                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBERS
                  Appellant,                         DE-3330-14-0413-I-1
                                                     DE-3330-14-0342-I-1
                  v.                                 DE-3330-14-0344-I-1
                                                     DE-3330-14-0351-I-1
     DEPARTMENT OF HEALTH AND                        DE-3330-14-0354-I-1
       HUMAN SERVICES,                               DE-3330-14-0372-I-1
                 Agency.
                                                     DATE: APRIL 10, 2015


             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

           Melinda V. McKinnon, Esquire, and Robert L. Thomas, Atlanta, Georgia,
            for the agency.

           Sara M. Klayton, 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 the appellant’s request for corrective action under the Veterans


     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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; 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        As the parties are familiar with the facts of this case, we are only reciting
     the background facts necessary to frame and decide the issues presented by the
     appellant on review. The appellant filed six separate VEOA appeals alleging that
     the Department of Health and Human Services (HHS), Centers for Disease
     Control and Prevention (CDC), violated his veterans’ preference rights by failing
     to select him for the Public Health Advisor positions advertised under the
     following individual delegated examining announcements open to all United
     States citizens: HHS-CDC-D2-14-1075176 (Vacancy ID 75176) (MSPB Docket
     No. DE-3330-14-0413-I-1 (0413)), HHS-CDC-D3-14-1036324 (Vacancy ID
     36324) (MSPB Docket No. DE-3330-14-0342-I-1 (0342)), HHS-SAMHSA-DE-
     XX-XXXXXXX (Vacancy ID 34969) (MSPB Docket No. DE-3330-14-0344-I-1
     (0344)), HHS-CDC-D4-14-1081377 (Vacancy ID 81377) (MSPB Docket No.
     DE-3330-14-0351-I-1      (0351)),   HHS-SAMHSA-DE-13-843240            (Vacancy    ID
     843240) (MSPB Docket No. DE-3330-14-0354-I-1 (0354)), HHS-SAMHSA-DE-
                                                                                            3

     XX-XXXXXXX (Vacancy ID 05201) (MSPB Docket No. DE-3330-14-0372-I-1)
     (0372)). 0413, Initial Appeal File (IAF), Tab 1; 0342, IAF, Tab 1; 0344, IAF,
     Tab 1; 0351, IAF, Tab 1; 0354, IAF, Tab 1; 0372, IAF, Tab 1. The administrative
     judge joined the appeals and found that the Board has jurisdiction over the joined
     appeals, pursuant to 5 U.S.C. § 3330a(a)(1), with respect to the appellant’s
     allegation that the agency failed to properly credit his experience in violation
     of 5 U.S.C. § 3311, which he exhausted at the Department of Labor (DOL).
     0413, IAF, Tab 8, Tab 31, Initial Decision (ID) at 1-2. The administrative judge
     further found that he lacked jurisdiction over the appellant’s other claims because
     he failed to exhaust those claims at DOL. 2 ID at 5.
¶3         Because the administrative judge found no genuine dispute of material fact,
     the administrative judge denied the appellant’s request for corrective action
     without holding a hearing.      ID at 2.     With respect to Vacancy IDs 1036324,
     1048446, 1081377, 1105201, 1075176, the administrative judge found in
     pertinent part that the agency’s human resources specialists considered all of the
     appellant’s valuable experience in his application packages and determined that
     he was not eligible because he lacked the required specialized experience set
     forth in the vacancy announcements. ID at 6-9, 12-13. The administrative judge
     further found that appellant did not allege that the agency improperly omitted,
     overlooked, or excluded any part of his 30-page resume in making its
     determination.    ID at 6-9, 12-13.       With respect to Vacancy ID 843240, the
     administrative   judge    found    that    the   agency   accidentally    reposted   the
     announcement in 2014 and cancelled it, without selecting any of the applicants,


     2
        The administrative judge found that he lacked jurisdiction over the appellant’s
     allegations that: the agency failed to maintain a system that fairly tests the relative
     capacity and fitness of the applicants sought in vio lation of 5 U.S.C. § 3304(a)(1); the
     agency’s determination was age discrim ination and thereby violated an unspecific
     veterans’ preference right recognized by VEOA; and the agency’s determination was
     the product of violations of 5 U.S.C. § 2302(b)(6), and thereby violated an unspecified
     veterans’ preference right recognized by VEOA. ID at 5.
                                                                                       4

     because the agency originally posted the vacancy announcement and filled the
     vacancy in 2013. ID at 11-12. Based on the foregoing, the administrative judge
     found that the agency did not violate 5 U.S.C. § 3311 or any other law relating to
     veterans’ preference. ID at 13.
¶4          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).
     Under 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d), the Board’s role is limited
     to determining whether the hiring agency improperly omitted, overlooked, or
     excluded a portion of the appellant’s experiences or work history in assessing his
     qualifications for the vacancy, and the Board will not reevaluate the weight the
     agency accorded these experiences in reaching its decision that the appellant was
     not qualified for a given position of employment. Miller v. Federal Deposit
     Insurance Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).
¶5          On review, the appellant argues that the administrative judge’s refusal to
     hold a hearing severely and wrongfully compromised his ability to question the
     legality of the agency’s actions with regard to Vacancy IDs 1036324, 1048446,
     1081377, 1105201, 1075176; however he fails to identify a genuine dispute of
     material fact requiring a hearing. Petition for Review (PFR) File, Tab 1 at 5.
     Instead, in his petition for review, he primarily discusses his prior VEOA appeals,
     the Board’s obligations to veterans, and a recent study published by the Board on
     recruitment and open competition for federal jobs. Id. at 4-13.
¶6          Contrary to the appellant’s arguments on review, the administrative judge
     properly decided this VEOA appeal on the merits without a hearing because the
     record on the dispositive issues was fully developed on appeal, the appellant had
     a full and fair opportunity to dispute the agency’s evidence, and there is no
     genuine dispute of material fact.       See Dean v. Consumer Product Safety
     Commission, 108 M.S.P.R. 137, ¶ 10 (2008). VEOA only prohibits an agency
     from denying a preference eligible the opportunity to compete; it does not provide
                                                                                        5

     that veterans will be considered for positions for which they are not qualified.
     See Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006). The
     agency ultimately determined that the appellant was not qualified for the Public
     Health Advisor positions announced under Vacancy IDs 1036324, 1048446,
     1081377, 1105201, 1075176, and the appellant’s arguments on review do not
     show that the agency violated one or more of his statutory or regulatory veterans’
     preference rights by failing to select him for any of those positions. PFR File,
     Tab 1; ID at 6-9, 12-13.
¶7        As explained in the agency’s submissions below and in the initial decision,
     the agency accepted applications under the remaining vacancy announcement,
     specifically Vacancy ID 843240, but the agency cancelled the 2014 vacancy
     announcement after discovering that it was an accidental reposting of a vacancy
     that was posted and filled in 2013. ID at 10-12; 0413, IAF, Tab 23, at 65-67;
     0354, IAF, Tab 12 at 10.       An agency does not violate a preference-eligible
     veteran’s rights under VEOA when it cancels a vacancy announcement rather than
     select him. Dean, 108 M.S.P.R. 137, 142, ¶ 11. The appellant disputes that the
     agency reposted Vacancy ID 843240 due to an administrative error, and he argues
     that the more likely scenario is that the agency hired a less qualified, non-veteran
     friend of the hiring authority.    PFR File, Tab 1 at 5, 14-16.        Although the
     appellant is skeptical about the veracity of the agency’s explanation for
     cancelling Vacancy ID 843240, the agency provided a lawful reason for the
     cancellation and the appellant offers no new evidence or argument on review
     proving that the agency’s action violated a statute or regulation relating to
     veterans’ preference laws. See Abell v. Department of the Navy, 343 F.3d 1378,
     1384 (Fed. Cir. 2003) (finding that “[a]n agency may cancel a vacancy
     announcement for any reason that is not contrary to law”).           Moreover, the
     appellant fails to identify any evidence to support his theory that the agency filled
     the announced vacancy by hiring “a less qualified, non-veteran friend of the
     hiring authority.” PFR File, Tab 1 at 14.
                                                                                       6

¶8        On review, the appellant challenges the administrative judge’s finding that
     the Board lacks jurisdiction to consider the claims that he failed to exhaust at
     DOL, and he attempts to reassert those claims on review. PFR File, Tab 1 at
     17-19; ID at 5; see supra ¶ 2 n.2. Although the Board uses a liberal pleading
     standard for allegations of violations of veterans’ preference in a VEOA appeal,
     evidence of the exhaustion requirement is mandatory under the statute and is not
     subject   to   the   same    liberal   construction.   Mims   v.   Social   Security
     Administration, 120 M.S.P.R. 213, ¶ 24 (2013). Because the appellant offers no
     new proof that he satisfied the exhaustion requirement with respect to any
     additional claims on review, the Board has no jurisdiction to consider them.
¶9        The appellant raises additional arguments on review that are not dispositive
     and provide no basis for disturbing the initial decision denying his request for
     corrective action under VEOA. We therefore deny the petition for review.

                      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).
                                                                                  7

     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
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.
