Jolley v. Hud

Opinion

Case: 22-1882 Document: 34 Page: 1 Filed: 08/11/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

WILLIAM B. JOLLEY, Petitioner

v.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent ______________________

2022-1882 ______________________

Petition for review of the Merit Systems Protection Board in Nos. AT-3330-17-0060-I-1, AT-4324-17-0235-I-1. ______________________

Decided: August 11, 2023 ______________________

WILLIAM B. JOLLEY, Brunswick, GA, pro se.

EBONIE I. BRANCH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by BRIAN M. BOYNTON, STEVEN J. GILLINGHAM, PATRICIA M. MCCARTHY. ______________________

Before LOURIE, PROST, and CUNNINGHAM, Circuit Judges. Case: 22-1882 Document: 34 Page: 2 Filed: 08/11/2023

PER CURIAM. William B. Jolley appeals a Merit Systems Protection Board (“Board”) decision affirming denial of his claims that he was (1) denied an opportunity to compete under the Vet- erans Equal Opportunities Act of 1998 (“VEOA”) and (2) discriminated against based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). We affirm. BACKGROUND Mr. Jolley is a preference-eligible veteran who retired from a Field Office Director (“FOD”) position at the Depart- ment of Housing and Urban Development (“HUD”) in Boise, Idaho. App’x 2. 1 HUD later placed dual announce- ments under both merit promotion procedures and HUD’s delegated examining authority for an FOD position in Charleston, West Virginia. App’x 2. The application re- quired at least one year of specialized experience with dis- aster preparedness and recovery at the GS-14 level. App’x 47, 50. After Mr. Jolley applied, a human resources spe- cialist determined that he was not qualified because his re- sumé did not demonstrate any experience with disaster preparedness or recovery. App’x 3. Mr. Jolley then submitted a Freedom of Information Act request to HUD. After reviewing this request, HUD communicated to Mr. Jolley that it had erroneously consid- ered him not qualified during the application process. App’x 3. HUD later determined, however, that it properly concluded Mr. Jolley was not qualified but offered him pri- ority consideration for any future FOD position in Charles- ton. App’x 3.

1 “App’x” refers to the appendix attached to the gov- ernment’s informal brief. Case: 22-1882 Document: 34 Page: 3 Filed: 08/11/2023

JOLLEY v. HUD 3

HUD narrowed its consideration to two candidates for the FOD position and selected one. App’x 56. Mr. Jolley filed a motion before the Board that discussed the qualifi- cations of the final two candidates. App’x 59. He acknowl- edged that one candidate demonstrated the requisite disaster recovery and preparedness experience, App’x 62 ¶ 6, but he argued that the selected candidate lacked it. Although the selected candidate’s resumé detailed her dis- aster preparedness and recovery qualifications: “Coordina- tion of agency and statewide policies for disaster recovery plans for proper administration of offices, data, and contin- uation of services in the event of such issues,” App’x 62 ¶ 7, Mr. Jolley argued that she was not qualified because disas- ter preparedness experience can come only after there is a disaster, App’x 62 ¶ 9. Mr. Jolley exhausted his agency remedies by submit- ting a VEOA complaint challenging his nonselection for the Charleston FOD position to the Department of Labor (“DOL”). App’x 3. After an investigation, DOL concluded that the evidence did not support his VEOA allegations, so Mr. Jolley appealed to the Board. Mr. Jolley raised a USERRA claim during the proceedings before the Admin- istrative Judge (“AJ”), so the AJ separately docketed a new case for his USERRA claim and treated the two separately. App’x 8–9. In the VEOA case, the AJ determined Mr. Jolley’s re- sumé reflected that he was not qualified for the FOD posi- tion. Jolley v. Dep’t of Hous. & Urban Dev., No. AT-330-17- 0060-I-1, 2017 WL 3980895 (M.S.P.B. Sept. 8, 2017). Mr. Jolley claimed he submitted a different resumé with his ap- plication to HUD than the one included in the agency rec- ord before the AJ. Compare App’x 53 (resumé HUD presented to the Board), with App’x 54 (resumé Mr. Jolley presented to the Board). The AJ determined neither re- sumé contained any information that would demonstrate experience with disaster preparedness and recovery, let alone at the GS-14 level. The AJ further found that Mr. Case: 22-1882 Document: 34 Page: 4 Filed: 08/11/2023

Jolley’s prior experience as an FOD did not automatically qualify him for the FOD position in Charleston because each FOD position may require different skillsets. Jolley, 2017 WL 3980895; see also App’x 57 ¶¶ 4–7. The AJ thus concluded that Mr. Jolley was not denied an opportunity to compete for the FOD position. Jolley, 2017 WL 3980895. The AJ also rejected Mr. Jolley’s argument that HUD vio- lated the VEOA by selecting an unqualified applicant, rea- soning that other applicants’ qualifications were irrelevant when Mr. Jolley himself was not qualified. Id. at n.7. In the USERRA case, the AJ determined that the Board lacked jurisdiction over the matter because Mr. Jol- ley did not make out a non-frivolous claim for relief. Spe- cifically, the AJ concluded that Mr. Jolley could not show that HUD discriminated against him due to his military service since HUD determined he was not qualified. Jolley v. Dep’t of Hous. & Urban Dev., No. AT-4324-17-0235-I-1, 2017 WL 2435161 (M.S.P.B. May 31, 2017). In the alter- native, the AJ determined that Mr. Jolley’s claim failed on the merits because his lack of qualifications meant he could not demonstrate that his military service was a substantial or motivating factor for the decision under the rule articu- lated in Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Jolley, 2017 WL 2435161, at n.5. On appeal to the Board, Mr. Jolley raised several argu- ments under the VEOA and USERRA. Under the VEOA, he challenged the determination he was not qualified, dis- puted the qualifications of the applicant who was selected, argued the AJ erred by not requiring the agency to timely provide the list of candidates for the Charleston FOD an- nouncements, argued that HUD violated 5 U.S.C. § 3317(a) by having a final applicant list that only included two can- didates, and argued that HUD violated 18 U.S.C. § 1917(2) by falsely reporting on the examination of the selected can- didate when reviewing her resumé. Under USERRA, Mr. Jolley challenged the conclusion that HUD did not discrim- inate against him, argued that HUD admitted it Case: 22-1882 Document: 34 Page: 5 Filed: 08/11/2023

JOLLEY v. HUD 5

discriminated against him through its letter stating he was erroneously deemed not qualified, argued that the use of dual announcements violated USERRA, and argued that the AJ erred by not requiring HUD to timely provide the full administrative record. The Board upheld the VEOA and USERRA determina- tions in a consolidated case. Jolley v. Dep’t of Hous. & Ur- ban Dev., Nos. AT-3330-17-0060-I-1, AT-4324-17-0235-I-1, 2022 WL 1597455 (M.S.P.B. May 20, 2022). First, the Board concluded that the right to compete does not pre- clude elimination of an unqualified candidate. Id. at *3. The Board agreed with the AJ’s findings that the Charles- ton FOD position required disaster preparedness and re- covery experience and that Mr. Jolley demonstrated no such experience. Id. Second, the Board agreed with the rejection of Mr. Jolley’s USERRA claim on the merits be- cause his lack of qualifications meant he could not demon- strate that his military service was a substantial or motivating factor in HUD’s determination that he was not qualified for the Charleston FOD position. Id. at *5. How- ever, the Board disagreed with the AJ’s dismissal of the USERRA claim for lack of jurisdiction, determining that Mr. Jolley had nonfrivolously alleged jurisdiction under USERRA. Id. The Board also concluded the dual an- nouncement did not violate USERRA and that HUD’s let- ter to Mr. Jolley stating he was erroneously deemed not qualified did not change the Board’s analysis. Id. The Board rejected several other challenges to the se- lection process, including challenges under 18 U.S.C. § 1917(2) and 5 U.S.C. § 3317(a), id. at *3 n.5, and chal- lenges to the agency’s alleged failure to include the full ad- ministrative record before the Board, id. at *4, *6 n.8. Mr. Jolley timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(9). Case: 22-1882 Document: 34 Page: 6 Filed: 08/11/2023

DISCUSSION This court must affirm a decision of the Board unless we find it “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained with- out procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brenner v. Dep’t of Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021) (quoting Shapiro v. Soc. Sec. Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015)). “The petitioner bears the burden of establishing error in the [Board’s] decision.” Jenkins v. MSPB, 911 F.3d 1370, 1373 (Fed. Cir. 2019) (quoting Harris v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998)). On appeal to this court, Mr. Jolley makes three classes of arguments. First, he challenges the denial of his VEOA claim. Second, he challenges the denial of his USERRA claim. Third, he asserts the Board committed several mis- cellaneous legal and procedural errors. We address each in turn. A The VEOA requires that preference-eligible veterans be given an opportunity to compete for a position within the federal government. 5 U.S.C. § 3304(f)(1). The oppor- tunity to compete is largely synonymous with the oppor- tunity to apply for a job. Abell v. Dep’t of Navy, 343 F.3d 1378, 1383 (Fed. Cir. 2003). This opportunity is satisfied if a veteran is entitled to participate in an application on the same grounds as other candidates. Miller v. Fed. Deposit Ins. Corp., 818 F.3d 1357, 1360 (Fed. Cir. 2016). One im- portant criterion for participation under the VEOA is that the applicant must be qualified. Lazaro v. Dep’t of Veterans Affs., 666 F.3d 1316, 1319 (Fed. Cir. 2012). An unsuccess- ful application is thus not a denial of an opportunity to com- pete, so long as the application was considered on the same Case: 22-1882 Document: 34 Page: 7 Filed: 08/11/2023

JOLLEY v. HUD 7

grounds as other candidates. Joseph v. FTC, 505 F.3d 1380, 1384 (Fed. Cir. 2007). Mr. Jolley first challenges the Board’s affirmance of the AJ’s determination that he was not qualified for the posi- tion. We discern no error. Mr. Jolley argues legal error because USERRA, not the VEOA, provides the proper def- inition of qualified. USERRA defines “qualified” as “having the ability to perform the essential tasks of the position.” 38 U.S.C. § 4303(9). Even if the USERRA definition ap- plied, we see no difference between that standard and the one applied by the Board, so we decline to disturb its ruling on that basis. Moreover, the Board relied on substantial evidence in determining Mr. Jolley was not qualified. Nei- ther resumé submitted before the Board contains any in- formation demonstrating experience with disaster preparedness or recovery. App’x 53–54. We also affirm the Board’s rejection of Mr. Jolley’s ar- gument that HUD violated the VEOA by selecting a candi- date he deemed unqualified. Specifically, Mr. Jolley has not demonstrated how his criticism of the selected candi- date’s qualifications renders the Board’s conclusion that he was unqualified as lacking substantial evidence. And “the VEOA does not enable veterans to be considered for posi- tions for which they are not qualified.” Lazaro, 666 F.3d at 1319 (citing Ramsey v. OPM, 87 M.S.P.R. 98, ¶ 9 (2000)). We additionally conclude that the Board did not err by denying Mr. Jolley’s challenge to the opportunity to com- pete under 5 U.S.C. § 3317(a). 2 Since he is not qualified for

2 Section 3317(a) requires “[t]he Office of Personnel Management” to “certify enough names from the top of the appropriate register to permit a nominating or appointing authority who has requested a certificate of eligibles to con- sider at least three names for appointment to each vacancy in the competitive service.” Case: 22-1882 Document: 34 Page: 8 Filed: 08/11/2023

the FOD position, VEOA provisions like § 3317(a) do not apply. See Lazaro, 666 F.3d at 1319. Indeed, the VEOA states that subsection (f) (the basis for Mr. Jolley’s claim) “shall not be construed to confer an entitlement to a veter- ans’ preference that is not otherwise required by law.” 5 U.S.C. § 3304(f)(3). We thus affirm the Board on its re- jection of the VEOA claim. B USERRA prohibits discrimination in employment on the basis of military service. An employer violates USERRA if a person’s military service is a “motivating fac- tor” in the employer’s adverse action. 38 U.S.C. § 4311(c). An employee claiming a USERRA violation must make an initial showing by a preponderance of the evidence that the employee’s military service was “a substantial or motivat- ing factor” in the employment action. Sheehan, 240 F.3d at 1013. If this requirement is met, the employer then has to show by a preponderance of the evidence that it would have “taken the adverse action anyway, for a valid reason” to defeat the USERRA action. Id. at 1014. The Board did not err by affirming the AJ’s rejection of Mr. Jolley’s USERRA claim. The only evidence in the rec- ord provides substantial evidence for the Board’s conclu- sion that HUD rejected Mr. Jolley’s application because he lacked the necessary qualifications, not due to his military service. Mr. Jolley’s additional argument that HUD vio- lated USERRA by creating a dual posting for the FOD di- rector is without merit and is one we have previously rejected. See Joseph, 505 F.3d at 1384–85 (dual announce- ments do not violate the VEOA); see also Jolley v. Dep’t of Hous. & Urban Dev., 299 F. App’x 966, 968–69 (Fed. Cir. 2008) (extending Joseph to hold that dual announcements do not violate USERRA); Jolley v. Dep’t of Hous. & Urban Dev., 752 F. App’x 964, 967–68 (Fed. Cir 2018) (same). We affirm the Board’s rejection of the USERRA claim. Case: 22-1882 Document: 34 Page: 9 Filed: 08/11/2023

JOLLEY v. HUD 9

C The Board properly rejected Mr. Jolley’s claim that the AJ acted improperly by not requiring HUD to timely sub- mit the list of candidates for the FOD posting in the VEOA case and by not considering his rebuttal evidence. Mr. Jol- ley argues that HUD submitted the candidate list near the close of the record and thus that he should have had an opportunity to respond to the evidence under 5 C.F.R. § 1201.59(c)(2). The evidence he sought to submit related to the selected candidate’s alleged lack of qualifications. App’x 59–63. As discussed above, Mr. Jolley has not demonstrated how this evidence alters his lack of qualifi- cations. Thus, the Board did not abuse its discretion by not considering his rebuttal evidence. We further affirm the Board’s rejection of Mr. Jolley’s claim under 18 U.S.C. § 1917(2). 3 He alleged that HUD hired the selected candidate based on a political recommen- dation. The record lacked any evidence supporting this claim, so the Board relied on substantial evidence in reject- ing it. Mr. Jolley did not make his remaining arguments, in- cluding, for example, that HUD should have conducted a job analysis under 5 C.F.R. § 300.103 and that HUD must reorganize its field office under 42 U.S.C. § 3535(p), before the Board. We thus decline to consider them. 4

3 18 U.S.C. § 1917(2) prohibits the willful and cor- rupt false marking, grading, estimating, or reporting on the examination or proper standing of an individual exam- ined. 4 We also deny as baseless Mr. Jolley’s outstanding motion to show that the government committed fraud on the court. Amstar Corp. v. Envirotech Corp., 823 F.2d 1538, 1550 (Fed. Cir. 1987) (“Fraud on the court . . . is fraud which is directed to the judicial machinery itself . . . where Case: 22-1882 Document: 34 Page: 10 Filed: 08/11/2023

CONCLUSION We have considered Mr. Jolley’s remaining arguments and find them unpersuasive and/or unsupported. For the foregoing reasons, we affirm. AFFIRMED COSTS No costs.

the impartial functions of the court have been directly cor- rupted.” (quoting Bulloch v. United States, 721 F.2d 713, 718 (10th Cir. 1983)).