                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBERS
                  Appellant,                         DE-3330-14-0294-I-1
                                                     DE-3330-14-0295-I-1
                  v.                                 DE-3330-14-0302-I-1

     DEPARTMENT OF HEALTH AND
       HUMAN SERVICES,
                 Agency.                             DATE: April 2, 2015



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

           Marie T. Ransley, 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 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;


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        This appeal involves three separate VEOA nonselection actions which the
     appellant filed and the administrative judge joined without objection: (1) MSPB
     Docket No. DE-3330-14-0294-I-1 (0294); (2) MSPB Docket No. DE-3330-14-
     0295-I-1 (0295); and (3) MSPB Docket No. DE-3330-14-0302-I-1 (0302). 0294,
     Initial Appeal File (IAF), Tabs 1, 12; 0295, IAF, Tabs 1, 11; 0302, IAF, Tabs 1,
     9; see 5 C.F.R. § 1201.36(a)(2).     The appellant, a 5-point preference-eligible
     veteran, applied for three different positions with the agency’s Center for Disease
     Control under the following delegated authority vacancy announcements, open to
     all United States citizens: (1) HHS-CDC-D3-14-1053427, Public Health Advisor,
     GS-13, 0294, IAF, Tab 5 at 20, 64-70; (2) HHS-CDC-D3-14-1049139, Public
     Health Advisor, GS-12, 0295, IAF, Tab 5 at 17, 116-23; and (3) HHS-CDC-D4-
     XX-XXXXXXX, Public Health Analyst, GS-15, 0302, IAF, Tab 5 at 12, 63-69. Each
     of those announcements indicated that the agency had concurrently issued another
     vacancy announcement bearing a different number for the same position under
     merit promotion procedures and specifically advised applicants that they must
     apply separately for each announcement in order to be considered under both
                                                                                      3

     procedures. 0294, IAF, Tab 5 at 65; 0295, IAF, Tab 5 at 117; 0302, IAF, Tab 5 at
     63. 2    It is undisputed that the appellant only applied for the vacancy
     announcements issued under the agency’s delegated authority and, therefore, he
     did not apply for those issued under merit promotion procedures. See 0294, IAF,
     Tab 37, Initial Decision (ID) at 2-3. The agency made its selections for all three
     positions through the concurrent vacancy announcements it issued under merit
     promotion procedures, for which the appellant did not apply. 0294, IAF, Tab 30
     at 27, 30, 34.
¶3           The appellant timely filed complaints with the Department of Labor (DOL)
     exhausting his administrative remedies with regard to each of the three vacancy
     announcements for which he applied.        After DOL notified him that it had
     completed its investigation into his claims that the agency failed to properly
     consider his veterans’ preference, the appellant timely filed the instant Board
     appeals. 0294, IAF, Tab 1 at 4, 9; 0295, IAF, Tab 1 at 4, 9; 0302, IAF, Tab 1 at
     4, 9. Because he found no genuine dispute of material fact, the administrative
     judge denied each of the appellant’s requests for corrective action without
     holding a hearing. ID at 2. Specifically, the administrative judge found that in
     each instance, because the record established that the agency lawfully selected its
     appointees through the internal merit promotion vacancy announcements under
     each position and not from the delegated authority vacancy announcements for
     which the appellant applied, the agency did not violate his rights under VEOA.
     ID at 5-6.
¶4           In his timely-filed petition for review, the appellant argues that the
     administrative judge was biased against him. Petition for Review (PFR) File, Tab
     1 at 4, 6-10. The appellant also challenges the administrative judge’s decision to


     2
       The announcement numbers for the merit promotion vacancy announcements involved
     in this matter are respectively: (1) HHS-CDC-M3-14-1053286, 0294, IAF, Tab 5 at 65;
     (2) HHS-CDC-M3-14-1049142, 0295, IAF, Tab 5 at 117; and (3) HHS-CDC-M4-14-
     1051623, 0302, IAF, Tab 5 at 117.
                                                                                      4

     forego a hearing and decide the appeal on the written record. Id. at 10-15. The
     agency responded in opposition to the appellant’s petition and the appellant
     replied to the agency’s response. PFR File, Tabs 2, 4.
¶5        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).              We agree with the
     administrative judge that the appellant has not shown that the agency violated his
     veterans’ preference rights in this case when it made its selections from the merit
     promotion certificates issued pursuant to the merit promotion announcements, for
     which he did not apply. An agency has the discretion to fill a vacant position by
     any authorized method, and the Board’s reviewing court has held that there is
     nothing preventing an agency from soliciting applications from the public and
     from merit promotion applicants simultaneously 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 fill the same position” and
     selecting someone other than the veteran under the merit promotion process);
     Dean v. Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008).
¶6        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).   Because the unrebutted record reflects that the agency filled all the
     positions at issue through the merit promotion process, ID at 5; see 0294, IAF,
     Tab 30 at 27, 30, 34, 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.
                                                                                     5

¶7           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
     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.     0294, IAF, Tab 21. 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.      0294, IAF, Tab 25.      The
     appellant repeats his arguments on review. PFR File, Tab 1 at 6-10, Tab 4 at
     6-10.     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.

                      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.
                                                                                  6

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
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.
