N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DIANE KING , Petitioner

v.

DEPARTMENT OF VETERA NS AFFAIRS , Respondent

______________________
2014

- 3208

______________________ Petition for review of the Merit Systems Protection Board in No s . AT

- 0330

- 12

- 0737 -C- 1, AT

- 0330

- 12

- 0739 -C1, AT

- 0330

- 12

- 0741 -C- 1.

______________________ Decided: February 6, 2015

______________________
D IANE K ING , of Prattville, AL, pro se.

D AVID M ICHAEL K ERR , Commercial Litigation Branch, Civil Division, United States Department of Justice
, Washington, DC, for respondent. Also represented by J OYCE R. B RANDA , R OBERT E. K IRSCHMAN , J R ., A LLISON K IDD -M ILLER

.

______________________KING v. DVA 2

Before T ARANTO , C LEVENGER , and C HEN , Circuit Judges.
P ER C URIAM

. Petitioner Diane King is a preference eligible veteran who applied for three positions as a Medical Technologist with the Departme nt 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 reco nstruct its hiring decision in accordance with veterans’ prefer ence procedures

. King v. Dep’t of Veterans Affairs
, Nos . AT

- 0330

- 12

- 0737 -C-1, AT -0 330

- 12

- 0739 -C-1, AT

0330

- 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.
B ACKGROUND
I Ms. King is an honorably discharged veteran of the United States Air Force

. Parties do not disp ute that she is a “five

- point” preference eligible veteran under the Vete rans 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 C ourt affirmed. Id.K ING v. DVA 3

On M ay 16, 2011, Ms. King was removed from her p osi tion 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 Protec tion Act. The administrative judge dismissed, finding clear and convincing evidence that the agency would have removed for reasons of conduct her absent any protected w histleblowing , 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 a nnouncements for a total of five Medical Technologist positions at the G.V. Montgomery Veterans Administr ation Medical Center in Jackson, Mississippi , to be filled by competitive hiring

. Ms. King applied under each a nnouncement but was not hired . The Agency selected nonpreference eligible candidates as well as a different five

point 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 decision s granting her requests and ordering reconstruction

. King v. Dep’ t of Veterans Affairs , No. AT -03 30

- 12 -0737-I- 1 (M.S.P.B. Mar. 24, 2013) ; King v. Dep’t of Veterans Affairs , No. AT

- 0330

- 12 -0 739 -I- 1 (M.S.P.B. Mar. 24, 2013) ; King v. Dep’t of Veterans Affairs , No. AT

- 0330

- 12 -0 741 -I- 1 (M.S.P.B. Mar. 24, 2013) . T he administrative judge found that the Agency had failed to use either of the two met hods 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 reconstructKING v. DVA 4

each selection process in accordance with those requir ements

. 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 non

preference eligible candidate

. An accompanying mem orandum 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 Deci sion , slip op. at 2- 3. Ms. King petition ed the Board for enforcement of each of the three reconstruction order s. In each case, the administrative judge issued an initial decision denying her petition s

. King v. Dep’t of Veterans Affairs , No. AT

0330

- 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. AT

0330

- 12

- 0741 -C-1 (M.S.P.B. Nov. 15, 2013). Although the A gency had failed to use an ap proved selection meth od during the reconstruction s , 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 re sult of the agency’s error .” See, e.g.
, i d. at 4. Ms. King petitioned for review of these initial dec isions. 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 r eferred to the selecting official, who requested and receivedK ING 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 eviden ce shows that the agency would not have selected the appellant regar dless of which procedures it followed because of her poor employment record .” Id. at 3.
D ISCUSSION Our review of Board decisions is limited by statute. Except in circumstances not relevant here, we can set a Board decisions aside on ly if it is “ (1) arbitrary, capr icious, an abuse of discretion, or otherwise not in accor dance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3)

u nsu pported 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 conc lusion is supp orted by substantial evidence. During the reconstructions, the Agency’s selecting official re queste d permission to passKING v. DVA 6

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 Agen cy has this authority from the Office of Personnel Management, which “has delegated to agencies the authority to adjud icate objections to eligible s , including pass over requests ,” with e xceptions 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. § 731.20 2(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 ser iousness of her misconduct

— altering, copying, and remo vi ng 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

.K ING 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 eviden ce. Final Decision , slip op. at 3. The 2006 termination , even alone
, support s 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.
C ONCLUSION 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 petition s for enforcement of the reconstruction orders.
AFFIRMED
C OSTS
No costs.