                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0480-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 4, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Susan M. Andorfer, Esquire, James E. Simpson, and Sara M. Klayton,
             Esquire, Washington, D.C., for the agency.

           Robert E. Nerthling, II, Esquire, 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 corrective action under the Veterans Employment Opportunities Act


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 this
     appeal, 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).

                                       BACKGROUND
¶2         The appellant submitted his application for Vacancy Announcement
     HHS-SAMHSA-DE-15-1268057, for the position of Lead Public Health Advisor,
     GS-0685-14. Initial Appeal File (IAF), Tab 12 at 14-47. However, prior to the
     closing date of the announcement, the agency cancelled the vacancy because the
     vacancy being advertised “did not in fact exist.” Id. at 7, 52. After timely filing
     a complaint and exhausting his remedies with the Department of Labor, the
     appellant filed the instant appeal challenging his nonselection under VEOA and
     requested a hearing. 2 IAF, Tab 1.


     2
       After filing this appeal, the appellant filed a motion alleging that his nonselection
     constituted a violation of the Uniformed Services Employment and Reemployment
     Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333). IAF, Tab 5. This claim was
     docketed as a separate appeal, Jones v. Department of Health & Human Services, MSPB
     Docket No. DE-4324-15-0496-I-1, which is currently pending before the
     administrative judge.
                                                                                     3

¶3         The administrative judge found that there was no genuine dispute of
     material fact and thus notified the parties that she would decide the appeal
     without a hearing. IAF, Tab 15. She therefore issued her decision based upon the
     parties’ written submissions.      IAF, Tab 18, Initial Decision (ID) at 2.
     Specifically, she denied corrective action, finding that, because the agency
     did not make a selection, the appellant’s VEOA rights were not violated.       ID
     at 3-4. The appellant has filed a timely petition for review in which he argues
     that: (1) he should have been entitled to a hearing; (2) the administrative judge
     was biased in favor of the agency; (3) the agency discriminated against him based
     upon age; and (4) the agency may have been untruthful in stating that it did not
     make a selection. Petition for Review (PFR) File, Tab 1 at 6, 8, 12, 15. The
     agency has responded in opposition to the appellant’s petition for review. PFR
     File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4         First, we find that the administrative judge properly decided the appeal
     based upon the written record. The Board’s regulations permit the adjudication
     of a VEOA claim on the merits without a hearing. 5 C.F.R. § 1208.23(b). The
     Board has interpreted this regulation as allowing an administrative judge to deny
     a hearing request in a VEOA case when there is no genuine dispute of material
     fact and one party must prevail as a matter of law. Williamson v. U.S. Postal
     Service, 106 M.S.P.R. 502, ¶ 8 (2007). Here, the agency cancelled the vacancy
     announcement that is the subject of the appellant’s VEOA challenge and never
     made a selection. IAF, Tab 12 at 7, 52. The Board has held that it is within the
     agency’s authority and does not violate an appellant’s veterans’ preference rights
     to cancel a vacancy announcement before filling the vacancy. See, e.g., Graves v.
     Department of Veterans Affairs, 114 M.S.P.R. 245, ¶ 29 (2010). Thus, the agency
                                                                                              4

     must prevail as a matter of law and the administrative judge properly decided this
     appeal without a hearing. 3
¶5         Next, we find that the appellant              has not demonstrated that the
     administrative judge was biased. In making a claim of bias or prejudice against
     an administrative judge, a party must overcome the presumption of honesty and
     integrity that accompanies administrative adjudicators. See Oliver v. Department
     of Transportation, 1 M.S.P.R. 382, 386 (1980).             The appellant’s conclusory
     allegations do not meet this heavy burden. See Asatov v. Agency for International
     Development, 119 M.S.P.R. 692, ¶ 14 (2013) (finding that, where the record
     merely reflected the appellant’s dissatisfaction with the administrative judge’s
     adjudicatory rulings in his VEOA appeal, he did not establish administrative
     judge bias), overruled on other grounds by Dean v. Department of Labor,
     122 M.S.P.R. 276 (2015).
¶6         We also find that the appellant’s claim of age discrimination does not
     provide a basis for disturbing the initial decision because the Board lacks
     jurisdiction to decide claims of age discrimination in a pure VEOA appeal.
     Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 18 (2006).                 The
     appellant’s   remaining     arguments    constitute    mere    disagreement     with   the
     administrative judge’s findings and conclusions and thus do not provide a basis

     3
       The appellant generally asserts on review that the agency may have been untruthful in
     its assertion that it did not make a selection. PFR File, Tab 1 at 15. However, he
     did not present this assertion below and has not shown that it is based upon new and
     material evidence. Thus, we do not consider it. See Avansino v. U.S. Postal Service,
     3 M.S.P.R. 211, 214 (1980) (the Board will not consider evidence submitted for the first
     time on review absent a showing that it was unavailable before the record closed below
     despite the party’s due diligence); 5 C.F.R. § 1201.115(d). Furthermore, even if we did
     consider this assertion, it would not provide a basis for remanding the appeal for a
     hearing. This general assertion does not constitute the type of evidence or argument
     that would support a finding of a genuine dispute of material fact entitling the appellant
     to a hearing. See Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009)
     (a factual dispute is genuine if 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).
                                                                                  5

for disturbing the initial decision. Weaver v. Department of the Navy, 2 M.S.P.R.
129, 133–34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).

                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 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 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
                                                                                  6

for Merit Systems Protection Board appellants before the Federal Circuit. 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.
