Jones v. Department of Health & Human Services
683 F. App'x 935
Fed. Cir.2017Background
- John Paul Jones III, a Vietnam veteran, applied for four HHS Public Health Advisor (Quarantine and Border Health) positions that required specific quarantine/communicable-disease experience.
- Jones lacked a medical degree and relevant formal education/experience in quarantine and bioterror response; he was not selected for any of the four vacancies.
- Jones petitioned the Merit Systems Protection Board (MSPB), alleging USERRA discrimination/retaliation (military service motive) and that HHS violated VEOA veteran-preference rules.
- The MSPB’s Administrative Judge found Jones qualified but determined the selecting official credibly explained legitimate, non-discriminatory reasons for choosing other candidates (urgency during the Ebola crisis; hires who could "hit the ground running").
- The Board affirmed the AJ: Jones failed to prove military service was a substantial/motivating factor and VEOA preferences did not apply because the appointments were made under the merit appointment process.
- Jones appealed to this court; the Federal Circuit affirmed the Board’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HHS violated USERRA by discriminating based on military service in non-selection | Jones: non-selection was motivated by his military service and prior litigation; evidence of anti-veteran emails and low veteran hires suggests bias | HHS: selections were based on legitimate qualifications/experience needs during Ebola crisis; selecting official credible and had recently hired veterans | Held: No USERRA violation — Jones failed to show military service was a substantial or motivating factor; substantial evidence supports non-discriminatory reasons |
| Whether HHS retaliated against Jones for prior suits | Jones: non-selection was retaliation for earlier challenges to HHS hiring | HHS: hiring decisions were based on qualifications and operational needs, not retaliation | Held: No retaliation — Board’s finding of no retaliatory motive supported by substantial evidence |
| Whether VEOA required veteran preference in these hires | Jones: selecting official ignored veterans' legal preference | HHS: positions filled via merit appointment process, where VEOA preference does not apply beyond opportunity to compete | Held: VEOA claim fails — veteran preference not applicable to merit appointments; Jones was allowed to compete |
| Standard of review and burden-shifting under USERRA | Jones: (implicit) Board misapplied burden or failed to infer discrimination from circumstantial evidence | HHS: met legitimate-reason defense after Jones failed initial burden to show military service motive | Held: Court applied Sheehan burden-shifting; Jones did not meet initial burden and employer’s legitimate-reason showing sufficed |
Key Cases Cited
- Sheehan v. Dep’t of Navy, 240 F.3d 1009 (Fed. Cir. 2001) (USERRA claimant bears initial burden to show military service was a substantial or motivating factor; employer may then show it would have acted for valid reason)
- McMillan v. Dep’t of Justice, 812 F.3d 1364 (Fed. Cir. 2016) (circumstantial evidence may suffice to infer improper motive when direct evidence is lacking)
- Joseph v. FTC, 505 F.3d 1380 (Fed. Cir. 2007) (veteran preferences apply to open-competitive examinations, not to merit appointment processes)