                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0048-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 3, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

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

           Kathleen Mee, 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. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        In March 2014, the agency issued, under both its delegated examining (DE)
     and merit promotion (MP) authorities, vacancy announcements HHS-OASH-DE-
     XX-XXXXXXX and HHS-OASH-MP-14-1078194, for the position of Public Health
     Advisor (PHA), in the Office of the Assistant Secretary for Health (OASH),
     located in Atlanta, Georgia. Initial Appeal File (IAF), Tab 4, at 8-13, 127-33.
     The appellant, a preference-eligible veteran, applied for the position under the DE
     announcement and was afforded the appropriate veterans’ preference. IAF, Tab 4
     at 15-44, 48.      The appellant was found qualified for the PHA position at the
     GS-13 grade level and his application, along with those of the other qualified
     applicants (under the DE and MP certificates at both the GS-12 and GS-13 grade
     levels), and was referred to the selecting official, the OASH Regional Health
     Administrator.      See IAF, Tab 4 at 50, 55-63, 135-60.        The appellant was
     subsequently advised that he was not selected for the PHA position. IAF, Tab 4,
     Subtab 2f at 53.
¶3        After exhausting his administrative remedies with the Department of Labor,
     the appellant filed this appeal and requested a hearing. IAF, Tab 1 at 2, 8. On
     appeal, the appellant argued that agency personnel failed to properly evaluate his
                                                                                       3

     application, that he was qualified for the PHA position, and that the selection
     process was unlawful.     IAF, Tabs 1, 8-9.     In response to the administrative
     judge’s order to clarify whether the PHA position was filled, the agency
     submitted a sworn declaration from the Regional Health Administrator stating
     that she did not select anyone for either of the jobs listed in the vacancy
     announcements. IAF, Tab 6 at 7. The administrative judge notified the parties
     that he found no genuine dispute of material fact requiring a hearing, advised
     them of the applicable law and burdens of proof, and issued a close of the record
     order allowing the parties until December 19, 2014, to supplement the record.
     IAF, Tab 7. The appellant responded, and the administrative judge found, based
     upon the undisputed facts, that the agency did not violate any of the appellant’s
     statutory or regulatory veterans’ preference rights in not making a selection under
     either vacancy announcement. IAF, Tabs 4, 6, 8-9; IAF, Tab 10, Initial Decision
     (ID) at 5.
¶4         The appellant has filed a petition for review arguing, in pertinent part, that
     he was improperly denied a hearing and that the agency violated his “VEOA
     rights.” Petition for Review (PFR) File, Tab 1 at 5, Tab 4. The appellant also
     refers to prior appeals he filed against the agency and he argues that there is a
     pattern and practice of circumventing his and others’ veterans’ rights. PFR File,
     Tab 1 at 6-13. The appellant asks the Board to reverse the initial decision and
     remand his appeal for a hearing.       PFR File, Tab 1 at 13-15.       The agency
     responded in opposition to the petition, and the appellant replied reasserting his
     argument that he was improperly denied a hearing; arguing that he was qualified
     for the position and entitled to priority placement; and that the agency improperly
     closed the vacancy announcement without selecting him or providing a basis for
     not filling the position. PFR File, Tab 2, Tab 4 at 9-13.
¶5         To be entitled to relief under the Veterans Employment Opportunities Act
     of 1998 (VEOA), the appellant must prove by preponderant evidence that the
     agency’s action violated one or more of his statutory or regulatory veterans’
                                                                                         4

     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). 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. 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. Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶ 14 (2006). 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
     should that party’s evidence be credited. Id.
¶6        Here, the appellant’s argument that the agency violated his veterans’ rights
     under VEOA is a dispute of law, not a genuine dispute of material fact that
     warrants a hearing. PFR File, Tab 1 at 4. It is undisputed that the agency did not
     select any candidates who applied under either the DE or MP vacancy
     announcements. ID at 2; IAF, Tab 6 at 7. The Board has recognized that there is
     no statute or regulation that requires an agency to make a selection for a vacancy
     announcement; to the contrary, the Board has observed that an agency can even
     cancel or repost a vacancy announcement without making a selection. Ward v.
     Office of Personnel Management, 79 M.S.P.R. 530, 534 (1998) (an agency has
     discretion as to which sources it will use to fill its positions and may select or not
     select from the applicants who respond to a vacancy announcement), aff’d,
     194 F.3d 1333 (Fed. Cir. 1999) (Table); see Abell v. Department of the Navy,
     343 F.3d 1378, 1384 (Fed. Cir. 2003) (finding that “[a]n agency may cancel a
     vacancy announcement for any reason that is not contrary to law”). Although the
     appellant argues that he was qualified for the positions, we agree with the
     administrative judge’s finding that the agency’s decision not to select anyone for
                                                                                       5

     the PHA position under these vacancy announcements did not violate the
     appellant’s rights under any statute or regulation related to veterans’ preference.
     ID at 5.
¶7         Accordingly, because the unrebutted record evidence reflects that the
     agency did not fill the PHA position, see IAF, Tab 6 at 7, 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.    The appellant’s remaining arguments based on
     review are not dispositive and present no basis for disturbing the initial decision.
     We therefore deny the appellant’s 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
                                                                                6

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.
