                        NOTE: This disposition is nonprecedential.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                     NOTE: This disposition is nonprecedential.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
