Asatov v. Agency for International Development, 101613 FEDFED, 2013-3068

Docket Nº2013-3068
Opinion JudgePer Curiam.
Party NameRAKHMATULLA ASATOV, Petitioner, v. AGENCY FOR INTERNATIONAL DEVELOPMENT, Respondent.
AttorneyRakhmatulla Adatov, of Plainville, Connecticut, pro se. Cameron Cohick, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. D...
Judge PanelBefore Prost, Bryson, and Reyna, Circuit Judges.
Case DateOctober 16, 2013
CourtUnited States Courts of Appeals, Court of Appeals for the Federal Circuit

RAKHMATULLA ASATOV, Petitioner,

v.

AGENCY FOR INTERNATIONAL DEVELOPMENT, Respondent.

No. 2013-3068

United States Court of Appeals, Federal Circuit

October 16, 2013

This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. PH3330120145-I-1.

Rakhmatulla Adatov, of Plainville, Connecticut, pro se.

Cameron Cohick, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant Director.

Before Prost, Bryson, and Reyna, Circuit Judges.

Per Curiam.

Rakhmatulla Asatov seeks review of a final decision of the Merit Systems Protection Board ("Board") affirming an initial decision by an Administrative Judge ("AJ") denying his request for corrective action under the Veterans Employment Opportunities Act of 1998 ("VEOA"). Asatov v. Agency for Int'l Dev., PH-3330-12-0145-I-1, (M.S.P.B. May 14, 2012) ("AJ Op."); Asatov v. Agency for Int'l Dev., PH-330-12-0145-I-1 (M.S.P.B. Jan. 2, 2013) ("Board Op."). For the reasons set forth below, we affirm.

Background

In 2011, Mr. Asatov applied for a position as a Foreign Service Officer Program Economist with the U.S. Agency for International Development ("AID"). The announcement stated that the minimum qualifications required the position were: (1) a graduate level degree (master's or doctorate) in economics, agricultural economics, or public policy, or in a related field equivalent to a graduate economics program; and (2) successful completion of one or more years of graduate-level coursework in economics in each of the following fields: (a) microeconomic theory or applied microeconomics; (b) macroeconomic theory; and (c) statistics, econometrics, or quantitative methods.

Mr. Asatov applied to the position and submitted a report from the Educational Credential Evaluators, Inc. stating that the degree Mr. Asatov obtained in 1995 in Russia at the Moscow Institute of Management would be equivalent to a Bachelor's degree in Business Administration with a specialization in Urban Planning, and a Master's degree in Business Administration.

The company that maintains AID's online job application system initially gave Mr. Asatov's application a score of 94. Because Mr. Asatov is a preference-eligible veteran, AID added five points to his score, raising it to 99. The cutoff score for proceeding to a second round of evaluation was 95, and Mr. Asatov was therefore referred to subject matter experts, who determined that he was not one of the best qualified applicants. Mr. Asatov was not interviewed and was removed from consideration.

On December 13, 2011, Mr. Asatov filed a veterans' preference complaint with the Department of Labor ("DOL"). DOL investigated Mr. Asatov's complaint and determined that AID did not violate his veterans' preference rights and that his non-selection was based on his qualifications.

On January 16, 2012, Mr. Asatov filed a VEOA appeal with the Board alleging that AID violated his veterans' preference rights. Specifically, as relevant here, Mr. Asatov asserted violations of 5 U.S.C. §§ 3308 and 3318. The AJ decided not to hold a hearing because the issues were purely legal. The AJ determined that Mr. Asatov's veterans' preference rights in applying for the Foreign Service appointment were governed by 22 U.S.C. § 3941(c), and that AID complied with this section, and thus complied with the VEOA, by adding five points to his initial score of 94. See AJ Op. at 5.

Mr. Asatov appealed the AJ's decision to the full Board. Mr. Asatov argued that the AJ erred in not addressing his arguments under 5 U.S.C. §§ 3308 and 3318. The Board noted that the Foreign Service Act provides a separate statutory hiring authority for Foreign Service employees, and that much of title 5 does not apply to them. See Board Op. at 3 (citing 22 U.S.C. §§ 3941-3952). According to the Board, Mr. Asatov "received every consideration he was entitled to receive as...

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