                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-14-0555-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 3, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           John Paul Jones, III, Albuquerque, New Mexico, pro se.

           William A. Biglow, Esquire, and Matthew M. Vince, Washington , D.C.,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action under the Veterans Employment
     Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

     *
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.              5 C.F.R.
     § 1201.113(b).
¶2         The appellant, a 5-point preference-eligible veteran, timely filed this appeal
     in which he claimed that the agency violated his veterans’ preference rights when
     it determined that he was not qualified for a GS-13 Public Health Advisor
     position with the agency’s Substance Abuse and Mental Health Administration,
     vacancy announcement HHS-SAMHSA-DE-14-1135041.                  Initial Appeal File
     (IAF), Tab 1. He demonstrated exhaustion of his administrative remedies before
     the Department of Labor, which, in an August 15, 2014 letter, informed him that
     it had completed its investigation of his timely-filed complaint but that it had no
     authority to investigate or determine specific job requirements under VEOA. Id.
     at 4, 8.
¶3         Without holding the requested hearing, id. at 2, the administrative judge
     found jurisdiction over the appeal but denied the appellant’s request for
     corrective action because he found that the agency established by preponderant
     evidence that it did not improperly omit, overlook, or exclude any portion of the
     appellant’s experience or work history in assessing his qualifications for the
     vacancy at issue such that it did not violate his veterans’ preference rights in
                                                                                       3

     doing so, IAF, Tab 18, Initial Decision (ID).       In his timely-filed petition for
     review, the appellant argues that the administrative judge was biased against him.
     Petition for Review (PFR) File, Tab 1 at 6-10. The appellant also challenges the
     administrative judge’s decision to forego a hearing and decide the appeal on the
     written record.   Id. at 10-15.   The agency has responded in opposition to the
     appellant’s petition for review. PFR File, Tab 3.
¶4         In pertinent part, to be entitled to relief under VEOA, the appellant must
     prove by preponderant evidence that the agency’s selection violated one or more
     of his statutory or regulatory veterans’ preference rights. Dale v. Department of
     Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). The Board may decide a VEOA
     claim on the merits without a hearing when there is no genuine issue of material
     fact and one party must prevail as a matter of law.        Davis v. Department of
     Defense, 105 M.S.P.R. 604, ¶ 12 (2007). As the following discussion indicates,
     we agree that the record presents no genuine issue of material fact and find that
     the administrative judge appropriately denied the appellant’s request for
     corrective action under VEOA on the written record.
¶5         Under 5 C.F.R. § 302.302(d), when experience is a factor in determining
     eligibility, as it is in the instant matter, an agency shall credit a preference
     eligible like the appellant as follows:
           (1) with time spent in the military service of the United States if the
           position for which he/she is applying is similar to the position which
           he/she held immediately before his/her entrance into the military
           service; and
           (2) with all valuable experience, including experience gained in
           religious, civic, welfare, service, and organizational activities,
           regardless of whether pay was received therefor.
¶6         Nevertheless, “VEOA does not enable veterans to be considered for
     positions for which they are not qualified.” Lazaro v. Department of Veterans
     Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (citing Ramsey v. Office of
     Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000)). In the context of a VEOA
     claim, the Board may examine whether an agency properly assessed an
                                                                                         4

     applicant’s qualifications as part of its analysis of whether the agency afforded
     that individual, in accordance with relevant veterans’ preference statutes or
     regulations, the right to compete for a position. Lazaro, 666 F.3d at 1321. In
     doing so, the Board’s authority is limited to examining whether the hiring agency
     improperly omitted, overlooked, or excluded any of the appellant’s experience in
     assessing his or her qualifications for the position at issue, in order to ensure that
     the agency considered and credited any experience material to the position.
     Kirkendall v. Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009).
¶7        In that regard, the agency official who conducted a detailed qualifications
     analysis of the appellant’s application specified in a sworn statement that the
     appellant’s 31-page resume showed that he lacked experience in the areas of
     “criminal justice, substance abuse, oversight of grants and contracts, and
     experience with evidence-based practices for substance use disorders,” all of
     which were among the required experience for the position at issue. IAF, Tab 9
     at 11, 82. The appellant does not challenge this finding on review and we agree
     with the administrative judge that the record does not reflect that the agency
     violated the appellant’s veterans’ preference rights in considering his experience
     material to the position at issue and in determining that his lack of such
     experience indicated that he was not qualified for the position.
¶8        Regarding the appellant’s claim that the administrative judge was biased
     against him, in making such a claim, a party must overcome the presumption of
     honesty and integrity that accompanies administrative adjudicators.         Oliver v.
     Department of Transportation, 1 M.S.P.R. 382, 386 (1980).                Further, an
     administrative judge’s conduct during the course of a Board proceeding warrants
     a new adjudication only if the administrative judge’s comments or actions
     evidence “a deep-seated favoritism or antagonism that would make fair judgment
     impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
     Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).           The
     appellant filed a motion in the appeal below to disqualify the administrative judge
                                                                                      5

in which he explicitly explained why he believes that the administrative judge
was biased against him. IAF, Tab 6. In his ruling on the appellant’s motion, the
administrative judge provided a detailed explanation of why the appellant failed
to meet the above-cited burden.         IAF, Tab 12.     The appellant repeats his
arguments on review. PFR File, Tab 1 at 6-9. We agree with the administrative
judge’s analysis and find that the appellant’s arguments on review do not show
that the administrative judge either erred or abused his discretion in this matter.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,    http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
                                                                                6

Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
