                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0042-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.

           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 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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 a VEOA appeal alleging that the Centers
     for Disease Control and Prevention (CDC), National Center for Emerging and
     Zoonotic Infectious Diseases, Division of Global Migration and Quarantine,
     Department of Health and Human Services (HHS), violated his veterans’
     preference rights by failing to select him for the GS-13 Public Health Advisor
     position advertised under delegated examining announcement HHS-CDC-D3-14-
     1173393 (Vacancy ID 1173393). Initial Appeal File (IAF), Tab 1. Concurrently
     with Vacancy ID 1173393, the agency issued merit promotion announcement
     HHS-CDC-M3-14-1173430 (Vacancy ID 1173430) for the same Public Health
     Advisor position, and stated that applicants were required to apply separately for
     each announcement to be considered. IAF, Tab 6 at 59, Tab 8 at 7. The appellant
     only applied for the position under Vacancy ID 1173393, and the human
     resources specialists determined that he was not qualified because he lacked the
                                                                                               3

     specialized experience set forth in the job announcement. 2 Id. at 16; IAF, Tab 9
     at 20-21, 24. The agency submitted documents showing that it made a selection
     using the internal merit promotion process under Vacancy ID 1173430, for which
     the appellant did not apply, and returned unused the delegated examining
     certificate issued under Vacancy ID 1173393. IAF, Tab 6 at 14, Tab 8 at 5, Tab 9
     at 21, 24-25.
¶3         The administrative judge issued an order finding no dispute of material fact
     and denied the appellant’s hearing request based on his review of the parties’
     submissions. 3 IAF, Tab 7 at 3. The administrative judge set a date for the close
     of the record and allowed the parties an additional opportunity to supplement the
     record before it closed. Id. at 2-4. The agency provided sworn statements from
     the human resources specialists who reviewed the appellant’s application package
     and declared under the penalty of perjury that the agency made its selection from
     the merit promotion announcement certificate and made no selection from the
     delegated examining announcement certificate. IAF, Tab 9 at 21, 24-25. The
     human resources specialists also swore that they considered all of the information
     in the appellant’s application package and determined that he lacked the 1 year of
     specialized experience required for the position. 4 IAF, Tab 9 at 20-21, 24.


     2
       The appellant does not dispute that the agency adjudicated his 5-point veterans’
     preference in processing his application. See IAF, Tab 6 at 16.
     3
       With regard to the appellant’s additional arguments on appeal, the admin istrative
     judge found that he had no jurisdiction under VEOA to consider the appellant’s claim
     that the agency committed various prohibited personnel practices. IAF, Tab 7 at 2. The
     administrative judge also found that he had no jurisdiction to determine whether the
     agency fairly tested the relative capacity and fitness of applicants. I d. at 3. Lastly, the
     administrative judge found that the appellant was not due any priority consideration as
     a result of his past VEOA cases. I d.
     4
       The human resources specialists determined that the appellant lacked the required
     specialized experience in “overseeing, evaluating and providing technical assistance on
     public health programs involving preparedness and emergency response or
     detection/prevention of infectious diseases equivalent to the GS-12 grade level in the
     Federal service.” IAF, Tab 9 at 20, 24; see IAF, Tab 5 at 60, 62.
                                                                                       4

¶4           The appellant responded by disputing that the agency made a selection from
     the merit promotion certificate and arguing that he is entitled to priority
     placement. IAF, Tab 10 at 6, 23. He argued that he submitted evidence showing
     that the agency has a pattern and practice of violating the rights of veterans and
     that HHS employees and the Department of Veterans Administration employees
     lie. IAF, Tab 10 at 22-24. He also argued that hearings were essential in his
     prior VEOA appeals, and he provided background information about his prior
     VEOA appeals and related documentation. IAF, Tabs 10-11.
¶5           Based on the written record, the administrative judge found that he had
     jurisdiction over the appeal pursuant to 5 U.S.C. § 3330a(a)(1)(A) and denied the
     appellant’s request for corrective action under VEOA, finding that the appellant
     failed to prove that the agency violated his veterans’ preference rights in this
     case.    IAF, Tab 12, Initial Decision (ID) at 1-2, 8.    The administrative judge
     found in pertinent part that the agency proved that it selected an applicant for the
     Public Health Advisor position from the merit promotion certificate.       ID at 6.
     With regard to the appellant’s application under the delegated examining
     announcement, the administrative judge found that the record showed that the
     agency credited all of the appellant’s valuable experience material in determining
     that he was not qualified. ID at 6. In reaching his decision, the administrative
     judge considered and rejected the appellant’s argument that he was entitled to
     priority consideration. ID at 8. The administrative judge further found that he
     lacked the authority to consider the agency’s past hiring actions in deciding this
     VEOA appeal, noting that the appellant did not allege that the same officials
     involved in those hiring decisions were involved in this case or made attempts to
     influence the selecting official in this case. ID at 8.
¶6           The appellant has filed a petition for review asking the Board to remand the
     appeal to the Denver Field Office with instructions to hold a hearing for the
     agency to explain its hiring decision and reasserting the arguments he made on
     appeal. Petition for Review (PFR) File, Tab 1; IAF, Tabs 4, 10. The agency has
                                                                                       5

     responded in opposition to the appellant’s petition for review, and the appellant
     has replied to the agency’s response. PFR File, Tabs 3-4.
¶7           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).
¶8           On review, the appellant fails to identify any valuable experience or work
     history included in the application he submitted under the delegated examining
     announcement that the agency purportedly omitted, overlooked, or excluded in
     assessing whether he had the specialized experience required for the position. As
     noted previously, the agency submitted declarations from human resources
     specialists swearing under penalty of perjury that they reviewed all of the
     documents in the appellant’s application package and found that he lacked the
     required 1 year of specialized experience for the announced position. IAF, Tab 9
     at 21, 24-25.       The human resources specialists also swore that they made no
     selection from the delegated examining certificate. Id. Although the appellant
     disputes their determination that he lacked the required experience, 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 13, 15; see Miller, 121 M.S.P.R. 88, ¶ 12.
     Moreover, the agency’s decision to make no selection from the certificate issued
     under the delegated examining announcement did not deny the appellant his
                                                                                                 6

      opportunity to compete for the position or otherwise violate his rights under a
      statute or regulation relating to veterans’ preference.          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 position for which he applied. ID at 8.
¶9         The appellant’s unfounded speculation that the agency may have lied about
      making a selection from the merit promotion certificate does not create a genuine
      dispute of material fact in this appeal.          PFR File, Tab 1 at 11-14.        A factual
      dispute is only genuine if there is sufficient evidence, favoring the party seeking
      the evidentiary hearing, for the administrative judge to rule in favor of that party
      should   he    credit    that   party’s    evidence.       See   Redd    v.     U.S.   Postal
      Service, 101 M.S.P.R. 182, ¶ 14 (2006).                   The record reflects that the
      administrative judge ordered the agency to submit proof that it filled the Public
      Health Analyst position at issue in this appeal with a candidate from the merit
      promotion certificate, the agency submitted the requested documents, and the
      administrative judge considered that evidence in making his decision. ID at 2, 5;
      IAF, Tab 7, Tab 8 at 5, Tab 9 at 21, 24-25. 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, he failed to
      identify any genuine dispute of material fact that would warrant a hearing.
¶10        The      agency’s     selection      under    the    concurrent    merit     promotion
      announcement, for which the appellant did not apply, provides no basis for relief
      under VEOA.      An agency has the discretion to fill a vacant position by any
      authorized method, and 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); Dean, 108 M.S.P.R. 137,
      ¶ 11. VEOA only gives the appellant the right to compete for vacant positions;
                                                                                        7

      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).
¶11         The appellant’s remaining arguments on review are not dispositive and
      present no basis for disturbing the initial decision denying his request for
      corrective action under VEOA.         PFR File, Tabs 1, 4.   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 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
      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
                                                                                8

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.
