Filed: Apr. 10, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN PAUL JONES, III, DOCKET NUMBERS Appellant, DE-3330-14-0413-I-1 DE-3330-14-0342-I-1 v. DE-3330-14-0344-I-1 DE-3330-14-0351-I-1 DEPARTMENT OF HEALTH AND DE-3330-14-0354-I-1 HUMAN SERVICES, DE-3330-14-0372-I-1 Agency. DATE: APRIL 10, 2015 THIS FINAL ORDER IS NO NPRECEDENTIAL 1 John Paul Jones, III, Albuquerque, New Mexico, pro se. Melinda V. McKinnon, Esquire, and Robert L. Thomas, Atlanta, Georgia, for the agency. Sara M. Klayton, Washin
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN PAUL JONES, III, DOCKET NUMBERS Appellant, DE-3330-14-0413-I-1 DE-3330-14-0342-I-1 v. DE-3330-14-0344-I-1 DE-3330-14-0351-I-1 DEPARTMENT OF HEALTH AND DE-3330-14-0354-I-1 HUMAN SERVICES, DE-3330-14-0372-I-1 Agency. DATE: APRIL 10, 2015 THIS FINAL ORDER IS NO NPRECEDENTIAL 1 John Paul Jones, III, Albuquerque, New Mexico, pro se. Melinda V. McKinnon, Esquire, and Robert L. Thomas, Atlanta, Georgia, for the agency. Sara M. Klayton, Washing..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBERS
Appellant, DE-3330-14-0413-I-1
DE-3330-14-0342-I-1
v. DE-3330-14-0344-I-1
DE-3330-14-0351-I-1
DEPARTMENT OF HEALTH AND DE-3330-14-0354-I-1
HUMAN SERVICES, DE-3330-14-0372-I-1
Agency.
DATE: APRIL 10, 2015
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Melinda V. McKinnon, Esquire, and Robert L. Thomas, Atlanta, Georgia,
for the agency.
Sara M. Klayton, 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 the appellant’s request for corrective action under the Veterans
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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; 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 As the parties are familiar with the facts of this case, we are only reciting
the background facts necessary to frame and decide the issues presented by the
appellant on review. The appellant filed six separate VEOA appeals alleging that
the Department of Health and Human Services (HHS), Centers for Disease
Control and Prevention (CDC), violated his veterans’ preference rights by failing
to select him for the Public Health Advisor positions advertised under the
following individual delegated examining announcements open to all United
States citizens: HHS-CDC-D2-14-1075176 (Vacancy ID 75176) (MSPB Docket
No. DE-3330-14-0413-I-1 (0413)), HHS-CDC-D3-14-1036324 (Vacancy ID
36324) (MSPB Docket No. DE-3330-14-0342-I-1 (0342)), HHS-SAMHSA-DE-
XX-XXXXXXX (Vacancy ID 34969) (MSPB Docket No. DE-3330-14-0344-I-1
(0344)), HHS-CDC-D4-14-1081377 (Vacancy ID 81377) (MSPB Docket No.
DE-3330-14-0351-I-1 (0351)), HHS-SAMHSA-DE-13-843240 (Vacancy ID
843240) (MSPB Docket No. DE-3330-14-0354-I-1 (0354)), HHS-SAMHSA-DE-
3
XX-XXXXXXX (Vacancy ID 05201) (MSPB Docket No. DE-3330-14-0372-I-1)
(0372)). 0413, Initial Appeal File (IAF), Tab 1; 0342, IAF, Tab 1; 0344, IAF,
Tab 1; 0351, IAF, Tab 1; 0354, IAF, Tab 1; 0372, IAF, Tab 1. The administrative
judge joined the appeals and found that the Board has jurisdiction over the joined
appeals, pursuant to 5 U.S.C. § 3330a(a)(1), with respect to the appellant’s
allegation that the agency failed to properly credit his experience in violation
of 5 U.S.C. § 3311, which he exhausted at the Department of Labor (DOL).
0413, IAF, Tab 8, Tab 31, Initial Decision (ID) at 1-2. The administrative judge
further found that he lacked jurisdiction over the appellant’s other claims because
he failed to exhaust those claims at DOL. 2 ID at 5.
¶3 Because the administrative judge found no genuine dispute of material fact,
the administrative judge denied the appellant’s request for corrective action
without holding a hearing. ID at 2. With respect to Vacancy IDs 1036324,
1048446, 1081377, 1105201, 1075176, the administrative judge found in
pertinent part that the agency’s human resources specialists considered all of the
appellant’s valuable experience in his application packages and determined that
he was not eligible because he lacked the required specialized experience set
forth in the vacancy announcements. ID at 6-9, 12-13. The administrative judge
further found that appellant did not allege that the agency improperly omitted,
overlooked, or excluded any part of his 30-page resume in making its
determination. ID at 6-9, 12-13. With respect to Vacancy ID 843240, the
administrative judge found that the agency accidentally reposted the
announcement in 2014 and cancelled it, without selecting any of the applicants,
2
The administrative judge found that he lacked jurisdiction over the appellant’s
allegations that: the agency failed to maintain a system that fairly tests the relative
capacity and fitness of the applicants sought in vio lation of 5 U.S.C. § 3304(a)(1); the
agency’s determination was age discrim ination and thereby violated an unspecific
veterans’ preference right recognized by VEOA; and the agency’s determination was
the product of violations of 5 U.S.C. § 2302(b)(6), and thereby violated an unspecified
veterans’ preference right recognized by VEOA. ID at 5.
4
because the agency originally posted the vacancy announcement and filled the
vacancy in 2013. ID at 11-12. Based on the foregoing, the administrative judge
found that the agency did not violate 5 U.S.C. § 3311 or any other law relating to
veterans’ preference. ID at 13.
¶4 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).
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 the
agency accorded these experiences in reaching its decision that the appellant was
not qualified for a given position of employment. Miller v. Federal Deposit
Insurance Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).
¶5 On review, the appellant argues that the administrative judge’s refusal to
hold a hearing severely and wrongfully compromised his ability to question the
legality of the agency’s actions with regard to Vacancy IDs 1036324, 1048446,
1081377, 1105201, 1075176; however he fails to identify a genuine dispute of
material fact requiring a hearing. Petition for Review (PFR) File, Tab 1 at 5.
Instead, in his petition for review, he primarily discusses his prior VEOA appeals,
the Board’s obligations to veterans, and a recent study published by the Board on
recruitment and open competition for federal jobs. Id. at 4-13.
¶6 Contrary to the appellant’s arguments on review, the administrative judge
properly decided this VEOA appeal on the merits without a hearing because the
record on the dispositive issues was fully developed on appeal, the appellant had
a full and fair opportunity to dispute the agency’s evidence, and there is no
genuine dispute of material fact. See Dean v. Consumer Product Safety
Commission, 108 M.S.P.R. 137, ¶ 10 (2008). VEOA only prohibits an agency
from denying a preference eligible the opportunity to compete; it does not provide
5
that veterans will be considered for positions for which they are not qualified.
See Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006). The
agency ultimately determined that the appellant was not qualified for the Public
Health Advisor positions announced under Vacancy IDs 1036324, 1048446,
1081377, 1105201, 1075176, and the appellant’s arguments on review do not
show that the agency violated one or more of his statutory or regulatory veterans’
preference rights by failing to select him for any of those positions. PFR File,
Tab 1; ID at 6-9, 12-13.
¶7 As explained in the agency’s submissions below and in the initial decision,
the agency accepted applications under the remaining vacancy announcement,
specifically Vacancy ID 843240, but the agency cancelled the 2014 vacancy
announcement after discovering that it was an accidental reposting of a vacancy
that was posted and filled in 2013. ID at 10-12; 0413, IAF, Tab 23, at 65-67;
0354, IAF, Tab 12 at 10. An agency does not violate a preference-eligible
veteran’s rights under VEOA when it cancels a vacancy announcement rather than
select him. Dean, 108 M.S.P.R. 137, 142, ¶ 11. The appellant disputes that the
agency reposted Vacancy ID 843240 due to an administrative error, and he argues
that the more likely scenario is that the agency hired a less qualified, non-veteran
friend of the hiring authority. PFR File, Tab 1 at 5, 14-16. Although the
appellant is skeptical about the veracity of the agency’s explanation for
cancelling Vacancy ID 843240, the agency provided a lawful reason for the
cancellation and the appellant offers no new evidence or argument on review
proving that the agency’s action violated a statute or regulation relating to
veterans’ preference laws. See Abell v. Department of the Navy, 343 F.3d 1378,
1384 (Fed. Cir. 2003) (finding that “[a]n agency may cancel a vacancy
announcement for any reason that is not contrary to law”). Moreover, the
appellant fails to identify any evidence to support his theory that the agency filled
the announced vacancy by hiring “a less qualified, non-veteran friend of the
hiring authority.” PFR File, Tab 1 at 14.
6
¶8 On review, the appellant challenges the administrative judge’s finding that
the Board lacks jurisdiction to consider the claims that he failed to exhaust at
DOL, and he attempts to reassert those claims on review. PFR File, Tab 1 at
17-19; ID at 5; see supra ¶ 2 n.2. Although the Board uses a liberal pleading
standard for allegations of violations of veterans’ preference in a VEOA appeal,
evidence of the exhaustion requirement is mandatory under the statute and is not
subject to the same liberal construction. Mims v. Social Security
Administration, 120 M.S.P.R. 213, ¶ 24 (2013). Because the appellant offers no
new proof that he satisfied the exhaustion requirement with respect to any
additional claims on review, the Board has no jurisdiction to consider them.
¶9 The appellant raises additional arguments on review that are not dispositive
and provide no basis for disturbing the initial decision denying his request for
corrective action under VEOA. We therefore deny the 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).
7
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
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.
