NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DIANE KING,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2014-3208

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. AT-0330-12-0737-C-1, AT-0330-12-0739-C1, AT-0330-12-0741-C-1.

______________________ 

Decided: February 6, 2015

______________________ 

 DIANE KING, of Prattville, AL, pro se. 

 DAVID MICHAEL KERR, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., ALLISON 

KIDD-MILLER. 

______________________ 
2 KING v. DVA

Before TARANTO, CLEVENGER, and CHEN, Circuit 

Judges.

PER CURIAM. 

Petitioner Diane King is a preference eligible veteran 

who applied for three positions as a Medical Technologist 

with the Department of Veterans Affairs (the “Agency”)

and was not hired. Ms. King appeals the final decision of 

the Merit Systems Protection Board (the “Board”) denying 

her petition for review of three initial Board decisions, 

each of which denied Ms. King’s petition for enforcement 

of a final Board order requiring that the Agency reconstruct its hiring decision in accordance with veterans’ 

preference procedures. King v. Dep’t of Veterans Affairs, 

Nos. AT-0330-12-0737-C-1, AT-0330-12-0739-C-1, AT0330-12-741-C-1 (M.S.P.B. Aug. 5, 2014) (Final Decision). 

For the reasons set forth below, we affirm the decision 

of the Board.

BACKGROUND

I 

Ms. King is an honorably discharged veteran of the 

United States Air Force. Parties do not dispute that she is 

a “five-point” preference eligible veteran under the Veterans Employment Opportunities Act of 1998 (“VEOA”). 

Ms. King has been previously terminated from federal 

employment twice. On October 18, 2006, she was removed 

from her position as a Medical Technologist at the Central 

Alabama Veterans Health Care System on charges of “(1) 

copying and removing confidential medical records, and 

(2) altering a patient's medical records a month after his 

death by eliminating a notation and adding a personal 

opinion regarding alleged specimen mishandling.” King v. 

Dep't of Veterans Affairs, 276 F. App'x 993, 994 (Fed. Cir. 

2008). The Board and this Court affirmed. Id.
KING v. DVA 3

On May 16, 2011, Ms. King was removed from her position as a Medical Technologist with the United States 

Army at Fort Stewart. Ms. King filed an action before the 

Board challenging the removal under the Whistleblower 

Protection Act. The administrative judge dismissed, 

finding clear and convincing evidence that the agency 

would have removed for reasons of conduct her absent any 

protected whistleblowing, and the Board affirmed. King v. 

Dep’t of the Army, No. AT-1221-12-0143-W-3 (M.S.P.B. 

Aug. 5, 2014). An appeal to this Court is pending. King v. 

Dep’t of the Army, No. 2015-3005 (Fed. Cir. filed Oct. 2, 

2014). 

II

In February 2012, the Agency posted three job announcements for a total of five Medical Technologist

positions at the G.V. Montgomery Veterans Administration Medical Center in Jackson, Mississippi, to be filled by 

competitive hiring. Ms. King applied under each announcement but was not hired. The Agency selected nonpreference eligible candidates as well as a different fivepoint veteran. 

Ms. King filed three VEOA appeals with the Board, 

one per job announcement, alleging that the Agency had 

violated her veterans’ preference rights and requesting 

that it reconstruct its selection processes. 

An administrative judge issued initial decisions granting her requests and ordering reconstruction. King v. 

Dep’t of Veterans Affairs, No. AT-0330-12-0737-I-1 

(M.S.P.B. Mar. 24, 2013); King v. Dep’t of Veterans Affairs, No. AT-0330-12-0739-I-1 (M.S.P.B. Mar. 24, 2013); 

King v. Dep’t of Veterans Affairs, No. AT-0330-12-0741-I-1 

(M.S.P.B. Mar. 24, 2013). The administrative judge found 

that the Agency had failed to use either of the two methods the VEOA allows for competitive positions—delegated 

examining, 5 U.S.C. §§ 3304-18, and category rating, 5 

U.S.C. § 3319—and ordered the Agency to reconstruct 
4 KING v. DVA

each selection process in accordance with those requirements. 

The Agency reconstructed the three processes and 

again did not select Ms. King. Her applications were

referred to the Agency’s selecting official, who formally 

requested permission to “pass over” Ms. King for reasons 

of conduct under 5 C.F.R. § 731 and select a nonpreference eligible candidate. An accompanying memorandum from the selecting official explains that Ms. King 

was “previously terminated from a federal facility” in 

2006 and 2011 and had “submitted evidence of a poor 

work history, showing a large time frame during which 

there is no evidence of employment seen.” The Agency’s 

Acting Chief of Human Resources approved the pass-over 

request, which resulted in Ms. King’s non-selection. Final 

Decision, slip op. at 2-3. 

Ms. King petitioned the Board for enforcement of each 

of the three reconstruction orders. In each case, the 

administrative judge issued an initial decision denying 

her petitions. King v. Dep’t of Veterans Affairs, No. AT0330-12-0737-C-1 (M.S.P.B. Nov. 15, 2013); King v. Dep’t 

of Veterans Affairs, No. AT-0330-12-0739-C-1 (M.S.P.B. 

Nov. 15, 2013); King v. Dep’t of Veterans Affairs, No. AT0330-12-0741-C-1 (M.S.P.B. Nov. 15, 2013). Although the 

Agency had failed to use an approved selection method 

during the reconstructions, the administrative judge 

found that no further reconstruction was warranted 

because the selecting official had reviewed Ms. King’s 

application regardless and she therefore “did not suffer 

any harm as a result of the agency’s error.” See, e.g., id. at 

4. 

Ms. King petitioned for review of these initial decisions. The Board joined her appeals together and affirmed

as to all three. Final Decision, slip op. at 2. The Board 

found that in each case, Ms. King’s application was referred to the selecting official, who requested and received 
KING v. DVA 5

permission to pass over Ms. King due to her disciplinary 

record and employment history. Id. at 2-3. It further 

concluded that the Agency had been properly delegated 

authority to make this decision as to veterans in Ms. 

King’s position. Id. (citing 5 C.F.R. § 332.406(a)). Therefore, although the Agency had failed to perform a proper 

reconstruction, the Board found as a matter of fact that 

its error was harmless because “the evidence shows that 

the agency would not have selected the appellant regardless of which procedures it followed because of her poor 

employment record.” Id. at 3. 

DISCUSSION

Our review of Board decisions is limited by statute. 

Except in circumstances not relevant here, we can set a 

Board decisions aside only if it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required 

by law, rule, or regulation having been followed; or (3) 

unsupported by substantial evidence.” 5 U.S.C. § 7703(c).

I 

On appeal, Ms. King contends that the Agency used 

an unapproved hiring method during the reconstructed 

selection processes. The Board has already ruled that this 

is so: “[W]e agree with the administrative judge that the 

agency did not perform a proper reconstruction in these 

cases.” Final Decision, slip op. at 3. The issue now is the 

Board’s further conclusion that Ms. King would not have 

been selected regardless of the faulty process she received. 

Id.; see also Marshall v. Dep't of Health & Human Servs., 

587 F.3d 1310, 1316 (Fed. Cir. 2009) (reconstruction is a 

proper remedy for a VEOA violation where the agency 

would have selected the veteran absent the violation).

We conclude that the Board’s conclusion is supported 

by substantial evidence. During the reconstructions, the 

Agency’s selecting official requested permission to pass 
6 KING v. DVA

over Ms. King’s application, and received such permission 

from the Agency’s Chief of Human Resources. Final 

Decision, slip op. at 2-3. Had the Agency applied one of 

the approved selection procedures, Ms. King’s application 

would have at best been sent to the selecting official and 

passed over. 

Ms. King now challenges the pass-over determination.

She first contends that the Agency lacked authority to 

make the determination internally. The Agency has this 

authority from the Office of Personnel Management, 

which “has delegated to agencies the authority to adjudicate objections to eligibles, including pass over requests,” 

with exceptions not applicable here. 5 C.F.R. § 332.406(a). 

Ms. King also contends that her prior terminations 

and periods of unemployment were not adequate reasons 

to pass over her application. She further suggests that, 

because it is currently on appeal to this Court, her 2011 

termination from Fort Stewart is not evidence of poor 

work history. 

Pass-over decisions must be based on “a proper and 

adequate reason,” 5 C.F.R. § 332.406(b), including 

“[m]isconduct or negligence in employment,” 5 C.F.R. 

§ 731.202(b)(1). The Agency and the Board are not barred 

from considering past conduct that is subject to judicial 

review. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7 

(2001).

In 2006, Ms. King was terminated “due to the seriousness of her misconduct—altering, copying, and removing confidential medical records . . . .” King, 276 Fed. 

App’x. at 995-96 (affirming the Board’s finding). The 

Agency’s selecting official referred to Ms. King’s 2006 

termination, among other reasons, when requesting to 

pass over her candidacy for reasons of conduct under 5 

C.F.R. § 731.202. 
KING v. DVA 7

The Board’s finding that the Agency “would not have 

selected the appellant regardless of which procedures it 

followed because of her poor prior employment record” is 

supported by substantial evidence. Final Decision, slip op. 

at 3. The 2006 termination, even alone, supports the 

Board’s determination that due to the lawful exercise of 

the Agency’s pass-over authority, there is no further relief 

that Ms. King can be awarded for the earlier violations of 

her veterans’ preference rights.

CONCLUSION

For the reasons stated above, we affirm the Board’s 

final decision, which denied Ms. King’s petitions for 

review and affirmed the administrative judge’s initial 

decisions denying her petitions for enforcement of the 

reconstruction orders.

AFFIRMED

COSTS

No costs.