Jones v. Department of Health & Human Services
705 F. App'x 972
| Fed. Cir. | 2017Background
- John Paul Jones III, a Vietnam-era preference-eligible veteran, repeatedly applied to HHS/CDC vacancies and filed numerous prior VEOA/USERRA claims after non-selection.
- He applied to a CDC Public Health Advisor vacancy advertised at GS-12/GS-13 but applied only to the GS-13 level, which required one year of specialized experience equivalent to GS-12.
- Applicants completed a self-assessment questionnaire; agency scores place applicants into Best Qualified / Well Qualified / Qualified; veterans are placed first within each category.
- Jones self-rated as "expert" on almost all questionnaire items and initially was placed in Qualified due to an HR specialist’s reversed scoring rubric; a supervisory HR specialist (Kelly Mathis) rescored him into Best Qualified then reviewed full materials.
- Mathis concluded Jones lacked the required specialized GS-13 experience; Jones appealed to the MSPB, challenged Mathis’s credibility and moved to recuse the administrative judge who had earlier terminated a separate hearing for Jones’s contumacious conduct.
- The administrative judge credited Mathis’s testimony, denied relief on VEOA and USERRA claims, rejected recusal and other procedural complaints; the Federal Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VEOA rights were violated (failure to accord veteran credit) | Jones contends agency failed to credit his veteran experience and questions Mathis’s credibility in assessing qualifications | HHS/Mathis says Mathis considered Jones’s experience and lawfully concluded Jones lacked specialized GS-13 experience; any earlier scoring error was corrected and not discriminatory | Affirmed: no VEOA violation; Board credibility finding supported and no evidence agency failed to credit veteran experience |
| Whether non-selection violated USERRA (discrimination/retaliation) | Jones argues military status / prior protected activity motivated non-selection and attacks Mathis’s impartiality | Agency shows non-selection was based on lack of required qualifications; Mathis (also a veteran) had no hostility toward veterans and review was well-documented | Affirmed: USERRA claims fail because Jones was not qualified and agency showed adverse action would have occurred regardless of service |
| Procedural/evidentiary rulings (witnesses, alleged deletion of evidence) | Jones asserts evidence was deleted, denied witnesses, and relevant evidence was ignored | Administrative judge allowed Jones and Mathis to testify, excluded six witnesses as irrelevant, and record contains no proof of deletion; extra-record documents are irrelevant or post-date the record | Affirmed: no deletion shown; exclusion of irrelevant witnesses proper; administrative judge afforded fair hearing |
| Recusal and delay | Jones seeks recusal based on the judge’s prior termination in separate proceeding and complains of an eight-month decision delay | Agency and court note prior termination was justified for contumacious conduct; opinions formed in prior proceedings are not bias; no statutory deadline for decision | Affirmed: recusal not warranted; no proof of deep-seated bias; delay not dispositive |
Key Cases Cited
- Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (veteran entitled to credit for all valuable experience)
- Pope v. U.S. Postal Serv., 114 F.3d 1144 (Fed. Cir. 1997) (credibility determinations by administrative tribunals are largely unreviewable)
- Jones v. Dep’t of Health & Human Servs., 834 F.3d 1361 (Fed. Cir. 2016) (prior Jones decision recognizing limited review of credibility and qualification findings)
- Hayden v. Dep’t of Air Force, 812 F.3d 1351 (Fed. Cir. 2016) (USERRA requires showing military service was a substantial or motivating factor)
- Sheehan v. Dep’t of the Navy, 240 F.3d 1009 (Fed. Cir. 2001) (same USERRA causation framework)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial opinions formed in earlier proceedings do not alone establish disqualifying bias)
- Bieber v. Dep’t of Army, 287 F.3d 1358 (Fed. Cir. 2002) (recusal requires deep-seated antagonism making fair judgment impossible)