                               UNITED STATES OF AMERICA
                            MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                                DOCKET NUMBER
                  Appellant,                              DE-3330-14-0421-I-1

                    v.

     DEPARTMENT OF HEALTH AND                             DATE: April 9, 2015
       HUMAN SERVICES,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

           Sara M. Klayton, 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   his        request   for   corrective   action   under   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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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        The appellant, a 5-point (TP) preference-eligible veteran, applied for a
     GS-13 Public Health Advisor position under delegated examining vacancy
     announcement HHS-SAMHSA-DE-14-1085367, which was open to United States
     citizens. Initial Appeal File (IAF), Tab 4 at 27-66. The agency announced its
     intention to fill one vacancy and informed the applicants of a separate merit
     promotion announcement by stating that:
           This vacancy is also being announced concurrently with vacancy
           announcement      HHS-SAMHSA-MP-1085273         under    merit
           promotion procedures. Please review that announcement to see if
           you are eligible for consideration under merit promotion
           procedures. NOTE: Applicants must apply separately for each
           announcement in order to be considered.
     Id. at 59. It is undisputed that the appellant applied only under the delegated
     examining announcement and that the agency adjudicated his TP veterans’
     preference in processing his application. IAF, Tab 20, Initial Decision (ID) at 6.
¶3        In the delegated examining announcement, the agency informed applicants
     that it would use the category rating procedure to rank and select eligible
                                                                                        3

     candidates and that qualified candidates would be assigned to the following
     categories: Best Qualified, Well Qualified, and Qualified. IAF, Tab 4 at 62-63.
     The agency also explained that it would apply veterans’ preference by placing
     preference eligibles at the top of their assigned category and considering them
     before nonpreference eligibles in that category. Id. at 63. It is undisputed that
     the human resources specialist who reviewed the appellant’s application package
     rated him ineligible and did not refer him to the selecting official. ID at 6; IAF,
     Tab 4 at 16.
¶4        After exhausting his administrative remedies before the Department of
     Labor (DOL), the appellant timely filed an appeal alleging that the agency
     violated his veterans’ preference rights in not selecting him for the GS-13 Public
     Health Advisor position under vacancy announcement HHS-SAMHSA-DE-14-
     1085367.       IAF, Tab 1.   On appeal, the appellant argued that the agency’s
     selection process violated his veterans’ preference rights by “not fairly testing the
     applicants” and by not crediting his military experience in violation of 5 U.S.C.
     § 3311. IAF, Tab 1 at 5. The appellant also argued that the agency may have
     used “one or more Prohibited Personnel Practices” in violation of 5 U.S.C.
     § 2302. Id. In support of his appeal, the appellant submitted a copy of the DOL
     file closure letter and the notice he received from the agency informing him that
     the agency adjudicated his 5-point (TP) veterans’ preference but he was ineligible
     for the Public Health Advisor GS-13 position because he did not meet the
     minimum requirements. IAF, Tab 1 at 7-8.
¶5        The administrative judge found that the appellant established jurisdiction
     over his appeal pursuant to 5 U.S.C. § 3330a with respect to the issues that he
     exhausted before DOL, and “that within the ambit of issues raised with DOL is
     the appellant’s allegation that the agency failed to properly credit his experience
                                                                                             4

     in violation of 5 U.S.C. § 3311.” 2 IAF, Tab 9 at 3. The administrative judge
     ordered the agency to submit proof that it properly credited the appellant’s
     experience as required by 5 U.S.C. § 3311. IAF, Tab 11 at 1. The administrative
     judge also ordered the appellant to identify any material facts in dispute. Id. at 2.
     The parties responded, and the administrative judge issued an order finding no
     genuine issues of material facts in dispute and allowing the parties to submit
     additional evidence and argument before the record closed. IAF, Tabs 12-13, 15,
     17.
¶6         The agency submitted documentation showing that it filled the Public
     Health Analyst position by selecting a candidate from the non-competitive
     referral list issued under the merit-promotion vacancy announcement.                 IAF,
     Tab 15 at 16. The agency also submitted the declaration of a human resources
     specialist swearing under the penalty of perjury that she reviewed all of the
     appellant’s application materials, including his resume, and determined that he
     was ineligible for the position because he lacked the required specialized
     experience in substance abuse treatment delivery systems or homeless services. 3


     2
        The administrative judge found that he lacked jurisdiction over the fo llowing
     allegations that the appellant failed to exhaust at DOL. Specifically, his allegation that
     the agency failed to maintain a system that fairly tests the relative capacity and fitness
     of the applicants sought in violation of 5 U.S.C. § 3304(a)(1); and his allegation that
     the agency’s determination was the product of vio lations of 5 U.S.C. § 2302(b)(6), and
     thereby violated an unspecified veterans’ preference right unrecognized by VEOA. ID
     at 4.
     3
       As relevant to the instant appeal, the GS-13 position required the following
     specialized experience:
           Must have one year of specialized experience equivalent to the GS-12
           level in the Federal service. Examples of specialized experience includes:
           Experience working with substance abuse treatment delivery systems, and
           homeless services including, but not limited to, public, private for-profit,
           and private non-profit organizations responsible for p lanning,
           implementing and evaluating early intervention, treatment housing and
           recovery support services for individuals with substance abuse disorders
           and co-occurring disorders. Monitors grant and contract performance,
           provide technical assistance and conduct analyses of relevant
                                                                                       5

     IAF, Tab 15 at 12.       In response, the appellant disputed the declaration of the
     human resources specialist and stated that he would like to question her in a
     hearing. IAF, Tab 18 at 24. He also disputed that the agency made its selection
     from the merit promotion certificate. Id. He discussed his prior VEOA appeals
     and his alleged mistreatment due to “continued violations of his legal rights as a
     veteran.” Id. at 8-21. He also argued, among other things, that Board is required
     to examine merits of the agency’s action. Id. at 23.
¶7         The administrative judge issued an initial decision finding that the agency
     must prevail as a matter of law and denied the appellant’s request for corrective
     action under VEOA. ID at 1-2, 7. Based on his finding that there was no genuine
     dispute of material fact, the administrative judge exercised his authority to decide
     the appeal without a holding hearing.      ID at 1.    In reaching his decision, the
     administrative judge found that the human resources specialist considered all of
     the valuable experience in the appellant’s resume and application package in
     determining that the appellant was ineligible for the position.      ID at 6.   The
     administrative judge explained that VEOA does not empower the Board to
     consider the merits of the agency’s action, and that the Board’s role is limited to
     determining whether the agency improperly omitted, overlooked, or excluded a
     portion of the appellant’s experiences or work history in assessing his job
     qualifications.     ID at 4, 7.   The administrative judge further found that the
     appellant did not allege that the agency “omitted, overlooked, or excluded,” any
     part of his 30-page resume in determining that he lacked the required specialized
     experience. ID at 6.
¶8         The appellant filed a petition for review asking the Board to remand the
     appeal to the field office with instructions to hold a hearing for the agency to

           programmatic issues in order to recommend solutions for improve
           program outcomes. Must have experience leading a team, preparing and
           conducting presentations and preparing budget analyses and/or estimates
           of resource needs.
     IAF, Tab 4 at 61.
                                                                                       6

      explain its hiring decision. Petition for Review (PFR) File, Tab 1 at 21.        In
      support of his request, the appellant reasserts his argument that the agency has a
      pattern and practice of denying veterans’ legal rights and that he was improperly
      denied a hearing on the merits of his appeal because he identified disputed facts
      in his case. Id. at 7, 12, 21; IAF, Tab 18 at 23-25. The appellant also argues that
      hearings should be mandatory upon request. PFR File, Tab 1 at 6. The agency
      responded in opposition to the appellant’s petition. PFR File, Tab 3.
¶9         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). VEOA does not guarantee the
      preference-eligible appellant a position; the statute only affords him the right to
      compete for the position. See Abell v. Department of the Navy, 92 M.S.P.R. 397,
      400-01 (2002), aff’d, 343 F.3d 1378 (Fed. Cir. 2003). Contrary to the appellant’s
      arguments on review, 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). 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 these experiences in reaching its decision that the
      appellant was not qualified for a given position of employment. Miller v. Federal
      Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).
¶10        On review, the appellant reasserts the argument he made on appeal that the
      agency’s employees have lied and omitted qualifying information in assessing his
      qualifications for past vacancies. PFR File, Tab 1 at 12-13; IAF, Tab 18 at 23-24.
      In making this argument, the appellant still fails to identify any specific
      experience or work history in his application package that the agency improperly
                                                                                           7

      omitted or overlooked in assessing whether he had the specialized experience
      required under the vacancy announcement relevant in this appeal. Although the
      appellant generally disputes the declaration of the human resources specialist who
      reviewed his application package and determined that he was ineligible for the
      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. PFR File, Tab 1 at 16; see Miller, 121 M.S.P.R.
      88, ¶ 12.
¶11         The appellant also disputes that the agency hired from the merit promotion
      certificate because of the general “propensity of certain Agency Representatives
      and employees to lie.” PFR File, Tab 1 at 14; IAF, Tab 18 at 24. This alleged
      factual dispute is not material because its resolution could not affect the outcome
      of this appeal. 4 Regardless of whether the agency hired from the merit promotion
      certificate, the appellant did not prove that the agency violated one or more of his
      statutory or regulatory rights in its selection process under the delegated
      examining vacancy announcement for which he applied. See Dale, 102 M.S.P.R.
      646, ¶ 10.
¶12         The appellant also challenges the finding of the administrative judge that
      the Board lacks jurisdiction to consider the claims that he failed to exhaust with
      DOL, and he attempts to reassert some of those claims on review.            PFR File,
      Tab 1 at 19; ID at 4; see supra note 2. Although the Board uses a liberal pleading
      standard for allegations of veterans’ preference in a VEOA appeal, evidence of
      the exhaustion requirement is mandatory under the statute and is not subject to
      the     same      liberal     construction.      Mims      v.     Social      Security
      Administration, 120 M.S.P.R. 213, ¶ 24 (2013). Because the appellant offers no


      4
        We note that the appellant identified no evidence in the record casting any doubt on
      the veracity of the agency’s documentation showing that it filled the Public Health
      Analyst position by selecting a candidate from the non-competitive referral list issued
      under the merit-promotion vacancy announcement. See IAF, Tab 15 at 16.
                                                                                        8

      new proof that he satisfied the exhaustion requirement with respect to any
      additional claims on review, the Board has no jurisdiction to consider them. PFR
      File, Tab 1 at 19; ID at 4.
¶13         We have considered the appellant’s remaining arguments on review, most of
      which pertain to the agency’s actions in his prior VEOA appeals and his general
      disagreement with the administrative judge’s decision in this VEOA appeal, and
      we find no basis for disturbing the initial decision. PFR File, Tabs 1, 3. Because
      the appellant offers no new and material evidence that was unavailable before the
      record closed, and he has not shown that the administrative judge erroneously
      interpreted a statute or regulation, we deny the petition for review.

                       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
                                                                                9

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.
