Filed: Sep. 15, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN PAUL JONES III, DOCKET NUMBERS Appellant, DE-3330-12-0338-I-2 DE-3330-12-0137-I-2 v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DATE: September 15, 2014 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 John Paul Jones III, Albuquerque, New Mexico, pro se. Robert E. Nerthling II, Esquire, and Murray Kampf, Atlanta, Georgia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN PAUL JONES III, DOCKET NUMBERS Appellant, DE-3330-12-0338-I-2 DE-3330-12-0137-I-2 v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DATE: September 15, 2014 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 John Paul Jones III, Albuquerque, New Mexico, pro se. Robert E. Nerthling II, Esquire, and Murray Kampf, Atlanta, Georgia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES III, DOCKET NUMBERS
Appellant, DE-3330-12-0338-I-2
DE-3330-12-0137-I-2
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DATE: September 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones III, Albuquerque, New Mexico, pro se.
Robert E. Nerthling II, Esquire, and Murray Kampf, Atlanta, Georgia, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 In March 2011, the agency issued concurrent competitive and merit
promotion vacancy announcements for a GS-13/14/15 Management and
Operations Public Health Advisor (PHA) position (overseas) with the agency’s
Centers for Disease Control and Prevention (CDC). MSPB Docket No. DE-3330-
12-0338-I-1, Initial Appeal File (I-1 IAF), Tab 10 at 71-73. In July 2011, the
agency issued concurrent competitive and merit promotion vacancy
announcements for a GS-13/14/15 Technical PHA position (overseas) with the
CDC. I-1 IAF, Tab 9 at 73-78. The appellant, a preference-eligible veteran,
applied for both types of PHA positions under the competitive vacancy
announcements for those positions, each of which was an open continuous
vacancy announcement. 2 I-1 IAF, Tab 9 at 54-71, Tab 10 at 54-69. The
2
The announcement number for the competitive vacancy announcement for the
Management and Operations PHA position was HHS-CDC-OD-11-432476
3
competitive vacancy announcement for the Management and Operations PHA
position was open from March 9, 2011, to March 8, 2012, and the competitive
vacancy announcement for the Technical PHA position was open from July 26,
2011, to March 12, 2012. I-1 IAF, Tab 9 at 73, Tab 10 at 71. The application
included a section in which applicants were to identify their job preferences by
checking boxes on the application form. I-1 IAF, Tab 9 at 56, Tab 10 at 56. The
appellant indicated a job preference for HIV/AIDS on his application for the
Management and Operations PHA position, but not on his application for the
Technical PHA position. I-1 IAF, Tab 9 at 56, Tab 10 at 56.
¶3 The agency issued nine job requests under the Technical PHA
announcements and six job requests under the Management and Operations PHA
announcements. I-1 IAF, Tab 43 at 23-110, Tab 44. The appellant was not
considered for two of the Technical PHA positions because only applicants who
had listed HIV/AIDS as a job preference were considered for those positions. See
MSPB Docket No. DE-3330-12-0137-I-1, Initial Appeal File (0137 I-1 IAF),
Tab 7 at 31.
¶4 For the thirteen remaining positions, the appellant’s application was
reviewed by one of three Human Resources (HR) Specialists: R.T.; T.A.; and
F.R. See MSPB Docket No. DE-3330-12-0338-I-2, Initial Appeal File (I-2 IAF),
Tab 5, Initial Decision (ID) at 3 (citing hearing testimony of the three HR
Specialists). He was rated not qualified for any of those positions because the
reviewing HR Specialist determined that he had not demonstrated the required
1 year of specialized experience at the grade level below that of the position
being filled. Id.; see, e.g., I-1 IAF, Tab 43 at 95. Therefore, the appellant’s name
was not listed on the certificates of eligibles generated under the competitive
announcements for the PHA positions and his application for those positions was
(Announcement 476). I-1 IAF, Tab 10 at 71. The announcement number for the
competitive vacancy announcement for the Technical PHA position was HHS-CDC-OD-
11-432471 (Announcement 471). I-1 IAF, Tab 9 at 73.
4
not referred to the selecting officials for further consideration. See, e.g., I-1 IAF,
Tab 43 at 46.
¶5 After exhausting his administrative remedies with the Department of Labor,
the appellant filed two VEOA appeals with the Board challenging his
nonselection for the PHA positions under Announcements 471 and 476. 3 I-1 IAF,
Tab 1; 0137 I-1 IAF, Tab 1. The administrative judge joined the appeals for
adjudication. I-1 IAF, Tab 16.
¶6 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision denying the appellant’s request for corrective action
under VEOA. ID at 2, 10. The administrative judge found that the agency
properly did not consider the appellant for two of the Technical PHA positions
because he did not check the box indicating a job preference for HIV/AIDS on his
application for the Technical PHA position. ID at 6-7. The administrative judge
further found that the agency properly considered the appellant’s experience in
determining that he was not qualified for the remaining thirteen PHA positions
which it sought to fill during the period at issue. ID at 7-9. The administrative
judge also found that the appellant did not show that the agency improperly failed
to afford him priority consideration in the selection process for the PHA
positions. ID at 9-10.
¶7 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response to the petition for
review. PFR File, Tab 4.
3
As explained in the agency’s motion to consolidate and join the two appeals, one
appeal (MSPB Docket No. DE-3330-12-0137-I-1) covered the agency’s PHA requests
between August 2011, when the appellant submitted his application, and
December 2011; the other appeal (MSPB Docket No. DE-3330-12-0338-I-1) covered
the agency’s subsequent PHA requests under Announcements 476 and 471. I-1 IAF,
Tab 12 at 4.
5
ANALYSIS
The administrative judge correctly found that the agency properly considered the
appellant’s experience in determining that he was not qualified for the PHA
positions.
¶8 On review, the appellant reasserts his argument from below that the agency
did not properly credit his experience in determining that he was not qualified for
the PHA positions at issue in this appeal. PFR File, Tab 1 at 5; I-2 IAF, Tab 2
at 15-17. He asserts that his military experience in Vietnam provides “specialized
experience” that should qualify him for the PHA positions at the GS-14 level, at a
minimum. PFR File, Tab 1 at 5. He further asserts that the “main reason” he is
“most qualified” for the PHA positions is his “other 28 years of high level work
in public health, health communications, and health care administration, twenty
of which were in a developing country.” Id. (emphasis in original).
¶9 Under 5 C.F.R. § 302.302(d), when experience is a factor in determining
eligibility, an agency shall credit a preference-eligible 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.
¶10 The administrative judge found that, because the appellant did not hold a
position similar to the PHA position prior to entering the military, the key issue
regarding the agency’s compliance with this provision was whether the agency
properly considered all of the appellant’s “valuable experience” in finding that he
was not qualified for the PHA positions at issue. 4 ID at 6. The administrative
4
As the appellant notes in his petition for review, the initial decision cites the
testimony of C.J. and P.M., who were not involved in this appeal. PFR File, Tab 1
6
judge found that, while the announcements for both the Technical and the
Management and Operations PHA positions listed duties that required experience
with public health programs and grants/cooperative agreements and comparable
funding sources, neither the appellant’s military experience, nor his private sector
experience involved public health programs or grants/cooperative agreements. ID
at 7.
¶11 The administrative judge then considered the testimony of the three HR
Specialists who found that the appellant did not have the necessary 1 year of
specialized experience at the grade level below that of the position being filled.
ID at 7-8. In her hearing testimony, as summarized in the initial decision, F.R.
stated that the appellant’s private sector experience did not show work in or with
public health programs, but rather a great deal of work at public health facilities.
ID at 7. In particular, she explained that the portion of the appellant’s résumé in
which he claimed to have collaborated with others in the formation, development,
and implementation of various public health programs was not sufficiently
specific to show that he had such experience because he did not include details
explaining the degree of collaboration, such as the length of the projects and the
level of leadership involved. ID at 7-8 (citing hearing testimony of F.R.); see I-1
IAF, Tab 9 at 65. T.A. testified that the appellant’s résumé showed extensive
budget and administrative experience but did not show experience related to the
at 24; see ID at 6. Specifically, in the initial decision, the administrative judge states:
“I find that [C.J.] and [P.M.] [sic] appropriately considered the appellant’s military
experience and private-sector work history.” ID at 6. The administrative judge appears
to be referring to C.J. and P.M., who testified as agency witnesses during the hearing in
another of the appellant’s VEOA appeals against the agency, MSPB Docket No. DE-
3330-12-0399-I-2. This error provides no basis for disturbing the initial decision
because the administrative judge’s subsequent discussion of the hearing testimony
demonstrates that he properly based his determination that the agency appropriately
considered the appellant’s experience in determining that he was not qualified for the
relevant PHA positions on the hearing testimony of the three HR Specialists who
reviewed the appellant’s applications under Announcements 476 and 471. See ID
at 7-8.
7
PHA position, especially as a principal representative planning strategic
initiatives. ID at 8. R.T. testified that the appellant’s résumé did not show
experience analyzing public health problems, as it did not show that he was the
principal representative providing technical and administrative assistance
regarding public health programs. Id.
¶12 The administrative judge credited the testimony of the HR Specialists,
finding that their testimony was similar and compelling, and that each of them
testified straightforwardly. ID at 7-8. The administrative judge found that the
testimony of these witnesses shows that the agency complied with 5 C.F.R.
§ 302.302(d) by properly considering all of the appellant’s “valuable experience”
in determining that he was not qualified for the thirteen PHA positions the agency
sought to fill during the period at issue in these appeals. ID at 8. Therefore, the
administrative judge found, the appellant’s VEOA rights were not abridged or
violated. ID at 8.
¶13 The appellant challenges this finding on review, arguing that the
administrative judge erred in crediting the hearing testimony of the agency’s HR
Specialists. PFR File, Tab 1 at 24. In support of this argument, the appellant
asserts that T.A. had erroneously identified him as a nonveteran in the selection
process for another PHA position, and he contends that this error “ought to totally
eliminate her credibility.” Id. Regarding the other two HR Specialists, the
appellant states, “[T]hese women have never worked in public health, cannot even
define what several of the public health programs listed on my résumé are (!) and
in both cases could not even pronounce the name of one public health program,
all of which are identified and defined on the CDC’s own website.” Id.
(emphasis in original).
¶14 The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
8
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Sufficiently
sound reasons to overturn an administrative judge’s demeanor-based credibility
determinations include circumstances when the judge’s findings are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as a
whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).
The appellant’s bases for challenging the administrative judge’s credibility
determinations regarding the three HR Specialists (e.g., T.A.’s error in a previous
selection process, and the other HR Specialists’ alleged lack of experience in
public health) do not constitute sufficiently sound reasons for overturning those
determinations. Accordingly, we discern no reason to disturb the administrative
judge’s findings that the testimony of the agency’s HR Specialists shows that the
agency complied with 5 C.F.R. § 302.302(d) by properly considering all of the
appellant’s “valuable experience” in determining that he was not qualified for
thirteen of the PHA positions the agency sought to fill during the period at issue.
ID at 8.
The administrative judge properly found that the appellant did not show that the
agency improperly failed to afford him priority consideration in the selection
process for the PHA positions.
¶15 The appellant also asserts on review, as he did below, that the agency was
required to afford him priority consideration 5 for the PHA positions at issue in
this appeal because the Board found in one of his prior VEOA appeals that the
agency had failed to afford him veterans’ preference in the rating process for a
PHA position in Kazakhstan. PFR File, Tab 1 at 13; I-2 IAF, Tab 2 at 12-13; see
Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶¶ 12-13
(finding that the agency violated the appellant’s veterans’ preference rights by
erroneously identifying him as a “non-veteran” on the applicant listing report for
a PHA position), aff’d, 544 F. App’x 976 (Fed. Cir. 2014). The appellant asserts
5
Priority consideration is a special placement priority that is given to an eligible who
was previously denied consideration due to an administrative error or a law or
regulatory violation. See I-1 IAF, Tab 28 at 17.
9
that the agency’s error entitles him to “priority placement” for all subsequent
positions until he is hired. PFR File, Tab 1 at 13.
¶16 As the administrative judge explained, however, in Jones, the Board also
found that the appellant did not suffer any harm as a result of the agency’s failure
to afford him veterans’ preference because the agency did not select anyone to fill
that position under either the competitive vacancy announcement by which the
appellant applied for the position or a concurrent merit promotion announcement.
See ID at 9; Jones, 119 M.S.P.R. 355, ¶ 14. In addition, the Board found that,
even if the agency had made a selection for the Kazakhstan vacancy under either
announcement, the appellant would not have been selected for the position
because the only applicants under the competitive announcement whose names
appeared on the certificate of eligibles for that announcement were rated Best
Qualified on the applicant listing report for that announcement and the appellant
was not rated Best Qualified on that report. Jones, 119 M.S.P.R. 355, ¶ 15.
¶17 In light of the Board’s finding that the appellant would not have been
selected for the Kazakhstan vacancy even absent the agency’s failure to afford
him veterans’ preference in the rating process for that vacancy, the appellant was
not entitled to priority consideration in the selection process for the positions at
issue in this appeal. Moreover, as the administrative judge noted in the initial
decision, because the agency properly found that the appellant was not qualified
for the pertinent PHA positions, any failure to afford him priority consideration
would have been a harmless error. ID at 9; see Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991) (an agency error is harmful only where
the record shows that it was likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error). Therefore, the administrative judge correctly found that the appellant
did not show that the agency improperly failed to afford him priority
consideration in the selection process for the PHA positions in dispute. ID
at 9-10.
10
The appellant’s remaining arguments on review.
¶18 The appellant raises several additional arguments in his petition for review,
which do not provide a basis to disturb the initial decision. He contends that he is
entitled to “immediate interim relief” because the administrative judge violated
Board policy by failing to issue an initial decision within 120 days of the
acknowledgement order. PFR File, Tab 1 at 19-20; see 0338 I-1 IAF, Tab 2 at 3.
The appellant did not suffer any harm as a result of this alleged error, so his
argument does not establish a basis for review. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
¶19 The appellant also asserts that the administrative judge improperly failed to
address whether the CDC has the right: (1) to hire non-Americans for positions
for which American citizenship is a key requirement; and (2) to refuse to hire
anyone over the age of 60 or 62. PFR File, Tab 1 at 20-22. Regarding the first
issue, the appellant asserts that the agency improperly offered a British national a
PHA position in Chad without even interviewing an American veteran who was
rated Best Qualified on the certificate of eligible candidates for the position. Id.
at 20-21. As for the second issue, which the appellant characterizes as
“dispositive,” he contends that an agency witness testified during the hearing that
the CDC has a policy of not hiring candidates for PHA positions located overseas
who are over the age of 60 or 62. Id. at 21-22.
¶20 VEOA authorizes the Board to determine only whether an agency, in
connection with the action that is the subject of an appeal, has violated a statutory
or regulatory provision relating to veterans’ preference. Villamarzo v.
Environmental Protection Agency, 92 M.S.P.R. 159, ¶ 5 (2002). The citizenship
and age of the individuals selected for a position are not material to that issue
and, therefore, the administrative judge properly did not address these matters in
11
the initial decision. Moreover, to the extent that the appellant is attempting to
raise an age discrimination claim, it is well settled that the Board has no authority
to adjudicate discrimination claims in connection with VEOA appeals. See Ruffin
v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001).
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.
12
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.
