                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-14-0312-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 10, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

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

           Melinda V. McKinnon, Atlanta, Georgia, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 alleged that the agency violated his veterans’ preference
     rights when it failed to select him for the open, continuous vacancy
     announcement number HHS-CDC-OD-13-883025, Public Health Advisor, GS-
     12/14, in various international locations. Initial Appeal File (IAF), Tab 1, Tab 6
     at 56-63.   Under an open, continuous vacancy announcement, the agency fills
     vacancies at a particular grade level and location, as they become available. IAF,
     Tab 19 at 17. The record reflects that the appellant exhausted his administrative
     remedies before the Department of Labor and timely filed the instant appeal.
     IAF, Tab 1 at 7-8.
¶3        Because he found no genuine dispute of material fact, the administrative
     judge did not hold the appellant’s requested hearing, id. at 2, and instead
     adjudicated the appeal on the written record, denying the appellant’s request for
     corrective action under VEOA, IAF, Tab 22, Initial Decision (ID).             In his
     timely-filed petition for review, the appellant alleged that the administrative
     judge was biased against him and improperly denied his right to a hearing.
     Petition for Review (PFR) File, Tab 1 at 4-16. The appellant also claims that the
                                                                                         3

     administrative judge erroneously determined that he is not entitled to priority
     placement in the selection process and includes with his petition for review a
     copy of his October 2009 Basic Eligibility Rating Sheet for a different position.
     Id. at 16-19. The agency responded to the appellant’s petition for review and the
     appellant replied to the agency’s response. PFR File, Tabs 2, 4.
¶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).              By its terms, vacancy
     announcement HHS-CDC-OD-13-883025 was open to all United States citizens
     and the agency indicated therein that it had concurrently issued another vacancy
     announcement, number HHS-CDC-OM-13-883005, for the same position under
     merit promotion procedures. IAF, Tab 6 at 56. The agency specifically advised
     applicants that they must apply separately for each announcement in order to be
     considered under both procedures.        Id.    The record does not reflect that the
     appellant   applied   for    the   concurrent   internal   merit   promotion   vacancy
     announcement.
¶5        The record shows that the agency requested candidates for GS-14 Public
     Health Advisor vacancies in Malawi, Mozambique, Nigeria, South Africa, and
     Zambia. Id., Tab 6 at 41-55. The agency filled the positions in Nigeria, South
     Africa, and Zambia using the concurrent merit promotion announcement, HHS-
     CDC-OM-13-883005.           ID at 7; see IAF, Tab 19 at 21.        An agency has the
     discretion to fill a vacant position by any authorized method; the Board’s
     reviewing court has held that there is nothing to prevent an agency from soliciting
     applications simultaneously from both public and merit promotion applicants and
     filling the vacant position from the merit promotion certificate. See Joseph v.
     Federal Trade Commission, 505 F.3d 1380, 1384 (Fed. Cir. 2007) (finding that
     the agency did not violate VEOA by conducting “simultaneous parallel
     procedures under the competitive examination and merit promotion processes to
                                                                                     4

     fill the same position” and selecting someone other than the veteran under the
     merit promotion process); see also Dean v. Consumer Product Safety
     Commission, 108 M.S.P.R. 137, ¶ 11 (2008).
¶6        The record also reflects that the agency did not fill the position in
     Mozambique. ID at 7-8; IAF, Tab 19 at 21. There is no harm, and therefore no
     VEOA violation, when, as here, an agency decides not to fill a particular vacancy.
     Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶ 14, aff’d,
     544 F. App’x 976 (Fed. Cir. 2013) (unpublished); cf., Scharein v. Department of
     the Army, 91 M.S.P.R. 329, ¶ 10 (2002) (the agency is not required to fill a
     particular vacancy and does not violate an applicant’s veterans’ preference rights
     when it cancels a vacancy announcement and does not make a selection), aff’d,
     No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
¶7        Of the selections at issue, the record reflects that agency filled only the
     position in Malawi using the vacancy announcement for which the appellant
     applied, HHS-CDC-OD-13-883025. IAF, Tab 19 at 21. However, the agency
     found that the appellant lacked the requisite qualifications for the position. Id.
     at 16-20.    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.
¶8        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
                                                                                        5

      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. Id. 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).
¶9         In his application for the position, the appellant indicated that GS-14 was
      the lowest grade he would accept.      IAF, Tab 6 at 4-5.     The human relations
      specialist responsible for making qualification determinations on the agency’s
      behalf provided a sworn statement in which she described her comprehensive
      review of the appellant’s application and explained her resulting determination
      that the appellant lacked the requisite 1 year of specialized experience at or equal
      to the GS-13 level and was therefore, as noted above, not qualified for the
      position. ID at 3, IAF, Tab 19 at 16-20; see IAF, Tab 6 at 58. The administrative
      judge found that the agency established by preponderant evidence that it did not
      improperly omit, overlook, or exclude any of the appellant’s stated experiences or
      work history in assessing his qualifications for the position.       ID at 7.   The
      appellant identifies nothing on review to indicate that the administrative judge
      erred in making this determination. Moreover, 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). For the reasons described above, we
      agree with the administrative judge that there is no genuine issue of material fact
      and find that the administrative judge properly denied the appellant’s request for
      corrective action on the written record without holding a hearing.
¶10        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
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      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
      in which he explicitly explained why he feels that the administrative judge was
      biased against him. IAF, Tab 13. 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 17.     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.
¶11         Lastly, we note that the appellant has identified no authority that would
      provide him with eligibility for priority placement or require the agency, as the
      appellant contends, to place him “ahead of virtually all other candidates for any
      subsequent position.” PFR File, Tab 1 at 16-17. Regarding the document the
      appellant submits on review, PFR File, Tab 1 at 19, under 5 C.F.R. § 1201.115,
      the Board will not consider evidence submitted for the first time with the petition
      for review absent a showing that it was unavailable before the record was closed
      despite the party's due diligence. The appellant fails to make such a showing and
      the document, which is dated long before the close of the record in this matter, is
      not relevant to the issues in this appeal.
                                                                                  7

                 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
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
                                                                           8

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.
