                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0378-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: March 8, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1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 the appellant’s 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The following facts are undisputed unless otherwise noted. The appellant
     exhausted his administrative remedies with the Department of Labor and timely
     filed an appeal alleging that the agency violated his veterans’ preference rights
     when it did not select him for a GS-15 Supervisory Public Health Advisor
     position   advertised   under   the   Merit   Promotion    Vacancy    Announcement
     HHS-CDC-M4-15-1332063 (Vacancy ID 1332063). 2 Initial Appeal File (IAF),
     Tab 1 at 9.     The agency selected a nonveteran candidate under Vacancy
     ID 1332063 for the supervisory position to “[s]erve as part of the management
     team for the Country Strategy & Management Branch within the Division of
     Global HIV/AIDS.”       IAF, Tab 9 at 21, Tab 11 at 17.        The agency’s human
     resources specialists reviewed the appellant’s application package and determined
     that the appellant was ineligible for the position because his résumé did not


     2
       The agency concurrently announced the position under merit promotion and delegated
     examining announcements. Initial Appeal File (IAF), Tab 11 at 16. The appellant filed
     a separate appeal of his nonselection under the delegated examining announcement. See
     Jones v. Department of Health & Human Services, MSPB Docket No. DE-3330-15-
     0377-I-1.
                                                                                               3

     demonstrate any experience in HIV/AIDS-related public health activity. 3 IAF,
     Tab 9 at 11 (Guice Declaration ¶ 4).
¶3           On appeal, the appellant challenged the agency’s determination that he was
     “ineligible,” arguing that the selection process was unlawful and that “the Agency
     never stated their reasoning as to why [he is] not qualified.” IAF, Tab 1 at 5.
     The appellant submitted a copy of the file closure letter that he received from the
     Department of Labor, notifying him of his Board appeal rights, and the notice he
     received stating that the agency reviewed his application and determined that he
     was not eligible for the position because he lacked the specialized experience
     described in the vacancy announcement. Id. at 7-9.
¶4           The administrative judge found that the Board has jurisdiction to adjudicate
     the appellant’s VEOA claim alleging that the agency violated his rights under a
     statute or regulation relating to veterans’ preference, and he informed the parties
     of the applicable law and the burdens of proof. 4             IAF, Tab 12 at 2-4.       The
     administrative judge ordered the appellant to submit evidence or argument
     supporting the merits of his appeal and showing any genuine dispute of material
     fact that required a hearing. IAF, Tab 12 at 1, 3-4. The parties responded, and
     the administrative judge denied the request for corrective action based on the

     3
         In the vacancy announcement, the agency specified that:
              Applicants must have at least one year of specialized experience at or
              equivalent to the GS-14 grade level in the Federal service as defined . . .
              [as] 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 which includes
              planning, development, implementation, evaluation and/or improvement
              of international public health activities associated with the elimination of
              HIV/AIDS or infectious diseases.
     IAF, Tab 11 at 18.
     4
      On appeal, the appellant also argued that the agency “may have also utilized one or
     more Prohibited Personnel Practices, which are violations of 5 [U.S.C.] § 2302”;
     however, the administrative judge properly found that the Board has no jurisdiction
     under VEOA to consider his claim of prohibited personnel practices. IAF, Tab 1 at 3,
     Tab 12 at 3.
                                                                                          4

     written record, finding that there was no genuine issue of material fact in dispute.
     IAF, Tabs 13-14, Tab 15, Initial Decision (ID) at 1.
¶5         In reaching his decision, the administrative judge found that veterans’
     preference does not apply in the merit-promotion selection process and that the
     appellant was required to meet the position’s minimum qualification standards.
     ID at 6.   The administrative judge considered the sworn declaration of the
     agency’s human resources specialist who reviewed the appellant’s qualifications
     and determined that he was ineligible because he lacked the required specialized
     experience in HIV/AIDS public health activity. 5       ID at 8.   The administrative
     judge found that the appellant offered no evidence that the agency improperly
     omitted, overlooked, or excluded a portion of his experience or work history in
     assessing his qualifications for the announced Supervisory Public Health Advisor
     position. ID at 8. The administrative judge also found that the appellant failed to
     create a genuine dispute of fact in response to the agency’s declaration or to
     provide any material evidence that the agency denied him a bona fide opportunity
     to compete. 6   ID at 10.   The appellant filed a petition for review arguing, in
     pertinent part, that the administrative judge improperly denied his right to a
     hearing, although he fails to identify a genuine dispute of material fact that
     requires a hearing in this appeal. Petition for Review (PFR) File, Tab 1 at 5-6, 8.


     5
       The human resources specialist swore in her declaration that a senior human resources
     specialist performed a second review of the appellant’s application package and agreed
     that the appellant was ineligible for the Supervisory Public Health Advisor position.
     IAF, Tab 9 at 12.
     6
       For example, the administrative judge considered the appellant’s argument that the
     Government has a policy to increase the number of veterans in the Federal workforce,
     but found that VEOA does not guarantee a preference eligible a position of
     employment. ID at 8. The administrative judge considered the appellant’s argument
     that the agency failed to properly credit his military experience but found that he
     offered no material evidence to support his argument. ID at 8. The administrative
     judge also considered the publications that the appellant cited about Federal hiring
     practices and the documents and cases he cited related to his other appeals, and found
     that all of it was immaterial to the vacancy announcement at issue here. ID at 9-10.
                                                                                              5

¶6         On review, the appellant reasserts the arguments he raised below that the
     agency failed to credit his qualifying experience as a Medical Corpsman in
     Vietnam and that the agency has a pattern and practice of circumventing veterans’
     rights. PFR File, Tab 1 at 9, 15-16, 20. The appellant also refers to his prior
     VEOA appeals and argues, inter alia, that hearings should be mandatory based on
     the findings stated in the Board’s January 2015 study titled, “The Impact of
     Recruitment Strategy on Fair and Open Competition for Federal Jobs.” Id. at 5-6,
     8-12, 20-22. The agency responded in opposition to the appellant’s petition for
     review. PFR File, Tab 3.
¶7         To be entitled to relief under VEOA, the appellant must prove by
     preponderant evidence that the agency’s action violated one or more of his
     statutory or regulatory veterans’ preference rights in its selection process.
     Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 10 (2010).                A
     preponderance of the evidence is that degree of relevant evidence that a
     reasonable person, considering the record as a whole, would accept as sufficient
     to find that a contested fact is more likely to be true than untrue.             5 C.F.R.
     § 1201.56(c)(2). Contrary to the appellant’s arguments on review, the Board has
     the authority to decide a VEOA appeal on the merits, without a hearing, where
     there is no genuine dispute of material fact and one party must prevail as a matter
     of law.     PFR File, Tab 1 at 8; see Haasz v. Department of Veterans Affairs,
     108 M.S.P.R. 349, ¶ 9 (2008). A factual dispute is “material” if, in light of the
     governing law, its resolution could affect the outcome.                   Waters-Lindo v.
     Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009).               A factual dispute is
     “genuine” when there is sufficient evidence favoring the party seeking an
     evidentiary hearing for the administrative judge to rule in favor of that party if he
     credits that party’s evidence. Id.
¶8         Preference-eligible veterans applying for Federal employment have the right
     “to credit for all experience material to the position for which examined,
     including    experience   gained     in   religious,   civic   welfare,     service,   and
                                                                                       6

      organizational activities, regardless of whether” such experience is unpaid.
      5 U.S.C. § 3311(2); see 5 C.F.R. § 302.302(d); see also Miller v. Federal Deposit
      Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014).        Although a preference
      eligible is entitled to have a broad range of experiences considered by the agency
      in reviewing his application for a position, how the agency adjudges and weighs
      those experiences is beyond the purview of the Board’s review in a VEOA appeal.
      Miller, 121 M.S.P.R. 88, ¶ 9.
¶9         The matter at issue in a VEOA appeal is not whether a particular agency
      action is proper and should be sustained.    Id.   The Board’s role is limited to
      assessing whether an agency considered all of an appellant’s “valuable
      experience” that is material to the position for which he has applied, and this
      assessment does not include a review of the weight the agency gave to a
      preference eligible’s prior experiences in determining that he was not qualified
      for a position of employment.     See Miller, 121 M.S.P.R. 88, ¶ 9.     That said,
      VEOA does not guarantee a preference eligible a position of employment.
      Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶¶ 9-10 (2002), aff’d,
      No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
¶10        Although the appellant disputes the agency’s determination that he lacked
      the required specialized experience for the Supervisory Public Health Advisor
      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.    See Miller, 121 M.S.P.R. 88, ¶ 12; see also Kirkendall v.
      Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009) (“Section 3311(2)
      guarantees that any experience of a veteran that is material to the position for
      which the veteran is examined will be credited.      At the very least, ‘credited’
      means ‘considered.’ ”).   Based on our review of the record, we find that the
      agency’s documentary evidence shows that its human resources specialists
      reviewed the appellant’s application and considered all of his relevant experience
                                                                                             7

      and work history, including his military service, in assessing his qualifications for
      the announced vacancy. IAF, Tab 9 at 10-12, 23-24, 26, 30, Tabs 10-11.
¶11           Two of the agency’s human resources specialists reviewed the appellant’s
      application package and determined that he was not qualified “solely because his
      application did not reflect the required one year of specialized experience.” IAF,
      Tab 9 at 12. Significantly, one of the human resources specialists who reviewed
      the appellant’s application noted that he “copied from the specialized experience
      statement” in the announcement and incorporated it into his résumé; however, his
      résumé did not actually show that he had any of the specialized experience in
      HIV/AIDS public health activities that was required for the announced position.
      Id. at 11.   Moreover, the appellant has not identified any experience or work
      history in his résumé concerning the “planning, development, implementation,
      evaluation, and/or improvement of international public health activities associated
      with the elimination of HIV/AIDS or infectious diseases” that the agency
      allegedly omitted, overlooked or excluded.         IAF, Tab 11 at 18.       Despite the
      appellant’s argument on review that the administrative judge unlawfully denied
      his right to a hearing, we find that the appellant failed to identify any genuine
      dispute of material fact that justified a hearing in this appeal. PFR File, Tab 1
      at 8.
¶12           We have considered the remaining arguments raised by the appellant on
      review, including but not limited to his analysis of the Board’s obligations to
      veterans, “The Odyssey” by Homer, and corruption within the Veterans
      Administration, and we find no basis for disturbing the initial decision denying
      his request for corrective action under VEOA. 7 PFR File, Tab 1 at 6-8, 23-25.


      7
        For example, the appellant argues, among other things, that he was “Best Qualified”
      for at least 176 positions but received no job offers. PFR File, Tab 1 at 26. He asks the
      Board to remand the appeal for a hearing so that he can ask the agency to explain its
      failure to hire him. PFR File, Tab 1 at 26. He also argues that the administrative judge
      failed to perform his judicial duties and examine the merits of the agency’s action or
      consider the evidence of the agency’s “‘pattern and practice’ of wrong-doing.” Id. at 8,
                                                                                   8

An agency is not required to hire a preference-eligible veteran, if, as was the case
here, it does not believe that the candidate is qualified or possesses the necessary
experience. See Abell v. Department of the Navy, 343 F.3d 1378, 1384 (Fed. Cir.
2003).     The appellant also raises a claim of age discrimination on review;
however, the Board has no authority to adjudicate discrimination claims in
connection with VEOA appeals. PFR File, Tab 1 at 23; see Ruffin v. Department
of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001). We therefore 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 U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                               U.S. 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 U.S. 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 U.S. Code, at our


13, 20, 23. We find, however, the appellant’s arguments fail to establish a basis for
granting his petition for review.
                                                                                  9

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
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.
