                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBERS
                  Appellant,                         DE-3330-15-0304-I-1
                                                     DE-3330-15-0322-I-1
                  v.

     DEPARTMENT OF HEALTH AND
       HUMAN SERVICES,                               DATE: February 25, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Robert L. Thomas, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed petitions for review of the initial decisions, which
     denied his requests for corrective action under the Veterans Employment
     Opportunities Act of 1998 (VEOA) on the merits without a hearing. Generally,
     we grant petitions such as these ones only when: the initial decision contains


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 administrative 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 these appeals, we conclude
     that the petitioner has not established any basis under section 1201.115 for
     granting the petitions for review. Therefore, we DENY the petitions for review
     and   AFFIRM the          initial   decisions,    which   are     now   the   Board’s   final
     decisions. 5 C.F.R. § 1201.113(b).

                                           BACKGROUND
¶2             In March 2015, the agency issued concurrent merit promotion and open
     competitive vacancy announcements for a GS-15 Public Health Advisor position
     located in Port-Au-Prince, Haiti.             Jones v. Department of Health & Human
     Services, MSPB Docket No. DE-3330-15-0304-I-1, Initial Appeal File (0304
     IAF), Tab 6 at 58-59; Jones v. Department of Health & Human Services, MSPB
     Docket No. DE-3330-15-0322-I-1, Initial Appeal File (0322 IAF), Tab 5 at 58.
     Both vacancy announcements indicated that the minimum qualifications required
     for the position were 1 year of specialized experience at the GS-14 level,
     including “experience developing and formulating new programs and initiatives
     that are in accord with public health activities specific to the elimination of
     HIV/AIDS.” 0304 IAF, Tab 6 at 59-60; 0322 IAF, Tab 5 at 59-60.
                                                                                           3

¶3         The appellant, a 5-point preference-eligible veteran, applied for the position
     under both vacancy announcements. 2 0304 IAF, Tab 6 at 22, 25-56; 0322 IAF,
     Tab 5 at 22, 25-56.     His applications were reviewed by a Human Resources
     Specialist, who determined that the appellant was ineligible for the position
     because he lacked the requisite specialized experience. 3 0304 IAF, Tab 6 at 15,
     18; 0322 IAF, Tab 5 at 15, 18.
¶4         The appellant filed separate Board appeals alleging, in pertinent part, that
     the agency failed to credit his military experience when evaluating his
     applications under the each of the vacancy announcements. 0304 IAF, Tab 1 at 5;
     0322 IAF, Tab 1 at 5.     In response, the agency submitted declarations signed,
     under penalty of perjury, by the Human Resources Specialist who evaluated the
     appellant’s applications, swearing that she considered the appellant’s résumé and
     application, including his experience as a Medical Corpsman while serving in the
     military, and found that he lacked the experience required for the position. 0304
     IAF, Tab 6 at 14-16; 0322 IAF, Tab 5 at 14-16. The Human Resources Specialist
     also swore that the agency did not select any of the candidates that applied for the
     positon under either of the vacancy announcements, and that the certificates of
     eligible candidates were returned unused.        0304 IAF, Tab 6 at 16; 0322 IAF,
     Tab 5 at 16.
¶5         The administrative judge issued orders finding no genuine disputes of
     material fact based on his review of the parties’ submissions, and affording the


     2
       Because the agency was accepting applications from outside its own workforce and
     the appellant was a preference-eligible veteran, see 0304 IAF, Tab 6 at 22, 58, the
     agency was required to afford the appellant the opportunity to apply and compete for
     the position under the merit promotion vacancy announcement, 5 U.S.C. § 3304(f)(1);
     see Joseph v. Federal Trade Commission, 505 F.3d 1380, 1383 (Fed. Cir. 2007).
     3
       The agency initially informed the appellant that, based on his self-assessment, he was
     eligible for the position. 0304 IAF, Tab 6 at 23; 0322 IAF, Tab 5 at 23. However, after
     the Human Resources Specialist further reviewed the appellant’s application, the
     agency determined that the appellant was not eligible for the position. 0304 IAF, Tab 6
     at 15, 18; 0322 IAF, Tab 5 at 15, 18.
                                                                                          4

     parties an additional opportunity to supplement the records in each of the appeals
     before they closed. 0304 IAF, Tab 13 at 1; 0322 IAF, Tab 13 at 1. In response,
     among other things, the appellant presented arguments regarding his prior VEOA
     appeals against the agency concerning vacancy announcements not at issue in
     these appeals. 0304 IAF, Tab 16 at 6-9; 0322 IAF, Tab 15 at 5.
¶6         The administrative judge issued initial decisions denying the appellant’s
     requests for corrective action without a hearing.         0304 IAF, Tab 17, Initial
     Decision (0304 ID); 0322 IAF, Tab 17, Initial Decision (0322 ID). He found that
     the Board had jurisdiction over the appeals pursuant to 5 U.S.C. § 3330a(d), but
     that there were no disputes of material fact and the agency was entitled to
     judgment as a matter of law. 0304 ID at 1, 5-9; 0322 ID at 1, 4-8.
¶7         The appellant has filed identical petitions for review of the initial decisions.
     Jones v. Department of Health & Human Services, MSPB Docket No. DE-3330-
     15-0304-I-1, Petition for Review (0304 PFR) File, Tab 1; Jones v. Department of
     Health & Human Services, MSPB Docket No. DE-3330-15-0322-I-1, Petition for
     Review (0322 PFR) File, Tab 1. The agency has filed responses in opposition to
     the petitions for review. 0304 PFR File, Tab 3; 0322 PFR File, Tab 3.
¶8         As a preliminary matter, because the petitions for review raise similar
     issues, we join the appeals to address the petitions for review.         See 5 C.F.R.
     § 1201.36(b) (joinder is appropriate if doing so would expedite processing and
     not adversely affect the interests of the parties). 4

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶9         On review, the appellant argues that the administrative judge erred in
     deciding his appeals on the written record, without granting his requests for a
     hearing. 0304 PFR File, Tab 1 at 5-6, 8-13; 0322 PFR File, Tab 1 at 5-6, 8-13.

     4
       Below, the administrative judge issued orders joining the appeals, but then continued
     to process and adjudicate the appeals separately. 0304 IAF, Tab 9, Tab 10 at 1 n.2;
     0322 IAF, Tab 4. The appeals were later severed and the administrative judge issued a
     separate initial decision in each appeal.
                                                                                             5

      He presents a variety of arguments in support of this contention, all of which we
      find unpersuasive.
¶10         The appellant contends that a hearing was required in accordance with the
      initial   decision in   Jones v. Department         of   Health & Human        Services,
      MSPB Docket No. DE-3330-10-0168-I-1, Initial Decision (Apr. 30, 2010). 5 0304
      PFR File, Tab 1 at 9-13; 0322 PFR File, Tab 1 at 9-13. We disagree; an initial
      decision issued by an administrative judge has no precedential effect.               See
      Rockwell v. Department of Commerce, 39 M.S.P.R. 217, 222 (1988).                    The
      appellant also argues, citing 5 C.F.R. § 1201.24(d), that “[a]n appellant generally
      has a right to a hearing on the merits if the appeal has been timely filed and the
      Board has jurisdiction over the appeal.” 0304 PFR File, Tab 1 at 8; 0322 PFR
      File, Tab 1 at 8. The Board’s regulations, however, provide an exception to this
      general rule for VEOA appeals, and provide for the disposition of such appeals on
      the merits without a hearing. 5 C.F.R. § 1208.23(b); see Davis v. Department of
      Defense, 105 M.S.P.R. 604, ¶ 12 (2007).
¶11         In addition, the appellant claims that hearings should be mandatory based
      on findings stated in the Board’s January 2015 study titled, “The Impact of
      Recruitment Strategy on Fair and Open Competition for Federal Jobs.” 0304 PFR
      File, Tab 1 at 5-6; 0322 PFR File, Tab 1 at 5-6.            However, the Board has
      repeatedly held that it has the authority to decide a VEOA appeal on the merits,
      without a hearing, where there is no genuine dispute of material fact and one
      party must prevail as a matter of law.        See Haasz v. Department of Veterans
      Affairs, 108 M.S.P.R. 349, ¶ 9 (2008); Davis, 105 M.S.P.R. 604, ¶ 12. We find

      5
        In his petition for review, the appellant references the docket number of his appeal
      relating to his petition for enforcement of that initial decision, Jones v. Department of
      Health & Human Services, MSPB Docket No. DE-3330-10-0168-X-1, Final Order
      (Dec. 10, 2012) (Final Order). 0304 PFR File, Tab 1 at 9-12; 0322 PFR File, Tab 1
      at 9, 12. However, the appellant’s arguments on review make clear that he intends to
      reference the initial decision on the merits of his appeal, rather than the petition for
      enforcement of that initial decision, which was dismissed by the Board. 0304 PFR File,
      Tab 1 at 9-12; 0322 PFR File, Tab 1 at 9-12; see Final Order at 2.
                                                                                           6

      that the appellant’s arguments on review do not establish a basis to depart from
      this well-established principle.
¶12         The appellant also contends that the administrative judge should have held a
      hearing because there was a genuine dispute of material fact as to whether the
      agency credited his military experience as a medic in Vietnam. 0304 PFR File,
      Tab 1 at 13-17; 0322 PFR File, Tab 1 at 13-17. We disagree. Preference-eligible
      veterans applying for Federal employment have the right “to credit for all
      experience material to the position for which examined, including experience
      gained in religious, civic welfare, service, and organizational activities,
      regardless of whether” such experience is unpaid. 6 5 U.S.C. § 3311(2); 5 C.F.R.
      § 302.302(d).   However, it would be inconsistent with the Board’s role under
      VEOA to engage in a fact-based review of how an agency weighed and assessed a
      preference   eligible’s   experiences    in   making    its   hiring   decisions   and
      determinations about the preference eligible’s qualifications for a position.
      Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 12 (2014).
      Therefore, while the Board will determine 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, the Board will not
      reevaluate the weight the agency accorded those experiences in reaching its
      decision that the appellant was not qualified for a given position.        Id. (citing
      Kirkendall v. Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009)).

      6
         With regard to the appellant’s application under the merit promotion vacancy
      announcement, the Board has previously examined whether an agency violated an
      appellant’s veterans’ preference rights under 5 U.S.C. § 3304(f)(1) in denying him the
      opportunity to compete for a vacancy announced under the merit promotion process by
      failing to properly consider his application. See Phillips v. Department of the Navy,
      110 M.S.P.R. 184, ¶¶ 3, 12 (2008). In Phillips, the Board remanded the appeal to the
      regional office to determine whether the agency properly considered the appellant’s
      qualifications for a GS-8 position. Phillips, 110 M.S.P.R. 184, ¶¶ 12, 14. In so doing,
      we recognized that an agency’s consideration of an individual’s qualifications,
      including prior work experience, as set forth in the application materials, is part of
      affording an individual the opportunity to compete for a vacancy. See id., ¶¶ 9, 10.
                                                                                         7

¶13         As previously noted, the agency submitted a sworn statement from the
      Human Resources Specialist who evaluated the appellant’s application, asserting
      that she considered the appellant’s experience as a Medical Corpsman, and found
      that it was not related to the job being filled. 0304 IAF, Tab 6 at 15; 0322 IAF,
      Tab 5 at 15. The Human Resources Specialist further swore that she considered
      the specific experiences that the appellant cited in his résumé, and concluded that
      the appellant did not demonstrate experience developing and formulating new
      programs and initiatives that are in accord with public health activities specific to
      the elimination of HIV/AIDS. 0304 IAF, Tab 6 at 15; 0322 IAF, Tab 5 at 15.
      The administrative judge correctly found that the agency submitted sworn
      statements indicating that it considered all of the appellant’s experience, and the
      appellant presented no evidence to the contrary. 0304 ID at 7-8; 0322 ID at 6.
¶14         We have considered the appellant’s arguments on review, and we find that
      he is disputing the weight that the agency gave to his prior experience, rather than
      whether the agency considered that experience in evaluating his application. See
      0304 PFR File, Tab 1 at 13-17; 0322 PFR File Tab 1 at 13-17. For example, the
      appellant argues that his experience in Vietnam regarding the use of prophylactics
      to stop the transmission of sexually transmitted diseases should have been
      considered relevant to developing and formulating new programs and initiatives
      that are in accord with public health activities specific to the elimination of
      HIV/AIDS.     0304 PFR File, Tab 1 at 15-16; 0322 PFR File, Tab 1 at 15-16.
      However, VEOA does not empower the Board to reevaluate the merits of an
      agency’s ultimate determination that a preference-eligible veteran is not qualified
      for a position with the agency. See Miller, 121 M.S.P.R. 88, ¶ 12.
¶15         Accordingly, because the record reflects that the agency reviewed the
      appellant’s application and considered all of his relevant experience and work
      history, including his military service, in assessing his qualifications, the
      appellant has failed to meet his burden of proving that the agency violated his
                                                                                             8

      veterans’ preference rights or right to compete. 7 See Miller, 121 M.S.P.R. 88,
      ¶ 11 (finding that a preference eligible’s right to compete does not preclude an
      agency from eliminating a veteran or preference eligible from further
      consideration for a position based on his qualifications for the position, and that
      nothing requires that the veteran or preference eligible be considered at every
      stage of the selection process, up to that process’s final stage); see also Harellson
      v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010) (same).
¶16         On review, the appellant further argues that the administrative judge failed
      to “credit” his status as a combat veteran, or to express gratitude for his military
      service.   0304 PFR, Tab 1 at 7; 0322 PFR File, Tab 1 at 7.           To the contrary,
      however, the administrative judge recognized that the appellant had military
      service as a Medical Corpsman in Vietnam, and that VEOA is an “expression of
      gratitude” to veterans. 0304 ID at 7 n.3; 0322 ID at 5, 6 & n.3. The appellant
      also contends that the administrative judge failed to consider that VEOA is a
      remedial statute that should be broadly construed. 0304 PFR File, Tab 1 at 6-7;
      0322 PFR File, Tab 1 at 6-7.          Although VEOA is a remedial statute, the
      administrative judge correctly identified the relevant issue in these appeals as
      whether the agency improperly omitted, overlooked, or excluded a portion of the
      appellant’s experience or work history in assessing his qualifications for the
      vacancy, and concluded that the appellant had offered no such evidence. 0304 ID
      at 6-8; 0322 ID at 4-6.



      7
        Furthermore, the agency’s decision to make no selection for the position under either
      the merit promotion or open competitive vacancy announcements did not deny the
      appellant his opportunity to compete or otherwise violate his rights under a statute or
      regulation relating to veterans’ preference. See Abell v. Department of the Navy,
      343 F.3d 1378, 1384 (Fed. Cir. 2003) (finding that an agency did not violate a
      preference-eligible veterans’ right to compete under VEOA when it canceled a vacancy
      announcement); Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶ 10 (2002)
      (finding that an agency is not required to fill a particular vacancy and does not violate
      an applicant’s veterans’ preference rights when it chooses not to make a selection).
                                                                                      9

¶17         The appellant appears to argue on review that the administrative judge erred
      in failing to adjudicate his claims of prohibited personnel practices. 0304 PFR
      File, Tab 1 at 17-18; 0322 PFR File, Tab 1 at 17-18; see 0322 IAF, Tab 8 at 4.
      However, the Board’s jurisdiction in a VEOA appeal does not extend to the
      adjudication of prohibited personnel practice claims. See Graf v. Department of
      Labor, 111 M.S.P.R. 444, ¶ 6 n.2 (2009) (finding that the Board lacked authority
      to review allegations of disability discrimination and prohibited personnel
      practices claims in a VEOA appeal). The appellant also claims that the agency
      was required to hire him as a veteran, unless they had a “pass-over request
      approved, for lawful reasons.” 0304 PFR, Tab 1 at 18; 0322 PFR, Tab 1 at 18.
      However, an agency may eliminate a preference-eligible veteran from further
      consideration for a position based upon his qualifications, and the agency was not
      obligated to hire the appellant for a position for which it determined that he
      was not qualified. See Harellson, 113 M.S.P.R. 534, ¶ 11; Dale v. Department of
      Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006) (finding that VEOA does not
      provide that veterans will be considered for positions for which they
      are not qualified).
¶18         We have considered the appellant’s remaining arguments on review
      including, but not limited to, his arguments regarding testimony and proceedings
      in his prior unrelated appeals, his analysis of “The Odyssey” by Homer, his
      comparison of his Board appeal to the criminal trial of Dzhokhar Tsarnaev, and
      his criticism of the Government for its responses to various natural disasters and
      health epidemics. See 0304 PFR File, Tab 1 at 9-12, 21-24; 0322 PFR File, Tab 1
      at 9-12, 21-24. Having considered these arguments, we find that they present no
      basis to disturb the initial decisions denying the appellant’s requests for
      corrective action under VEOA.
                                                                                 10

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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 U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for   information    regarding   pro    bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.                                                                        The
                                                                                 11

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.
