NOTE: This disposit ion is nonprecedential.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 Li tigation Branch, Civil Division, United States Department of Just ice, 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 Admi nistration, of Baltimore, Maryland. Appealed from: Merit S ystems 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.NOTE: This disposition is nonprecedential.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.

DECI DED: May 9, 2008

Petition for review of the Merit Syst ems 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 (199 8) (codified in scatteredsections 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. Sep t. 21, 2007) (“Final Decision ”). We affirm

. DISCUSSION
I. Mr. Johnson, a preference eligible veteran, is presently employed as a public affairs specialist in the Baltim ore, Maryland office of the Of fice of the Inspector General of the Social Security Administration (“ agency”). Johnson v. Soc. Sec. Admin. , PH3443-07-0182-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 a ffairs 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 ap plications from all agency employees in the Baltimore, Mary land/Washington, D.C. area. Id. at 2–3. Mr. Johnson applied for the position, and the agency plac ed his name, along with the names of six other applicants, on a “bes t-qualified” list. Id. at 2. The agency interviewed three persons (not including Mr. Johnson) from th e list, and it ultimately promoted both Tracy Lynge and Valerie J. Wood, decid ing to promote two applicants rather than merely on e. Id.

Department of Labor (“DOL”), alleging that he was denied his rights as a preference In due course, Mr. Johnson filed a co mplaint under the VEOA with the

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, promot ion, transfer, reassignment, and other movement of competitiv e service employees.”).

2008-3069 2eligible veteran. Id. The DOL investigated the compla int 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. Ly nge to be promoted and that the agency’s actions in support of her applicat ion, including notifying her of the position’s availability while failing to notify him, demons trated 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 additiona l 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. Ly nge’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 wr itten record without a hearing, the AJ noted that Mr. Johnson could succeed on his cl aim only if he demonstrated bad faith in the selection process. Id. at 4. The AJ ultimately co ncluded 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-select ion of Ms. Lynge, alteration of position qualification factors to advant age Ms. Lynge, or prejudice arising from his not being notified of the promoti on’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 3failure 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 “arbit rary, capricious, an abuse of discretion, or otherwise not in accor dance with law”; “obtai ned 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 preferen ce eligible veter an “who alleges that an agency has violated . . . [his or her] rights under any statut e 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 . . . prov e 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 me thod 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 ar e not entitled to any preference when merit promotion procedures are used. See id. § 353.103(b). Mr.

2008-3069 4Johnson does not argue against the agency’s use of merit pr omotion 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 add itional points accorded to veterans’ applications outside of the merit promotion context and thereby increase the likelihood that Ms. Lynge woul d be promoted. Mr. Johnson po ints 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 posit ion,” which, he asserts, demonstrates that Mr. Lasher had pre-selected Ms. Lynge to f ill the position. Johnson Br. 4. Second, he asserts that Mr. Las her “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 ur ges that the agency c hose 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 t he taking of a depositi on of a witness by Mr. Johnson, (ii) in rejecting a motion to compel discovery in the form of the deposit ions of certain agency employees, and (iii) in rejecting a motion to co mpel discovery of an email message that Mr. Johnson contended was in the possession of the agency. He also contends that

2008-3069 5there were contradictions in the deposition testimony of various agency employees. He thus, in effect, challenges the credibility det erminations of the AJ on the written record.
III. Substantial evidence supports the AJ’s conclusion that the agency objectively selected merit promotion pr ocedures in good faith, wit hout any bias against Mr. Johnson, and that the agency pr operly applied those procedure s in selecting Ms. Lynge and Ms. Wood for promotion. Mr. Lasher, in explaining his decision to use merit promotion procedures, specific ally asserted that “I was confident that there was sufficient talent within the Agen cy 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 alleg edly prejudicial acts by the agency that supported an inference of bad faith. Kath y Buller, the agency’s selecting official, testified that Mr. Johns on’s application was “very poorly written.” Bu ller Dep. 29. Ms. Buller also explained how Mr. Lasher chose the three per sons who were ultimately interviewed, noting that Mr. Lasher “was impressed with the wr iting ability they demonstrated in their applicatio ns” and that “[t]hey all thr ee had a Social Security background, so they knew the So cial 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. Lashe r testified that he eliminated a rating factor related to “conduct[ing] meetings [and] mak[ing] present ations” and that he added a factor related

2008-3069 6to “the ability to prepare written materials or lead the preparation of written materials” because writing skills were particularly impo rtant to the position. Lasher Dep. 24–25. We also conclude that Mr. Johnson ha s 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 rela tive 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 allegati ons 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 depositi ons. Similarly, in denying Mr. Johnson’s motion to compel disco very of an email message, the AJ found “that the agency provided the re quested 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 cr edibility determinations is co ncerned, based upon the record

2008-3069 72008-3069 8 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.