                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0026-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.

           Shankar Ramamurthy, Esquire, Chicago, Illinois, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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        In April 2014, the agency sought applicants to fill a Public Health Advisor
     position. See Initial Appeal File (IAF), Tab 9 at 83-88. The agency posted the
     vacancy under both a delegated examining announcement, HHS-OASH-DE-14-
     1088956 (DE-56), and a merit promotion announcement, HHS-OASH-MP-14-
     1088936 (MP-36).     See id. at 83 (DE-56 announcement noting the concurrent
     MP-36 announcement and warning that applicants must apply to each separately
     to be considered for both). The appellant applied for the DE-56 announcement
     and was rated as among the “best qualified.” Id. at 41-48 (DE-56 certification of
     best qualified candidates, including the appellant), 53-82 (the appellant’s resume
     with reference to the DE-56 announcement); see id. at 51-52 (reflecting the
     appellant’s 5-point veterans’ preference).     However, it is undisputed that the
     appellant did not apply for the MP-36 announcement.
¶3        The selecting official reviewed the certificates of eligible applicants for
     both the DE-56 and MP-36 announcements. See id. at 98-108. He did not select
     the appellant or any other eligible applicant from the DE-56 certificate to fill the
     Public Health Advisor vacancy. Id. at 98-105. However, he did fill the vacancy
                                                                                               3

     with an eligible applicant from the MP-36 certificate.                    Id. at 106-08.
     Subsequently, the appellant filed a veterans’ preference complaint with the
     Department of Labor (DOL), but DOL closed its investigation without providing
     the appellant any relief. See IAF, Tab 1 at 8.
¶4           Citing VEOA, the appellant appealed his nonselection to the Board. Id. at
     3, 5.    The administrative judge found that the Board had jurisdiction over the
     appeal pursuant to 5 U.S.C. § 3330a but denied the appellant’s request for
     corrective action. IAF, Tab 16, Initial Decision (ID). The appellant has filed a
     petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
     a response, and the appellant has replied. PFR File, Tabs 3-4.
¶5           The appellant seems to argue that the administrative judge erred in finding
     that the agency did not violate any of his veterans’ preference rights by filling the
     Public Health Advisor vacancy through the MP-36 announcement. PFR File, Tab
     1 at 9-11.    He also asserts that the administrative judge erred in deciding his
     appeal on the written record, without granting his request for a hearing. Id. at
     6-8. We find no merit to either argument. 2
¶6           To be entitled to relief under VEOA, an appellant must prove by
     preponderant evidence that the agency’s selection violated one or more of his
     statutory or regulatory veterans’ preference rights.            Dale v. Department of
     Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006).               A preponderance of the
     evidence is that degree of relevant evidence that a reasonable person, considering

     2
       The appellant’s petition includes several additional assertions that do not provide a
     basis to disturb the initial decision. For example, the appellant, in an apparent attempt
     to establish a pattern of agency impropriety, directs our attention to emails he
     discovered from one agency official regarding unrelated job postings dated years before
     the vacancy at issue in this appeal. See PFR File, Tab 1 at 7-8 (referencing IAF, Tab 5
     at 8-9). He also generally criticizes the agency for not hiring h im for any one of at least
     37 other positions for which he applied; for expending significant legal fees defending
     against his various appeals; for its rate of veteran hiring; and for its response to recent
     events, such as natural disasters. I d. at 10-12. None of these assertions warrant further
     review in this, the appeal of his nonselection to the agency’s Public Health Advisor
     vacancy.
                                                                                            4

     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. § 1201.4(q).           The administrative
     judge found that the appellant failed to meet that burden, and we agree.
¶7         An agency has the discretion to fill a vacant position by any authorized
     method. Joseph v. Federal Trade Commission, 505 F.3d 1380, 1384 (Fed. Cir.
     2007).    There is nothing preventing the agency from doing what it did
     here-soliciting both delegated examining and merit promotion applicants
     simultaneously but only filling its vacancy from the merit promotion certificate.
     See id. (finding that the agency did not violate VEOA by conducting
     “simultaneous parallel procedures under the competitive examination and merit
     promotion processes to fill the same position” and selecting someone other than
     the veteran under the merit promotion process); Dean v. Consumer Product Safety
     Commission, 108 M.S.P.R. 137, ¶ 11 (2008). Accordingly, the appellant failed to
     show that the agency violated his veterans’ preference rights when it filled the
     Public Health Advisor position through the MP-36 announcement, for which he
     did not apply. 3
¶8         Although the appellant requested a hearing in this matter, IAF, Tab 1 at 2,
     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,
     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

     3
       In his petition, the appellant argues that the administrative judge erred in dismissing
     his claim that he was entitled to “priority placement” in the selection process. PFR
     File, Tab 1 at 9. However, he failed to identify, and we are unaware of, evidence in the
     record reflecting any such entitlement. See Weaver v. Department of the Navy,
     2 M.S.P.R. 129, 133 (1980) (before the Board will undertake the burden of a complete
     review of the record, a petitioning party must explain why a challenged factual
     determination is incorrect and identify specific evidence in record wh ich demonstrates
     the error).
                                                                                       5

     party seeking an evidentiary hearing for the administrative judge to rule in favor
     of that party should that party’s evidence be credited. Id.
¶9        The appellant argues that a hearing would have provided him an opportunity
     to elicit testimony about the agency’s selection for its vacancy, to determine if it
     actually occurred, and whether it was lawful. PFR File, Tab 1 at 6-7. However,
     the agency presented documentary evidence of its selection from the eligible
     MP-36 candidates, and the appellant presented no evidence to the contrary. See
     IAF, Tab 9 at 107.     The appellant’s unfounded speculation that the agency’s
     documentation could, in theory, be contradicted at a hearing does not amount to a
     genuine factual dispute.    Accordingly, we find no error in the administrative
     judge’s denial of the appellant’s hearing request.

                     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.
                                                                                6

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.
