NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3069
DANNY R. JOHNSON,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
Danny R. Johnson, of Upper Marlboro, Maryland, pro se.
Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on the
brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Sandi C.
Archibald, Attorney, Office of the Chief Counsel to the Inspector General, Office of the
Inspector General, Social Security Administration, of Baltimore, Maryland.
Appealed from: Merit Systems Protection Board
.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3069
DANNY R. JOHNSON,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
DECIDED: May 9, 2008
Petition for review of the Merit Systems Protection Board in PH3443070182-I-1
Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and SCHALL, Circuit
Judge.
PER CURIAM.
DECISION
Danny R. Johnson petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that denied his claim under the Veterans Employment
Opportunities Act, Pub. L. No. 105-339, 112 Stat. 3182 (1998) (codified in scattered
sections of titles 2, 3, 5, and 31 of the U.S.C.) (“VEOA”). Johnson v. Soc. Sec. Admin.,
PH-3443-07-0182-I-1 (M.S.P.B. Sept. 21, 2007) (“Final Decision”). We affirm.
DISCUSSION
I.
Mr. Johnson, a preference eligible veteran, is presently employed as a public
affairs specialist in the Baltimore, Maryland office of the Office of the Inspector General
of the Social Security Administration (“agency”). Johnson v. Soc. Sec. Admin., PH-
3443-07-0182-I-1, slip op. at 2 (M.S.P.B. May 21, 2007) (“Initial Decision”). In his
present position, his rating on the General Schedule Pay Scale is GS-1035-13. Id.
On May 15, 2006, a position of public affairs specialist with a GS-1035-14 rating
became available. Id. The agency determined to fill the position through merit
promotion procedures, 1 and it decided to accept applications from all agency
employees in the Baltimore, Maryland/Washington, D.C. area. Id. at 2–3. Mr. Johnson
applied for the position, and the agency placed his name, along with the names of six
other applicants, on a “best-qualified” list. Id. at 2. The agency interviewed three
persons (not including Mr. Johnson) from the list, and it ultimately promoted both Tracy
Lynge and Valerie J. Wood, deciding to promote two applicants rather than merely one.
Id.
In due course, Mr. Johnson filed a complaint under the VEOA with the
Department of Labor (“DOL”), alleging that he was denied his rights as a preference
1
“Merit promotion procedures” is a term of art describing a hiring process
by which an agency opens a position only to those already employed by the agency.
Abell v. Dep’t of the Navy, 343 F.3d 1378, 1380 (Fed. Cir. 2003) (“Merit promotion
procedures govern the placement, promotion, transfer, reassignment, and other
movement of competitive service employees.”).
2008-3069 2
eligible veteran. Id. The DOL investigated the complaint and found it to be meritless.
Id.
Following DOL’s decision, Mr. Johnson appealed to the Board, alleging
deprivation of his rights under the VEOA. Id. at 3. Specifically, Mr. Johnson contended
that the agency had pre-selected Ms. Lynge to be promoted and that the agency’s
actions in support of her application, including notifying her of the position’s availability
while failing to notify him, demonstrated bias against him. Id. He alleged that the
agency, acting on that bias in favor of Ms. Lynge, chose merit promotion procedures in
order to prevent him from receiving additional points on his application and increase the
probability of Ms. Lynge’s receiving the promotion. Id. He also alleged that the
agency’s Deputy Chief Counsel for External Relations, Jonathan Lasher, changed the
rating factors for skills required to receive the promotion in order to have the factors
more closely match Ms. Lynge’s qualifications. Id.
The administrative judge (“AJ”) assigned to the case rejected Mr. Johnson’s
VEOA claim. Id. at 5. Deciding the case on the written record without a hearing, the AJ
noted that Mr. Johnson could succeed on his claim only if he demonstrated bad faith in
the selection process. Id. at 4. The AJ ultimately concluded that Mr. Johnson had not
proven such bad faith by a preponderance of the evidence, noting that he had not
produced any evidence demonstrating pre-selection of Ms. Lynge, alteration of position
qualification factors to advantage Ms. Lynge, or prejudice arising from his not being
notified of the promotion’s availability. Id. at 4–5. The Initial Decision became the final
decision of the Board when the Board denied Mr. Johnson’s petition for review for
2008-3069 3
failure to meet the criteria for review set forth at 5 C.F.R. §1201.115(d). Final Decision
at 1–2. This appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Our scope of review in
an appeal from a decision of the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”; “obtained without procedures required by law,
rule, or regulation having been followed”; or “unsupported by substantial evidence.” 5
U.S.C. § 7703(c) (2000); see Kewley v. Dep’t of Health & Human Servs., 153 F.3d
1357, 1361 (Fed. Cir. 1998).
The VEOA provides redress for a preference eligible veteran “who alleges that
an agency has violated . . . [his or her] rights under any statute or regulation relating to
veterans’ preference.” 5 U.S.C. §3330a(a)(1)(A). Before the Board, Mr. Johnson bore
the burden of proving his allegations by a preponderance of the evidence. Isabella v.
Dep’t of State, 106 M.S.P.R. 333, 345 (2007) (“To be entitled to relief under VEOA . . .
the appellant must . . . prove by preponderant evidence that the agency’s action violated
one or more of his statutory or regulatory veterans’ preference rights.”); Dale v. Dep’t of
Veterans Affairs, 102 M.S.P.R. 646, 651 (2006).
An agency has discretion to fill vacant positions by any authorized method, 5
C.F.R. § 330.101 (2007), and one such method is merit promotion, id. § 335.103. As
noted, merit promotion involves a hiring process whereby only preexisting agency
employees are permitted to apply for internal positions. Veterans are not entitled to any
preference when merit promotion procedures are used. See id. § 353.103(b). Mr.
2008-3069 4
Johnson does not argue against the agency’s use of merit promotion procedures per se.
Rather, he contends that he was deprived of his veterans’ preference rights when the
agency, acting on a bias in favor of Ms. Lynge’s application, chose merit promotion
procedures in order to ensure that he did not receive the additional points accorded to
veterans’ applications outside of the merit promotion context and thereby increase the
likelihood that Ms. Lynge would be promoted. Mr. Johnson points to certain allegedly
biased acts by the agency to demonstrate this point. First, he alleges that Mr. Lasher
“hoped that Ms. Lynge would apply for the position,” which, he asserts, demonstrates
that Mr. Lasher had pre-selected Ms. Lynge to fill the position. Johnson Br. 4. Second,
he asserts that Mr. Lasher “gave advance notice of the posting of the vacancy
announcement . . . to Lynge and Wood, the eventual selectees.” Id. (emphasis in
original). Thus, Mr. Johnson apparently urges that the agency chose merit promotion
procedures in bad faith. He asserts that “[t]he [Board] AJ failed to accurately apply [the
VEOA] in this case. If an Agency takes an action in Bad Faith to avoid the strictures of
VEOA, it can be found to have violated VEOA.” Id. at 5–6 (emphasis in original). Mr.
Johnson additionally urges that the agency misapplied merit promotion procedures,
alleging that the agency tailored the selection factors to match Ms. Lynge’s
qualifications.
Mr. Johnson also contends that the AJ abused his discretion (i) in granting a
protective order to prevent the taking of a deposition of a witness by Mr. Johnson, (ii) in
rejecting a motion to compel discovery in the form of the depositions of certain agency
employees, and (iii) in rejecting a motion to compel discovery of an email message that
Mr. Johnson contended was in the possession of the agency. He also contends that
2008-3069 5
there were contradictions in the deposition testimony of various agency employees. He
thus, in effect, challenges the credibility determinations of the AJ on the written record.
III.
Substantial evidence supports the AJ’s conclusion that the agency objectively
selected merit promotion procedures in good faith, without any bias against Mr.
Johnson, and that the agency properly applied those procedures in selecting Ms. Lynge
and Ms. Wood for promotion. Mr. Lasher, in explaining his decision to use merit
promotion procedures, specifically asserted that “I was confident that there was
sufficient talent within the Agency to post the position internal[ly] . . . only.” Lasher Decl.
1. Furthermore, substantial evidence supports the AJ’s conclusion that Mr. Johnson
failed to prove the existence of the allegedly prejudicial acts by the agency that
supported an inference of bad faith. Kathy Buller, the agency’s selecting official,
testified that Mr. Johnson’s application was “very poorly written.” Buller Dep. 29. Ms.
Buller also explained how Mr. Lasher chose the three persons who were ultimately
interviewed, noting that Mr. Lasher “was impressed with the writing ability they
demonstrated in their applications” and that “[t]hey all three had a Social Security
background, so they knew the Social Security programs.” Id. at 28. Finally, any
assistance Mr. Lasher provided Ms. Lynge and Ms. Wood in notifying them of the
position does not appear to have prejudiced the agency’s decision, for all applications,
including Mr. Johnson’s, were considered objectively.
Finally, the evidence does not suggest that the agency misapplied the merit
promotion procedures. Mr. Lasher testified that he eliminated a rating factor related to
“conduct[ing] meetings [and] mak[ing] presentations” and that he added a factor related
2008-3069 6
to “the ability to prepare written materials or lead the preparation of written materials”
because writing skills were particularly important to the position. Lasher Dep. 24–25.
We also conclude that Mr. Johnson has failed to demonstrate any abuse of
discretion in the AJ’s discovery rulings. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,
1378 (Fed. Cir. 1988) (“Procedural matters relative to discovery and evidentiary issues
fall within the sound discretion of the board and its officials. . . . This court will not
overturn the board on such matters unless an abuse of discretion is clear and is
harmful.”). Mr. Johnson’s conclusory allegations in his brief detailing various allegedly
improper decisions of the AJ regarding the scope of discovery fall far short of
demonstrating such an abuse of discretion. The AJ did not prevent Mr. Johnson from
taking discovery from the agency witnesses whom he wished to interview. Instead, the
challenged protective order merely precluded Mr. Johnson from taking oral depositions
but permitted written discovery from such witnesses. Mr. Johnson fails to demonstrate
how he was prejudiced by the AJ’s decision to disallow oral depositions. Similarly, in
denying Mr. Johnson’s motion to compel discovery of an email message, the AJ found
“that the agency provided the requested information in its possession and demonstrated
that it made a good faith effort to locate an e-mail message that may or may not have
existed at one time.” Johnson v. Soc. Sec. Admin., PH-3443-07-0182-I01, slip op. at 1
(M.S.P.B. Apr. 9, 2007). Mr. Johnson fails, on appeal, to demonstrate that the email
message was indeed available to the agency and that the AJ abused his discretion in
denying a motion to compel its production. Finally, as far as Mr. Johnson’s argument
that the AJ erred in his credibility determinations is concerned, based upon the record
2008-3069 7
before us, we see no reason to disturb the AJ’s findings based upon the various
depositions and declarations. 2
For the foregoing reasons, the final decision of the Board is affirmed.
No costs.
2
We have considered Mr. Johnson’s other contentions and have found
them to be without merit.
2008-3069 8