                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBERS
                  Appellant,                         DE-3330-14-0414-I-1
                                                     DE-3330-14-0418-I-1
                  v.                                 DE-3330-14-0422-I-1

     AGENCY FOR INTERNATIONAL
       DEVELOPMENT,
                  Agency.                            DATE: March 26, 2015



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

           Frank Max Walsh, Esquire, 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
     Employment Opportunities Act of 1998 (VEOA). Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        The following facts are undisputed unless otherwise noted. The appellant
     exhausted his administrative remedies with the Department of Labor and timely
     filed three appeals alleging that the Agency for International Development (AID
     or the agency) violated his veterans’ preference rights when it did not select him
     for Vacancy Announcements AID-14-0127-DM (MSPB Docket No. DE-3330-14-
     0414-I-1), AID-14-0165-DM1 (MSPB Docket No. DE-3330-14-0418-I-1), and
     AID-14-0173-DM (MSPB Docket No.            DE-3330-14-0422-I-1).      MSPB Docket
     No. DE-3330-14-0414-I-1 (0414), Initial Appeal File (IAF), Tab 23, Initial
     Decision (ID) at 3. The administrative judge joined the appeals for adjudication.
     0414, IAF, Tab 7.          The agency selected a candidate under Vacancy
     Announcement AID-14-0165-DM1 for the GS-15 Supervisory Public Health
     Advisor (HIV/AIDS) position to serve “as the Division Chief providing
     leadership, supervision, and technical expertise in monitoring and evaluation [ ]
     and the coordination of strategic information [ ] activities for global HIV and
                                                                                            3

     AIDS programming.” 0414, IAF, Tab 6 at 168, Tab 15 at 13. The appellant was
     deemed not qualified for the HIV/AIDS position. 2 0414, IAF, Tab 6 at 14.
¶3         The agency also determined that the appellant was not qualified under
     Vacancy Announcements AID-14-0127-DM and AID-14-0173-DM. Id. at 24, 42.
     The agency cancelled those recruitments, without making a selection, and elected
     to have the positions reclassified. 0414, IAF, Tab 15 at 50, 55. The appellant
     requested and received second opinions from the agency concerning his
     applications for all three vacancy announcements, and the agency’s subject matter
     experts reviewed his application and upheld the original determinations finding
     that he was not qualified. 0414, IAF, Tab 6 at 14, 24, 29-30, 42-43, 46-50.
¶4         On appeal, the appellant argued that agency personnel failed to properly
     evaluate his applications, that he qualified for all three positions, and that the
     selection process was unlawful. 3 0414, IAF, Tab 9 at 4, 6. The administrative
     judge informed the parties that he found no genuine dispute of material fact
     requiring a hearing, advised the parties of the applicable law and burdens of
     proof, and issued a close of the record order allowing the parties until
     September 19, 2014, to supplement the record. 0414, IAF, Tab 10. The parties
     responded, and the administrative judge found, based on the undisputed facts, that
     the agency did not violate any of the appellant’s statutory or regulatory veterans’
     preference rights in its selection process. 0414, IAF, Tabs 12, 14-15, 17, 19-22;
     ID at 3.
¶5         The administrative judge found preponderant evidence established that the
     agency did not improperly omit, overlook, or exclude a portion of the appellant’s
     experiences or work history in finding that he was not qualified for the HIV/AIDS
     Supervisory    Public   Health    Advisor    position    announced     under   Vacancy

     2
       The announced vacancies were open to all U.S. citizens and nationals. 0414, IAF, Tab
     6 at 88, 162, 168.
     3
      The appellant has not alleged that the agency failed to adjudicate his 5-point veterans’
     preference in processing his applications.
                                                                                       4

     AID-14-0165-DM1. ID at 8. In reaching his decision, the administrative judge
     considered the detailed analysis of the agency’s subject matter experts who twice
     reviewed the appellant’s qualifications and found that he lacked the relevant
     specialized experience required for the HIV/AIDS position.          ID at 7.    The
     administrative judge also found that the appellant failed to submit any evidence
     or argument showing that the agency’s failure to make any selections under
     Vacancy Announcements AID-14-0127-DM and AID-14-0173-DM was unlawful.
     ID at 4-5.    In addition, the administrative judge stated that the documents
     submitted by the appellant concerning the improper selection practices
     purportedly used by the Department of Health & Human Services (HHS)
     pertained to a separate executive agency from AID and thus had little if any
     probative value. ID at 8.
¶6        The appellant has filed a petition for review arguing, in pertinent part, that
     he was improperly denied a hearing and that the “most salient” fact in dispute is
     his claim that the agency violated his “VEOA rights.” Petition for Review (PFR)
     File, Tab 1 at 7, 9. The appellant also refers to prior appeals he filed against a
     different agency (HHS); argues that there is a pattern and practice of
     circumventing veterans’ rights; and asks the Board to find, based on the record
     evidence, that the agency violated his rights under VEOA. PFR File, Tab 1 at
     8-12, 15.    The agency has responded in opposition to the petition, and the
     appellant has replied reasserting his argument that he was improperly denied a
     hearing and arguing that the agency’s representative distorted his qualifying work
     experience. PFR File, Tab 3, Tab 4 at 7-8.
¶7        To be entitled to relief under VEOA, the appellant must prove by
     preponderant evidence that the agency’s action violated one or more of his
     statutory or regulatory veterans’ preference rights in its selection process. Graves
     v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 10 (2010).                 A
     preponderance of the evidence is that degree of relevant evidence that a
     reasonable person, considering the record as a whole, would accept as sufficient
                                                                                             5

     to find that a contested fact is more likely to be true than untrue.            5 C.F.R.
     § 1201.56(c)(2). The Board 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.         Haasz v. Department of Veterans
     Affairs, 108 M.S.P.R. 349, ¶ 9 (2008). A factual dispute is “material” if, in light
     of the governing law, its resolution could affect the outcome. Redd v. U.S. Postal
     Service, 101 M.S.P.R. 182, ¶ 14 (2006). A factual dispute is “genuine” when
     there is sufficient evidence favoring the party seeking an evidentiary hearing for
     the administrative judge to rule in favor of that party should that party’s evidence
     be credited. Id.
¶8        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. 5 U.S.C. § 3311(2); see 5 C.F.R. § 302.302(d); see also Miller v. Federal
     Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014).                  Although a
     preference eligible is entitled to have a broad range of experiences considered by
     the agency in reviewing his application for a position, how the agency adjudges
     and weighs those experiences is beyond the purview of the Board’s review in a
     VEOA appeal. Miller, 121 M.S.P.R. 88, ¶ 9.
¶9        The matter at issue in a VEOA appeal is not whether a particular agency
     action is proper and should be sustained. Id. Pursuant to 5 U.S.C. § 3311(2)
     and 5 C.F.R. § 302.302(d), the Board is limited to assessing whether an agency
     considered all of an appellant’s “valuable experience” that is material to the
     position for which he has applied, and this assessment does not include a review
     of the weight the agency gave to a preference eligible’s prior experiences in
     determining that he was not qualified for a position of employment.
     Miller, 121 M.S.P.R. 88, ¶ 9. That said, VEOA does not guarantee a preference
     eligible a position of employment.        Scharein v. Department of the Army, 91
                                                                                           6

      M.S.P.R. 329, ¶¶ 9-10 (2002), aff’d, No. 02‑3270, 2008 WL 5753074 (Fed. Cir.
      Jan. 10, 2008).
¶10        The appellant’s argument that the agency violated his veterans’ rights under
      VEOA is a dispute of law, not a genuine dispute of material fact that warrants a
      hearing. PFR File, Tab 1 at 7. It is undisputed that the agency did not select any
      candidates who applied under Vacancy Announcements AID-14-0127-DM and
      AID-14-0173-DM. ID at 2-3. The Board has recognized that there is no statute
      or regulation that requires an agency to make a selection for a vacancy
      announcement.     To the contrary, the Board has observed that an agency may
      cancel or repost a vacancy announcement without making a selection. Ward v.
      Office of Personnel Management, 79 M.S.P.R. 530, 534 (1998) (an agency has
      discretion as to which sources it will use to fill its positions and may select or not
      select from the applicants who respond to a vacancy announcement), aff’d,
      194 F.3d 1333 (Fed. Cir. 1999) (Table); 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”). Although
      the appellant argues that he was qualified for the positions, we agree with the
      administrative judge’s finding that the agency’s recruitment process under these
      vacancy announcements did not violate the appellant’s rights under any statute or
      regulation related to veterans’ preference. ID at 5.
¶11        The agency also determined that the appellant was not qualified under
      Vacancy     Announcement     AID-14-0165-DM1,       and   the   agency    selected   a
      nonveteran applicant for the announced GS-15 Supervisory Public Health Advisor
      position. ID at 5; 0414, IAF, Tab 6 at 14. In the vacancy announcement, the
      agency stated that the person selected for the Supervisory Health Advisor position
      would serve as the Division Chief for the Bureau of Global Health, Office of
      HIV/AIDS, Strategic Planning, Evaluation & Reporting Division. 0414, IAF, Tab
      6 at 168.   Although the appellant disputes the agency’s determination that he
      lacks the 1-year of specialized experience (equivalent to the GS-14 grade level)
                                                                                         7

      required for the HIV/AIDS Supervisory Public Health Advisor position, 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. 0414, IAF, Tab 6 at 170; see Miller, 121 M.S.P.R. 88, ¶ 12.
¶12        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 those experiences in reaching its decision that the appellant
      was not qualified for a given position of employment.            See Kirkendall v.
      Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009) (“Section 3311(2)
      guarantees that any experience of a veteran that is material to the position for
      which the veteran is examined will be credited.       At the very least, ‘credited’
      means ‘considered.’”).    Based on our review of the record, we find that the
      agency’s documentary evidence shows that its subject matter experts reviewed the
      appellant’s applications and considered all of his relevant experience and work
      history, including his military service, in assessing his qualifications for the
      announced vacancies. 0414, IAF, Tab 6 at 24, 29-30, 39-43, 46-50.
¶13        As to Vacancy Announcement AID-14-0165-DM1, the agency informed
      applicants that “answers to the assessments questions must be supported by the
      experience described in [the applicant’s] resume or [curriculum vitae] . . . [and if]
      your answers are not supported, this may affect your eligibility for further
      consideration.” 0414, IAF, Tab 6 at 170. The Director of the AID Office of HIV
      and AIDS reviewed the appellant’s application and determined that he was not
      qualified, in part because the appellant’s answers to 9 of 16 assessment questions
      were not supported by experience described in his resume. Id., Tab 6 at 50-51.
      Significantly, the Director also noted that the appellant’s resume did not show
      that he worked in international and developing country HIV/AIDS programs,
                                                                                               8

      which was the type of specialized experience required to qualify for the position
      based on the examples in the vacancy announcement. Id. at 48.
¶14         Despite the appellant’s statement that the administrative judge “made
      numerous errors in material fact,” the appellant failed to identify any genuine
      dispute of material fact that would justify a hearing in this appeal. PFR File, Tab
      1 at 9. The appellant’s arguments that the agency should have interviewed him
      based on his experience, and the agency’s “narrative response seriously
      mischaracterized his career as well as prior legal cases” he brought against
      another agency (HHS), do not identify any genuine disputes of material fact
      requiring a hearing. PFR File, Tab 1 at 4, Tab 4 at 6-8. The appellant did not
      identify any experience or work history in his resume, concerning international
      and developing country HIV/AIDS programs, that the agency allegedly omitted,
      overlooked, or excluded.        Moreover, we reviewed the appellant’s 30-page,
      single-spaced resume, which he submitted for consideration under Vacancy
      Announcement AID-14-0165-DM1, and we found no reference to any experiences
      or job history directly related to HIV/AIDS programs.               We agree with the
      administrative judge’s finding that the agency conducted a detailed analysis of the
      appellant’s qualifications and considered all of his material experience in
      determining that he was not qualified. ID at 7-8.
¶15         The appellant raises additional arguments on review, which are not
      dispositive and provide no basis to disturb the initial decision denying his request
      for corrective action under VEOA. 4          As previously stated, how the agency
      weighed the appellant’s experience is beyond the purview of the Board’s review
      in a VEOA appeal. Miller, 121 M.S.P.R. 88, ¶ 9. An agency is not required to

      4
        For example, the appellant argues, among other things, that he was deemed “Best
      Qualified” for 36 positions in 2014 but received no job offers. PFR File, Tab 4 at 5.
      He discusses VEOA appeals involving agencies other than AID and claims that there is
      a pattern and practice of intentionally circumventing veterans’ rights. I d. at 4, 8. He
      also argues that the administrative judge failed to perform her judicial function, but he
      failed to establish a basis for granting h is petition for review. PFR File, Tab 1 at 6-10.
                                                                                         9

      hire a preference-eligible veteran if, as was the case here, it does not believe that
      the candidate is qualified or possesses the necessary experience.         See Abell,
      343 F.3d at 1384.
¶16         Although the appellant also raised a claim of age discrimination, it is well
      settled that the Board has no authority to adjudicate discrimination claims in
      connection with VEOA appeals. PFR File, Tab 1 at 8, Tab 4 at 7; see Ruffin v.
      Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001). We therefore affirm
      the initial decision.

                       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.
                                                                               10

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.
