Jolley v. Hud

Opinion

Case: 22-2303 Document: 47 Page: 1 Filed: 12/07/2023

NOTE: This disposition is nonprecedential.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 ______________________

2022-2303 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-3330-18-0138-B-1. ______________________

Decided: December 7, 2023 ______________________

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

MATNEY ELIZABETH ROLFE, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR. ______________________

Before TARANTO, CHEN, and CUNNINGHAM, Circuit Judges. Case: 22-2303 Document: 47 Page: 2 Filed: 12/07/2023

PER CURIAM. William B. Jolley applied for two positions with the U.S. Department of Housing and Urban Development (HUD)—each one to serve as a field office director—but was not selected for either position. He then sought correc- tive action from the Merit Systems Protection Board, as- serting that HUD had violated the Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3300a. The Board denied his request. Jolley v. Department of Housing and Urban Development, No. AT-3330-18-0138-B-1, 2022 WL 3578093 (M.S.P.B. Aug. 19, 2022); SAppx. 307–24. 1 On Mr. Jolley’s appeal, we affirm the Board’s decision. I In February 2017, HUD issued two job-vacancy an- nouncements, each announcement addressing the same pair of job openings for field office director positions: one position in Louisville, Kentucky; the other position in Co- lumbia, South Carolina. SAppx. 167, 308. One of the an- nouncements (17-HUD-269) identified a merit-promotion process, and the other (17-HUD-270-P) identified an open competitive-examination process. See SAppx. 185–86, 196–98, 204; see also Joseph v. Federal Trade Commission, 505 F.3d 1380, 1381–82 (Fed. Cir. 2007) (describing gov- ernment hiring processes). Mr. Jolley, a preference-eligible veteran, was interviewed for both positions but was not se- lected. SAppx. 205, 308. Ultimately, both positions were filled via a merit-promotion process. SAppx. 205. In December 2017, Mr. Jolley filed an appeal with the Board under 5 U.S.C. § 3330a, alleging that HUD’s deci- sion not to hire him for either position violated the VEOA. SAppx. 1–10. In January 2018, the assigned administra- tive judge dismissed the appeal for lack of jurisdiction.

1 “SAppx.” refers to the supplemental appendix filed by HUD in this court with its brief as respondent. Case: 22-2303 Document: 47 Page: 3 Filed: 12/07/2023

JOLLEY v. HUD 3

SAppx. 101–14. Mr. Jolley sought review by the full Board, SAppx. 118–27, and in May 2022, the Board reversed the dismissal, holding that Mr. Jolley had met the require- ments to establish the Board’s jurisdiction to hear his VEOA appeal, and remanded the case for adjudication on the merits. SAppx. 325–29. On August 19, 2022, the administrative judge denied Mr. Jolley’s request for corrective action under the VEOA, SAppx. 307–24, relying on the written record because there were “no genuine issues of material fact in dispute,” SAppx. 307–08. The administrative judge ruled that Mr. Jolley failed to establish a VEOA violation because (1) he did not show that HUD violated any statutes or regulations re- lated to veterans’ preference and (2) he was allowed to com- pete for both positions as required under the merit- promotion process. SAppx. 308–16. That ruling became the final decision of the Board on September 23, 2022. SAppx. 316. Mr. Jolley timely filed his appeal on September 29, 2022, as permitted by 5 U.S.C. § 7703(b)(1)(A). We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). II We will affirm the Board’s decision unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired 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.’” McLaughlin v. Office of Personnel Manage- ment, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsu- shita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)). “The petitioner [in this court, Mr. Jolley] bears the burden of establishing error in the Board’s Case: 22-2303 Document: 47 Page: 4 Filed: 12/07/2023

decision.” Harris v. Department of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). In the present appeal, Mr. Jolley’s arguments fall into two classes. First, he asserts that the Board made several factual and legal errors related to the merits of his VEOA claims. Second, he asserts that the Board committed mis- cellaneous procedural errors during the proceedings. We address these arguments in turn. A We start by considering Mr. Jolley’s challenges related to the merits of the Board’s decision. “Federal agencies generally use two types of selection to fill vacancies: (1) the open ‘competitive examination’ process and (2) the ‘merit promotion’ process.’” Joseph, 505 F.3d at 1381. Under the competitive-examination process, applicants are given a numerical rating and placed on a list of qualified personnel for appointment. Id. (citing 5 C.F.R. § 2.1). The three high- est-rated applicants are then considered by the appointing official, who is generally required to select one of them. Id. (citing 5 U.S.C. § 3318(a)). Under the VEOA, veterans re- ceive special advantages in this process; for example, five or ten points are added to their scores, and they are ranked ahead of candidates with the same score. Id. at 1381–82 (first citing 5 U.S.C. § 3309; 5 C.F.R. § 337.101(b); and then citing 5 U.S.C. § 3313; 5 C.F.R. § 332.401). Under the merit-promotion process, veterans are not entitled to those hiring preferences (e.g., veterans’ point preferences). Id. at 1382. But veterans are guaranteed the opportunity to ap- ply and compete. Id. (citing 5 U.S.C. § 3304(f)(1)). A preference-eligible veteran, which Mr. Jolley undis- putedly is, can present either of two types of claims to the Board under the VEOA. The first is a claim that an agency violated his rights under a statute or regulation that re- lates to veterans’ preferences in federal employment. See 5 U.S.C. § 3330a(a)(1)(A). The second is a claim that an Case: 22-2303 Document: 47 Page: 5 Filed: 12/07/2023

JOLLEY v. HUD 5

agency denied him the opportunity to compete for a vacant position. See 5 U.S.C. §§ 3304(f)(1), 3330a(a)(1)(B). Here, Mr. Jolley appears to argue that it was error for the Board not to consider the amount of time that elapsed between the announcement of a field officer director posi- tion in Columbia and the agency’s eventual filling of that position. But he has not shown that this elapsed-time grievance gives him a VEOA claim of either of the two types. As to the first, Mr. Jolley has failed to identify a statute or regulation related to hiring timing that is rele- vant to veterans’ preference rights. As to the second, Mr. Jolley was undeniably given an opportunity to compete. He was listed on the Columbia position hiring certificates, see SAppx. 208–09, and was interviewed for the position, see SAppx. 205. See Joseph, 505 F.3d at 1383–84 (explaining that the petitioner was given a full opportunity to compete when he was included on the merit-promotion list and in- terviewed); Abell v. Department of the Navy, 343 F.3d 1378, 1383–85 (Fed. Cir. 2003). Mr. Jolley next alleges that the Board incorrectly stated that vacancy announcement 17-HUD-269, with its competitive-examination process, was “for Louisville” and that vacancy announcement 17-HUD-270-P, with its merit- promotion process, was “for Columbia,” SAppx. 308 n.1, 309, when in fact both vacancy announcements advertised both positions (in the two locations). But Mr. Jolley has not shown how the Board’s description produced an error in finding no VEOA claim. He has identified no statute or regulation that is violated by dual-position announce- ments. In a case in which a single position was the subject of two announcements, we found no violation and ex- plained that, when hiring, an agency has “the discretion to fill a vacant position by any authorized method.” Joseph, 505 F.3d at 1384–85 (citation omitted); see 5 C.F.R. § 330.102. Mr. Jolley has not shown a violation on the facts he describes: HUD accepted applications for the positions under both the competitive-examination and merit- Case: 22-2303 Document: 47 Page: 6 Filed: 12/07/2023

promotion processes and ultimately chose to fill both posi- tions under the merit-promotion procedure. Mr. Jolley also was clearly given an opportunity to compete for both posi- tions. Relatedly, Mr. Jolley offers no sound criticism of the Board’s decision when he points out that HUD did not uti- lize category rating in making its hiring decisions. Under the merit-promotion process, the process by which both the Louisville and Columbia positions were ultimately filled, see SAppx. 205, HUD was not required to use category rat- ing. Indeed, the VEOA expressly states that the “oppor- tunity to compete” provision which applies to the merit- promotion process, “shall not be construed to confer an en- titlement to veterans’ preference that is not otherwise re- quired by law.” 5 U.S.C. § 3304(f)(3) (emphasis added); see also Joseph, 505 F.3d at 1383 (“[A]n employee is not enti- tled to veterans’ preference in the merit promotion pro- cess.” (citation omitted)). Mr. Jolley also argues that he has been “adversely af- fected by HUD’s non-compliance with 42 U.S.C. [§] 3535(p).” Pet’r Inf. Br. at 12–13. The cited subsection relates to the reorganization of HUD field offices. The Board correctly found it irrelevant to Mr. Jolley’s VEOA claim. See SAppx. 309–10. Finally, Mr. Jolley appears to argue that the Board “ac- cepted argument” about the Uniformed Services Employ- ment and Reemployment Rights Act of 1994 (USERRA) and thus should have decided this case on USERRA grounds. But Mr. Jolley’s USERRA claims related to these field office director positions have never been part of this appeal, see SAppx. 6, and indeed have already been ad- dressed separately, by the Board and this court, see Jolley Case: 22-2303 Document: 47 Page: 7 Filed: 12/07/2023

JOLLEY v. HUD 7

v. Merit Systems Protection Board, 752 F. App’x 964 (Fed. Cir. 2018). 2 B We now turn to Mr. Jolley’s procedural arguments. First, Mr. Jolley argues that the Board erred in deciding his appeal without a hearing. We discern no error. A hear- ing is unnecessary if there is no genuine issue of fact that could alter the outcome. See 5 C.F.R. § 1208.23(b). We have recognized this familiar principle in the VEOA con- text before. Jones v. Department of Health and Human Services, 640 F. App’x 861, 864 (Fed. Cir. 2006). As dis- cussed above, Mr. Jolley’s legal arguments are unavailing, and he has failed to identify a factual dispute that could change the outcome of his case. Finally, Mr. Jolley argues that the administrative judge who decided his case is “according to the criteria in Lucia v. SEC, [138 S. Ct. 2044 (2018),] not constitutionally qualified.” Pet’r Inf. Br. at 13. That argument lacks merit. We have previously held that the Board’s administrative judges are not principal officers under the Appointments Clause. McIntosh v. Department of Defense, 53 F.4th 630, 638–41 (Fed. Cir. 2022). And if the Board’s administrative judges are inferior officers, the administrative judge here was properly appointed under the Appointments Clause—

2 For this reason, we also deny Mr. Jolley’s motion for reconsideration of our January 25, 2023 order directing him to pay the docketing fee or move to proceed in forma pauperis (if appropriate). Motion Regarding USERRA Fee Waiver, ECF No. 18; see Order, ECF No. 17; Order, ECF No. 20. With no USERRA claim here, Mr. Jolley is not en- titled to invoke the exemption from the docketing fee appli- cable to petitions for review of a Board decision where the underlying appeal at the Board involved a claim under USERRA. 38 U.S.C. §§ 4323(h), 4324; Fed. Cir. R. 52 note. Case: 22-2303 Document: 47 Page: 8 Filed: 12/07/2023

by the Board’s quorum as the “head[] of department[].” See id. at 641–42. While the Board lacked a quorum between January 7, 2017 and March 3, 2022, a reconstituted quorum of the Board, which qualifies as a “head[] of depart- ment[]” under the Appointments Clause, id. at 641, issued an order on March 4, 2022, ratifying prior appointments of administrative judges—including the administrative judge here. See U.S. Merit Systems Protection Board Ratifica- tion Order (Mar. 4, 2022), available at https://www.mspb.gov/foia/files/AJ_Ratification_Order_3- 4-2022.pdf. That ratification order was issued over two months before Mr. Jolley’s case was remanded for the ad- judication that is the subject of the present appeal. See SAppx. 325–26. III We have considered Mr. Jolley’s remaining arguments and find them unpersuasive. For the foregoing reasons, the decision of the Merit Systems Protection Board is af- firmed. The parties shall bear their own costs. AFFIRMED