 at 50.
¶4 The appellant argued on appeal that the agency violated his veterans’
preference rights by not crediting his military experience, by failing to grant him
an interview, and by failing to test the applicants fairly. IAF 0595, Tab 1 at 5.
The appellant also speculated that the agency screened him out based on unlawful
reasons, such as his age (over 60) and his lack of a personal relationship with the
hiring authority. Id.
¶5 The administrative judge issued a close of the record order, finding no
genuine dispute of material fact in the appeal, and provided the parties’ with the
4
opportunity to submit additional evidence and argument before the record closed
on December 19, 2014. IAF 0595, Tabs 11, 13. The appellant responded by
arguing that the agency has a pattern and practice of circumventing rights and
provided details from his prior VEOA appeals against the agency concerning
vacancy announcements not at issue in this appeal. IAF 0595, Tabs 14-15. The
appellant also argued that he is entitled to priority placement ahead of disabled
veterans. IAF 0595, Tab 14 at 24. The agency filed a motion to dismiss the
appeal, arguing that the appellant’s claims must fail as a matter of law because
the agency made its selection under the merit promotion process, for which the
appellant did not apply. IAF 0595, Tab 12 at 5.
¶6 Without holding the hearing requested by the appellant, the administrative
judge found that there was no dispute of material fact and issued an initial
decision denying the appellant’s request for corrective action under VEOA. ID
at 2. In reaching his decision, the administrative judge found that the agency
properly assigned the appellant his veterans’ preference in the competitive
examination process, and that the agency did not violate his veterans’ preference
rights by making its selections from the certificates issued under the current merit
promotion process. ID at 1, 6-7.
¶7 The appellant filed a petition for review asking the Board to remand the
appeal for a hearing so that the agency can explain its hiring decision and the
administrative judge can examine the merits of the agency’s actions. MSPB
Docket No. DE-3330-14-0595-I-1, Petition for Review (PFR) File, Tab 1 at 12,
Tab 4 at 1. In support of his request, the appellant reasserts the arguments he
raised on appeal that the agency has a pattern and practice of circumventing
veterans’ legal rights, and that the agency should be required to explain its failure
to interview and hire him for “at least 38 positions.” PFR File, Tab 1 at 6-9, 12,
Tab 4 at 4, 6; IAF 0595, Tab 14 at 23.
¶8 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
5
statutory or regulatory veterans’ preference rights. Dale v. Department of
Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). VEOA does not guaranteed the
preference-eligible appellant a position; the statute only affords him the right to
compete for the position. See Abell v. Department of the Navy, 92 M.S.P.R. 397,
400-401 (2002), aff’d, 343 F.3d 1378 (Fed. Cir. 2003). 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).
¶9 The appellant has not shown that the agency denied his right to compete
under the DE vacancy announcements for which he applied, considering that he
does not dispute that the agency placed him in the category of “Best Qualified”
preference-eligible candidates on the certificate referred to the selecting
officials. 2 IAF 0597, Tab 11 at 5, 12. Moreover, the appellant has not shown that
the agency violated his veterans’ preference rights by making its selections from
the merit promotion certificates issued under the concurrent merit promotion
announcements, for which he did not apply. An agency has the discretion to fill a
vacant position by any authorized method, and the Board has held that there is
nothing preventing an agency from soliciting applications from the public and
from merit promotion applicants simultaneously and filing the vacant position
from the merit promotion certificate. See Dean v. Consumer Product Safety
Commission, 108 M.S.P.R. 137, ¶ 11 (2008); see also Joseph v. Federal Trade
Commission, 505 F.3d 1380, 1384 (Fed. Cir. 2007) (finding that the agency did
2
Although the appellant argued that he is entitled to priority p lacement over disabled
veterans in the “Best Qualified” category because the Board found in a prior appeal
that the agency erroneously identified him as a nonveteran, his argument presents no
reason to disturb the initial decision in this appeal. PFR File, Tab 1 at 9; IAF 0595,
Tab 1 at 5; see Jones v. Department of Health & Human Services, MSPB Docket No.
DE-3330-12-0399-I-2, Final Order (Sept. 11, 2014) (nonprecedential order rejecting
the appellant’s argument in a VEOA appeal that he was entitled to priority
consideration based on the Board’s decision in Jones v. Department of Health &
Human Services, 119 M.S.P.R. 355, ¶¶ 12-13, aff’d, 544 F. App’x 976 (Fed. Cir.
2013)).
6
not violate VEOA by conducting “simultaneous parallel procedures under the
competitive examination and merit promotion processes to fill the same position”
and selecting someone other than the veteran under the merit promotion process).
¶10 The appellant’s remaining arguments on review are not dispositive and
present no basis for disturbing the initial decision. 3 We therefore deny the
appellant’s petition for review.
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.
3
The appellant also raised claims of age discrimination and prohibited personnel
practices. PFR File, Tab 1 at 8; IAF 0595, Tab 14 at 23. Because the Board has no
jurisdiction under VEOA to adjudicate claims of age discrimination and prohibited
personnel practices, and these claims are not otherwise appealable to the Board, the
Board cannot consider them in this appeal. See Goldberg v. Department of Homeland
Security, 99 M.S.P.R. 660, ¶ 11 (2005); see also Ruffin v. Department of the Treasury,
89 M.S.P.R. 396, ¶ 12 (2001).
7
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
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.
