                               UNITED STATES OF AMERICA
                            MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                                DOCKET NUMBERS
                  Appellant,                              DE-3330-14-0236-I-1
                                                          DE-3330-14-0249-I-1
                    v.                                    DE-3330-14-0261-I-1

     DEPARTMENT OF HEALTH AND
       HUMAN SERVICES,
                 Agency.
                                                          DATE: March 26, 2015


              THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

           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   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 o f 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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         As the parties are familiar with the facts of this case, we are only reciting
     the background facts necessary to frame and decide the issues presented by the
     appellant on review. The appellant filed three separate VEOA appeals alleging
     that the Department of Health and Human Services (HHS), Centers for Disease
     Control and Prevention (CDC), violated his veterans’ preference rights by failing
     to select him for the Public Health Advisor positions advertised under the
     following individual delegated examining announcements open to all United
     States citizens: HHS-CDC-OD-14-1023700 (Vacancy ID 23700) (MSPB Docket
     No. DE-3330-14-0236-I-1 (0236)), HHS-CDC-D1-14-1019551 (Vacancy ID
     19551) (MSPB Docket No. DE-3330-14-0249-I-1 (0249)), and HHS-CDC-D4-14-
     1034969 (Vacancy ID 34969) (MSPB Docket No. DE-3330-14-0261-I-1 (0261)). 2
     0236, Initial Appeal File (IAF), Tab 1; 0249, IAF, Tab 1; 0261, IAF, Tab 1. The
     appeals were joined on June 10, 2014. 0236, IAF, Tab 13. The administrative

     2
      All three announcements were for two-year term appointments, none of which would
     confer career or career conditional status to an external candidate. 0236, Initial Appeal
     File (IAF), Tab 9 at 50; 0249, IAF, Tab 6 at 64; 0261, IAF, Tab 6 at 60.
                                                                                     3

     judge found that the Board has jurisdiction over the joined VEOA appeals
     pursuant to 5 U.S.C. § 3330a(d). 0236, Tab 34, Initial Decision (ID) at 1.
¶3        The following facts are undisputed unless otherwise noted.       The agency
     made no selection under Vacancy ID 19551 and Vacancy ID 34969, for which the
     appellant applied and was determined not qualified by the human resources
     specialists who reviewed his applications. 0249, IAF, Tab 6 at 27, 38, 43-62;
     0261, IAF, Tab 6 at 27, 31, 35-58; 0236, IAF, Tab 27 at 28. Concurrently with
     Vacancy ID 23700, the agency issued Merit Promotion Announcement
     HHS-CDC-OM-14-1023648 (Vacancy ID 23648) for the same Public Health
     Advisor position in the CDC’s Center for Global Health, Division of Global
     HIV/AIDS, and stated that applicants were required to apply separately for each
     announcement to be considered. 3 0236, IAF, Tab 9 at 50, 58. The appellant only
     applied for the position under Vacancy ID 23700, and the human resources
     specialists determined that he was not qualified because he lacked the specialized
     experience required in the job announcement. Id. at 30, 32, 35. The agency made
     a selection using the internal merit promotion process under Vacancy ID 23648,
     for which the appellant did not apply, and returned unused the delegated
     examining certificates issued under Vacancy ID 23700. 0236, IAF, Tab 9 at 21,
     24, 27, Tab 27 at 25.
¶4        The administrative judge ordered the appellant to provide evidence and
     argument to show the existence of a genuine dispute of material fact that
     warranted a hearing.    0236, IAF, Tab 22 at 2.      The appellant responded by
     submitting documents related to recruitments in prior unrelated Board appeals.
     0236, IAF, Tabs 28-30.     The agency responded by submitting affidavits from
     human resources specialists swearing under penalty of perjury that they reviewed
     the appellant’s application packages and determined, based on all of his paid and

     3
      Under Vacancy ID 23700 and Vacancy ID 23648, the agency advertised one GS-15
     Public Health Advisor position in each of the following locations: Ab idjan, Cote
     D’Ivoire; Maputo, Mozambique; and Kampala, Uganda. 3 0236, IAF, Tab 9 at 50, 58.
                                                                                          4

     unpaid experience, that he lacked the 1 year of specialized experience required
     for the announced positions and that no selections were made from any of the
     delegated examining certificates relevant in this appeal. 4 0236, IAF, Tab 27 at
     25-37.
¶5        The administrative judge issued an order finding no dispute of material fact
     based on his review of the parties’ submissions and allowed the parties an
     additional opportunity to supplement the record before it closed. 0236, IAF, Tab
     31 at 1. The appellant responded by arguing that he submitted evidence showing
     that the agency has a pattern and practice of violating the rights of veterans and
     that the agency’s representative “lied to the Court” in a prior Board appeal. 0236,
     IAF, Tab 33. He further argued that hearings were essential in his prior VEOA
     appeals and claimed that the administrative judge was biased. Id.
¶6        Based on the written record the administrative judge denied the appellant’s
     request for corrective action under VEOA, finding that preponderant evidence
     established that the agency did not improperly omit, overlook, or exclude a
     portion of the appellant’s experiences or work history in assessing his
     qualifications and finding him not qualified under Vacancy ID 23700. ID at 2, 4,
     7. The administrative judge further found that the agency submitted undisputed
     proof that the vacancies were either not filled or filled using the merit promotion
     process, under which the appellant did not apply, and did not violate his statutory
     or regulatory veterans’ preference rights. ID at 2, 4, 8-9.
¶7        The appellant has filed a petition for review reasserting the arguments he
     made on appeal in response to the order closing the record. 0236, Petition for
     Review (PFR) File, Tab 1; 0236, IAF, Tab 33.              The agency responded in

     4
       The human resources specialist, who reviewed the appellant’s application under
     Vacancy ID 23700, swore under penalty of perjury that the agency made selections
     internally, through the merit promotion process, for the positions in Cote D’Ivoire and
     Mozambique, leaving the position in Uganda unfilled. 0236, IAF, Tab 27 at 25. She
     also swore that no selection was made under the concurrent delegated examining unit
     certificate. I d.
                                                                                         5

     opposition to the appellant’s petition, and the appellant replied. PFR File, Tabs
     3-4.
¶8          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 re-evaluate 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).
¶9          Although the appellant alleges on review that the agency completely
     omitted qualifying information in violation of 5 U.S.C. § 3311, he fails to identify
     any specific experience or work history included in his applications, that the
     agency purportedly omitted in assessing whether he had the specialized
     experience required for the announced vacancies. PFR File, Tab 1 at 8-10. As
     previously noted, the agency submitted affidavits from the human resources
     specialists swearing under penalty of perjury that they adjudicated the appellant’s
     5-point veterans’ preference, reviewed all of the documents in his application
     packages, and found that he lacked the required 1 year of specialized experience
     for the positions. 0236, IAF, Tab 27 at 22-37. The human resources specialists
     also swore that they made no selections under the delegated examining
     certificates. Id. at 25, 28, 30, 34, 37. VEOA does not empower the Board to
     re-evaluate   the   merits   of   an   agency’s   ultimate   determination   that   a
     preference-eligible veteran is not qualified for a position with the agency.
     Miller, 121 M.S.P.R. 88, ¶ 12.     We find that the appellant had a full and fair
     opportunity to develop the record on the dispositive issues and to dispute the
     agency’s evidence and, despite his arguments to the contrary, there is no genuine
                                                                                             6

      dispute of material fact that would warrant a hearing. Moreover, the agency’s
      decision to make no selections under the delegated examining announcements did
      not deny the appellant his opportunity to compete for the positions, or otherwise
      violate his rights under a statute or regulation relating to veterans’ preference. 5
      See Dean v. Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11
      (2008). We agree with the administrative judge’s finding that the agency did not
      violate the appellant’s rights under VEOA with respect to the positions for which
      he applied.
¶10         As to the appellant’s nonselection under Vacancy ID No. 23700, the agency
      submitted documentation showing that the agency filled the announced position
      from the certificate issued under the concurrent merit promotion vacancy
      announcement. 6 0236, IAF, Tab 9 at 21, 24, 27, Tab 27 at 25. An agency that
      considers applicants under both competitive examination and merit promotion
      procedures may select a candidate under the merit promotion procedures.              See
      Joseph v. Federal Trade Commission, 505 F.3d 1380, 1383-84 (Fed. Cir. 2007).
      VEOA only gives the appellant the right to compete for vacant positions; the
      statute does not ensure that he will be successful. See Abell v. Department of the
      Navy, 343 F.3d 1378, 1383 (Fed. Cir. 2003). Accordingly, the agency’s selection
      under the merit promotion announcement, for which the appellant did not apply,
      provides no basis for relief under VEOA.

      5
        The Board denied the appellant’s request for corrective action in a prior VEOA
      appeal, despite finding that the agency failed to afford h im veterans’ preference in the
      ratin g process, because the agency made no selection under the vacancy announcements
      and therefore he would not have been selected. Jones v. Department of Health &
      Human Services, 119 M.S.P.R. 355, ¶ 14, aff’d, 544 F. App’x 976 (Fed. Cir. 2012).
      Consequently, the Board found no basis to find that the appellant suffered any harm as a
      result of the agency’s error failing to afford him veterans’ preference in the rating
      process for that position. I d.
      6
        The appellant’s argument that the agency’s representative and the former Director of
      the Delegated Examining Unit falsely claimed that no selection was made under a
      vacancy announcement in a prior VEOA appeal does not create a dispute of material
      fact in this appeal. PFR File, Tab 1 at 11-14.
                                                                                        7

¶11        We have considered the appellant’s remaining arguments on review, most of
      which pertain to the agency’s actions in the appellant’s prior VEOA appeals, and
      we find no basis for disturbing the initial decision.      Although the appellant
      alleged that the administrative judge was biased because of a ruling he made in a
      prior VEOA appeal involving the appellant, the administrative judge’s comments
      and actions in this appeal do not show “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)).     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. 5 C.F.R. § 1201.115(d).

                      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
                                                                                8

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.
