       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              JOHN PAUL JONES, III,
                    Petitioner

                           v.

    DEPARTMENT OF HEALTH AND HUMAN
                SERVICES,
                 Respondent
           ______________________

                      2017-1908
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE-4324-16-0240-I-1.
                ______________________

               Decided: August 10, 2017
                ______________________

   JOHN PAUL JONES, III, Albuquerque, NM, pro se.

    DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
                ______________________
2                                               JONES   v. HHS



    Before PROST, Chief Judge, BRYSON and STOLL, Circuit
                         Judges.
PER CURIAM.
     John Paul Jones, III, petitions for review of a decision
of the Merit Systems Protection Board denying his claims
under the Veterans Employment Opportunity Act
(“VEOA”) and the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”). We
affirm.
                              I
     Mr. Jones served on active duty in the U.S. Army
during the Vietnam War. He is a preference-eligible
veteran. Since 2009, he has applied for numerous em-
ployment positions with the Department of Health and
Human Services (“HHS”). See Jones v. Price, No. 16-2234,
2017 WL 2556989, at *3 n.1 (10th Cir. June 13, 2017)
(noting “Mr. Jones’s contention that . . . he has applied for
over 90 positions with [HHS]”). Following his non-
selection for positions with that agency, he has frequently
filed claims that his non-selection violated the VEOA or
USERRA. See, e.g., Jones v. Dep’t of Health & Human
Servs., No. 2017-1353, 2017 WL 3016959 (Fed. Cir. July
17, 2017) (“Jones IX”) (non-selection was not a USERRA
violation); Jones v. Dep’t of Health & Human Servs., No.
2017-1055, 2017 WL 1279381 (Fed. Cir. Apr. 6, 2017)
(non-selection was not a USERRA or VEOA violation);
Jones v. Dep’t of Health & Human Servs., 834 F.3d 1361
(Fed. Cir. 2016) (“Jones VII”) (non-selection was not a
USERRA violation); Jones v. Dep’t of Health & Human
Servs., 655 F. App’x 819 (Fed. Cir. 2016) (non-selection
was not a USERRA violation); Jones v. Dep’t of Health &
Human Servs., 640 F. App’x 861 (Fed. Cir. 2016) (“Jones
V”) (non-selection was not a VEOA violation); Jones v.
Dep’t of Health & Human Servs., 618 F. App’x 1013 (Fed.
Cir. 2015) (non-selection was not a VEOA violation);
Jones v. Dep’t of Health & Human Servs., 544 F. App’x
JONES   v. HHS                                            3



976 (Fed. Cir. 2013) (“Jones III”) (failure to accord veter-
ans’ preference was harmless error regarding non-
selection; petitioner lacked standing regarding other
claims); Jones v. Dep’t of Health & Human Servs., 542 F.
App’x 912 (Fed. Cir. 2013) (non-selection was not a VEOA
violation); Jones v. Merit Sys. Protection Bd., 497 F. App’x
1 (Fed. Cir. 2012) (affirming Board decision to dismiss
VEOA claim against HHS as untimely).
    At issue here is Mr. Jones’s application for a Public
Health Advisor position with the Centers for Disease
Control and Prevention (“CDC”), an agency within HHS.
That position was advertised at the GS-12 or GS-13 level.
Mr. Jones applied only for the GS-13 level position.
    The vacancy announcement provided that in order to
qualify at the GS-13 level, the applicant “must have at
least one year of specialized experience at or equivalent to
the GS-12” level. The announcement explained that
specialized experience is “experience which is directly
related to the position which has equipped the applicant
with the particular knowledge, skills and abilities (KSAs)
to successfully perform the duties of the position to in-
clude experience reviewing, evaluating, and developing
public health program operations at the Federal, state, or
local level.”
    Applicants for the position were required to complete
a self-assessment questionnaire and provide a résumé
and supporting documentation. The questionnaire listed
approximately 20 criteria regarding experience that was
relevant to the position. The applicant was directed to
assign himself or herself the most appropriate rating for
each criterion. The ratings range from no education,
training, or experience to “expert.”
    The agency’s procedure upon receiving applications
for such positions is to score the questionnaire and place
qualifying applicants into one of three categories: Best
Qualified, Well Qualified, or Qualified. The agency then
4                                            JONES   v. HHS



considers the entire applications of those in the highest
category and determines whether an applicant is qualified
for the position. As part of that process, preference-
eligible veterans are placed first within each category.
    Mr. Jones submitted a completed questionnaire and
provided a 32-page, narrative-style résumé. In every
response to the questionnaire other than those questions
related to Spanish language proficiency, Mr. Jones rated
himself “expert.”
    A Human Resources Specialist reviewed many of the
applications. She mistakenly reversed the scoring rubric,
an error that affected more than one hundred applicants.
Due to that mistake, Mr. Jones was initially placed in the
Qualified category.
    The Supervisory Human Resources Specialist at HHS,
Kelly Mathis, realized that mistake. He rescored Mr.
Jones’s self-assessment questionnaire, which placed Mr.
Jones in the Best Qualified category. Mr. Mathis then
reviewed Mr. Jones’s other application materials. Mr.
Mathis concluded that Mr. Jones did not have the neces-
sary specialized experience for the position of Public
Health Advisor at the GS-13 level. Mr. Jones contested
that decision and eventually appealed to the Merit Sys-
tems Protection Board.
    During the time that Mr. Jones’s appeal was pending
before the Board, Mr. Jones was involved in a separate
Board proceeding before the same administrative judge.
In that separate proceeding, the administrative judge
terminated the merits hearing for contumacious conduct
on the part of Mr. Jones and decided the appeal on the
written submissions. See Jones IX, No. 2017-1353, 2017
WL 3016959, at *1.
   In the Board proceeding at issue in this case, Mr.
Jones moved to recuse the administrative judge. He
argued that the administrative judge’s finding of contu-
JONES   v. HHS                                          5



macious conduct in the separate proceeding showed that
the administrative judge was biased against him. The
administrative judge denied the motion.
    At the subsequent merits hearing, Mr. Jones provided
testimony from two witnesses, himself and Mr. Mathis.
The administrative judge denied Mr. Jones’s request to
have six other witnesses testify on the ground that their
testimony was irrelevant or immaterial. It appears that
Mr. Jones did not submit any exhibits.
    The administrative judge subsequently issued a deci-
sion denying Mr. Jones’s VEOA and USERRA claims.
The administrative judge found that the initial scoring
error did not constitute a violation of the VEOA. That
mistake was corrected, and Mr. Jones’s application was
reviewed under the proper procedure. The administrative
judge found credible Mr. Mathis’s testimony that he had
fully considered Mr. Jones’s experiences and work history
in determining that Mr. Jones was not qualified for the
position he had applied for. Based on that testimony, and
absent contrary evidence, the administrative judge con-
cluded that Mr. Jones had not satisfied his burden to
show a VEOA violation.
     The administrative judge also concluded that the evi-
dence did not support Mr. Jones’s claims of discrimination
and retaliation under USERRA. First, the administrative
judge concluded that Mr. Jones failed to establish that he
was qualified for the position. The administrative judge
credited Mr. Mathis’s testimony “regarding his methodical
approach to assessing whether [Mr. Jones] met the spe-
cialized experience requirement for the position, and [Mr.
Mathis’s] specific reasons why identified portions of [Mr.
Jones’s] application materials did not demonstrate that
th[o]se requirements were met.” The administrative
judge found that Mr. Mathis’s assessment was “well
supported by the documentary evidence in the record.” In
addition, the administrative judge “found compelling the
6                                            JONES   v. HHS



agency’s stated reason for its determination that Mr.
Jones was not qualified,” and found that the non-selection
“was not a pretext for discrimination or motivated by
retaliatory intent.” 1
    The administrative judge also addressed Mr. Jones’s
allegation that Mr. Mathis was motivated to retaliate
against Mr. Jones based on his status as a veteran. Mr.
Mathis was aware of Mr. Jones’s military service and
engagement in protected activity (i.e., Mr. Jones’s previ-
ous VEOA and USERRA claims against HHS) when Mr.
Mathis reviewed Mr. Jones’s application. In fact, Mr.
Mathis had testified on behalf of HHS in another proceed-
ing brought by Mr. Jones for non-selection regarding
another CDC job vacancy. In that proceeding, Mr. Mathis
testified that he failed to accord Mr. Jones veterans’
preference because Mr. Mathis believed that three years
of service was required to be preference-eligible. Mr.
Mathis was mistaken; Mr. Jones was entitled to veterans’
preference. See Jones III, 544 F. App’x at 978 (affirming
decision finding failure to afford preference was harmless
error because the vacancy was revoked and because Mr.
Jones was not sufficiently qualified). Mr. Jones presented
no evidence that Mr. Mathis acted in bad faith in commit-
ting that error, or in testifying about it.
    The administrative judge ultimately found “no evi-
dence that [Mr.] Mathis had any hostility toward veter-
ans.” In fact, the administrative judge noted that Mr.
Mathis was himself a U.S. Army veteran. The adminis-
trative judge also found Mr. Mathis’s testimony regarding


    1   The administrative judge noted that Mr. Jones
had not argued that the initial scoring mistake demon-
strated any discrimination or retaliation under USERRA.
The administrative judge also found that the initial
mistake would not support any such claims, as the mis-
take affected more than 100 applicants indiscriminately.
JONES   v. HHS                                                7



his assessment of Mr. Jones’s application credible and
supported by the record.
    After the administrative judge denied Mr. Jones’s
claims in an initial decision, Mr. Jones petitioned this
court for review on April 10, 2017. The administrative
judge’s initial decision became the final decision of the
Board on April 28, 2017, at which point Mr. Jones’s
petition became ripe for review.
                               II
     To obtain relief under the VEOA, a petitioner must
show that the potential employer violated his veterans’
preference rights. See 5 U.S.C. § 3311(2) (“preference
eligible is entitled to credit . . . for all experience material
to the position”); 5 C.F.R. § 302.302(d); Lazaro v. Dep’t of
Veterans Affairs, 666 F.3d 1316, 1318-19 (Fed. Cir. 2012)
(eligible veteran is entitled to credit for “all valuable
experience”). Mr. Jones does not point to any evidence
showing that his VEOA rights were violated in the course
of the agency’s selection process. Instead, he simply
challenges the Board’s finding that Mr. Mathis testified
credibly that he considered all of Mr. Jones’s relevant
experiences.
     We see no reason to question the Board’s credibility
finding. See Jones VII, 834 F.3d at 1368 (“witness credi-
bility determinations are virtually unreviewable”); Pope v.
U.S. Postal Serv., 114 F.3d 1144, 11149 (Fed. Cir. 1997);
accord Jones IX, No. 2017-1353, 2017 WL 3016959, at *3.
Mr. Jones points to the fact that, in a separate Board
proceeding, Mr. Mathis expressed the mistaken belief
that Mr. Jones was not entitled to veterans’ preference
credit because he did not serve for as much as three years.
Mr. Jones, however, does not contend that Mr. Mathis’s
mistaken testimony was the product of fabrication on his
part. Nor does Mr. Jones contend that Mr. Mathis failed
to accord him veterans’ preference credit in the selection
process underlying this proceeding. Even if there were a
8                                             JONES   v. HHS



question regarding Mr. Mathis’s credibility, Mr. Jones
does not point to any evidence to prove that his VEOA
rights were violated in the selection process.
    Mr. Jones also fails to show that the agency violated
his USERRA rights. To prove discrimination or retalia-
tion under USERRA, a petitioner must show that his
military service, or his assertion of USERRA rights, was a
“substantial or motivating factor” for the adverse action.
See 38 U.S.C. § 4311; Hayden v. Dep’t of Air Force, 812
F.3d 1351, 1357, 1363 (Fed. Cir. 2016); Sheehan v. Dep’t of
the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Both
types of claims are defeated if the potential employer
shows that the adverse action would have occurred re-
gardless of the petitioner’s military service. See Hayden,
812 F.3d at 1358, 1363; see also Sheehan, 240 F.3d at
1013.
    In his USERRA argument, Mr. Jones again attacks
Mr. Mathis’s credibility. We find no merit to that argu-
ment. That attack carries even less weight in the
USERRA context than in the VEOA context, because Mr.
Mathis is himself a veteran of the U.S. Army. As the
Board found, Mr. Jones points to “no evidence that [Mr.]
Mathis had any hostility toward veterans,” or that Mr.
Mathis would have discriminated against Mr. Jones on
that basis.
    Even apart from the Board’s credibility finding, sub-
stantial evidence supports the Board’s finding that Mr.
Jones lacked the necessary qualifications for the position
in question. Upon examining the vacancy announcement
and the application materials, the Board found that the
assessment that Mr. Jones lacked the necessary qualifica-
tions was “well supported by documentary evidence in the
record.” Mr. Jones does not challenge that finding or
point to anything in those materials that demonstrates
otherwise. That finding disposes of Mr. Jones’s discrimi-
nation and retaliation claims under USERRA, as it estab-
JONES   v. HHS                                             9



lishes that his non-selection was the result of his lack of
the qualifications required for the position, not the result
of discrimination against him on account of his military
service or retaliation for his assertion of USERRA rights.
    Mr. Jones also makes several evidentiary and proce-
dural arguments. He contends that the administrative
judge (1) “delet[ed] all [his] evidence from the efile sys-
tem,” Pet’r Br. at 1; (2) “den[ied] him his right to call any
witness,” id.; (3) did “not consider[] the relevant evidence
that was before her,” id.; (4) took too long to render a
decision, id. at 12-13; and (5) should have recused herself
for bias, id. at 1, 10.
    As to the first contention, there is no reason to believe
any evidence was deleted from the record. In his appen-
dix submitted to this court, Mr. Jones has included four
extra-record documents that he contends were deleted
from the record below. Nothing supports his claim that
those materials were introduced and then deleted from
the record. In any event, none of those documents are
relevant. 2
    Mr. Jones’s second contention—that he was denied
the right to call any witnesses—is false. Mr. Jones re-
quested that he be allowed to call Mr. Mathis and himself
as witnesses, and the administrative judge allowed both
to testify. The administrative judge denied Mr. Jones’s
request for six other witnesses for the reason that their
testimony was irrelevant. Mr. Jones provides no basis to
question that determination.
    Mr. Jones’s third argument incorrectly assumes that
the evidence he highlights was relevant. Mr. Jones
contends that the administrative judge “omitted from the


    2   As Mr. Jones admits, one of those documents is
dated February 17, 2017, after the record below was
closed.
10                                             JONES   v. HHS



decision the fact that [he] has been found ‘Best Qualified’
for at least 177+1 Public Health advisor positions since
2014.” Pet’r Br. at 12 (emphases omitted). Without
further explanation of the qualifications required for
those positions, that fact is not relevant to whether Mr.
Jones was qualified for the vacancy at issue in this case. 3
    Mr. Jones next argues that the eight-month delay be-
tween the hearing and the administrative judge’s decision
is a “dispositive issue.” It is not. As we explained previ-
ously in both Jones VII, 834 F.3d at 1368, and Jones IX,
No. 2017-1353, 2017 WL 3016959, at *4, there are no
statutory or regulatory time limits for the issuance of
such a decision.
    Finally, we find no error regarding the administrative
judge’s denial of Mr. Jones’s motion for recusal. Mr.
Jones points to the administrative judge’s termination of
the hearing in another of Mr. Jones’s suits based on
contumacious conduct. We held that the administrative
judge’s termination of that proceeding was not improper.
Jones IX, No. 2017-1353, 2017 WL 3016959, at *4 (termi-
nation occurred only after multiple warnings and Mr.
Jones’s “rude and disrespectful conduct which regularly
escalate[d] from advocacy to contumaciousness”). Fur-
thermore, “opinions held by judges as a result of what
they learned in earlier proceedings” are “not subject to
deprecatory characterization as ‘bias’ or ‘prejudice.’”


     3   If the evaluation process for those “177+1” posi-
tions is the same as that used by HHS for the vacancy at
issue, Mr. Jones would be placed in the “Best Qualified”
category based on his self-assessment, not the agency’s
assessment. See, e.g., Jones V, 640 F. App’x at 861 (af-
firming ultimate determination that Mr. Jones was not
qualified for vacancy, even though he was placed in “Best
Qualified” category based on his self-assessment, in which
“he rated himself as an expert in every listed category.”).
JONES   v. HHS                                            11



Liteky v. United States, 510 U.S. 540, 551 (1994). Mr.
Jones has not shown that the administrative judge dis-
played a “deep-seated . . . antagonism that would make
fair judgment impossible.” Bieber v. Dep’t of Army, 287
F.3d 1358, 1362 (Fed. Cir. 2002). Rather, the facts in this
case show that the administrative judge conducted a fair
hearing in which Mr. Jones was accorded an opportunity
to present evidence and argue his case. The administra-
tive judge ultimately issued a well-considered decision
disposing of each of his claims.
    Mr. Jones has presented many other arguments in his
petition based on evidence that is not part of the record
and matters other than the case before us on this appeal. 4
Because that evidence and those other matters are not
properly before us in this proceeding, we decline to con-
sider them.
   Each party shall bear its own costs for this appeal.
                      AFFIRMED




   4   Most of those facts pertain to other cases Mr.
Jones has brought against HHS.
