                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES III,                            DOCKET NUMBERS
                  Appellant,                         DE-3330-12-0338-I-2
                                                     DE-3330-12-0137-I-2
                  v.

     DEPARTMENT OF HEALTH AND
       HUMAN SERVICES,                               DATE: September 15, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

           Robert E. Nerthling II, Esquire, and Murray Kampf, Atlanta, Georgia, for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     one only when: the initial decision contains erroneous findings of 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 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).

                                      BACKGROUND
¶2         In March 2011, the agency issued concurrent competitive and merit
     promotion   vacancy    announcements     for   a    GS-13/14/15    Management    and
     Operations Public Health Advisor (PHA) position (overseas) with the agency’s
     Centers for Disease Control and Prevention (CDC). MSPB Docket No. DE-3330-
     12-0338-I-1, Initial Appeal File (I-1 IAF), Tab 10 at 71-73. In July 2011, the
     agency    issued   concurrent    competitive       and   merit   promotion   vacancy
     announcements for a GS-13/14/15 Technical PHA position (overseas) with the
     CDC. I-1 IAF, Tab 9 at 73-78.        The appellant, a preference-eligible veteran,
     applied for both types of PHA positions under the competitive vacancy
     announcements for those positions, each of which was an open continuous
     vacancy announcement. 2      I-1 IAF, Tab 9 at 54-71, Tab 10 at 54-69.           The


     2
      The announcement number for the competitive vacancy announcement for the
     Management and Operations PHA position was HHS-CDC-OD-11-432476
                                                                                           3

     competitive vacancy announcement for the Management and Operations PHA
     position was open from March 9, 2011, to March 8, 2012, and the competitive
     vacancy announcement for the Technical PHA position was open from July 26,
     2011, to March 12, 2012. I-1 IAF, Tab 9 at 73, Tab 10 at 71. The application
     included a section in which applicants were to identify their job preferences by
     checking boxes on the application form. I-1 IAF, Tab 9 at 56, Tab 10 at 56. The
     appellant indicated a job preference for HIV/AIDS on his application for the
     Management and Operations PHA position, but not on his application for the
     Technical PHA position. I-1 IAF, Tab 9 at 56, Tab 10 at 56.
¶3        The       agency   issued   nine   job   requests   under    the   Technical   PHA
     announcements and six job requests under the Management and Operations PHA
     announcements.      I-1 IAF, Tab 43 at 23-110, Tab 44.           The appellant was not
     considered for two of the Technical PHA positions because only applicants who
     had listed HIV/AIDS as a job preference were considered for those positions. See
     MSPB Docket No. DE-3330-12-0137-I-1, Initial Appeal File (0137 I-1 IAF),
     Tab 7 at 31.
¶4        For the thirteen remaining positions, the appellant’s application was
     reviewed by one of three Human Resources (HR) Specialists: R.T.; T.A.; and
     F.R. See MSPB Docket No. DE-3330-12-0338-I-2, Initial Appeal File (I-2 IAF),
     Tab 5, Initial Decision (ID) at 3 (citing hearing testimony of the three HR
     Specialists). He was rated not qualified for any of those positions because the
     reviewing HR Specialist determined that he had not demonstrated the required
     1 year of specialized experience at the grade level below that of the position
     being filled. Id.; see, e.g., I-1 IAF, Tab 43 at 95. Therefore, the appellant’s name
     was not listed on the certificates of eligibles generated under the competitive
     announcements for the PHA positions and his application for those positions was


     (Announcement 476). I-1 IAF, Tab 10 at 71. The announcement number for the
     competitive vacancy announcement for the Technical PHA position was HHS-CDC-OD-
     11-432471 (Announcement 471). I-1 IAF, Tab 9 at 73.
                                                                                         4

     not referred to the selecting officials for further consideration. See, e.g., I-1 IAF,
     Tab 43 at 46.
¶5         After exhausting his administrative remedies with the Department of Labor,
     the appellant filed two VEOA appeals with the Board challenging his
     nonselection for the PHA positions under Announcements 471 and 476. 3 I-1 IAF,
     Tab 1; 0137 I-1 IAF, Tab 1. The administrative judge joined the appeals for
     adjudication. I-1 IAF, Tab 16.

¶6         After holding the appellant’s requested hearing, the administrative judge
     issued an initial decision denying the appellant’s request for corrective action
     under VEOA.      ID at 2, 10.    The administrative judge found that the agency
     properly did not consider the appellant for two of the Technical PHA positions
     because he did not check the box indicating a job preference for HIV/AIDS on his
     application for the Technical PHA position. ID at 6-7. The administrative judge
     further found that the agency properly considered the appellant’s experience in
     determining that he was not qualified for the remaining thirteen PHA positions
     which it sought to fill during the period at issue. ID at 7-9. The administrative
     judge also found that the appellant did not show that the agency improperly failed
     to afford him priority consideration in the selection process for the PHA
     positions. ID at 9-10.

¶7         The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. The agency has filed a response to the petition for
     review. PFR File, Tab 4.




     3
       As explained in the agency’s motion to consolidate and join the two appeals, one
     appeal (MSPB Docket No. DE-3330-12-0137-I-1) covered the agency’s PHA requests
     between August 2011, when the appellant submitted his application, and
     December 2011; the other appeal (MSPB Docket No. DE-3330-12-0338-I-1) covered
     the agency’s subsequent PHA requests under Announcements 476 and 471. I-1 IAF,
     Tab 12 at 4.
                                                                                       5

                                          ANALYSIS
      The administrative judge correctly found that the agency properly considered the
      appellant’s experience in determining that he was not qualified for the PHA
      positions.
¶8          On review, the appellant reasserts his argument from below that the agency
      did not properly credit his experience in determining that he was not qualified for
      the PHA positions at issue in this appeal. PFR File, Tab 1 at 5; I-2 IAF, Tab 2
      at 15-17. He asserts that his military experience in Vietnam provides “specialized
      experience” that should qualify him for the PHA positions at the GS-14 level, at a
      minimum. PFR File, Tab 1 at 5. He further asserts that the “main reason” he is
      “most qualified” for the PHA positions is his “other 28 years of high level work
      in public health, health communications, and health care administration, twenty
      of which were in a developing country.” Id. (emphasis in original).
¶9          Under 5 C.F.R. § 302.302(d), when experience is a factor in determining
      eligibility, an agency shall credit a preference-eligible as follows:
                   (1) with time spent in the military service of the United
                       States if the position for which he/she is applying is
                       similar to the position which he/she held
                       immediately before his/her entrance into the military
                       service; and

                   (2) with all valuable experience, including experience
                       gained in religious, civic, welfare, service, and
                       organizational activities, regardless of whether pay
                       was received therefor.

¶10         The administrative judge found that, because the appellant did not hold a
      position similar to the PHA position prior to entering the military, the key issue
      regarding the agency’s compliance with this provision was whether the agency
      properly considered all of the appellant’s “valuable experience” in finding that he
      was not qualified for the PHA positions at issue. 4 ID at 6. The administrative


      4
        As the appellant notes in his petition for review, the initial decision cites the
      testimony of C.J. and P.M., who were not involved in this appeal. PFR File, Tab 1
                                                                                               6

      judge found that, while the announcements for both the Technical and the
      Management and Operations PHA positions listed duties that required experience
      with public health programs and grants/cooperative agreements and comparable
      funding sources, neither the appellant’s military experience, nor his private sector
      experience involved public health programs or grants/cooperative agreements. ID
      at 7.
¶11           The administrative judge then considered the testimony of the three HR
      Specialists who found that the appellant did not have the necessary 1 year of
      specialized experience at the grade level below that of the position being filled.
      ID at 7-8. In her hearing testimony, as summarized in the initial decision, F.R.
      stated that the appellant’s private sector experience did not show work in or with
      public health programs, but rather a great deal of work at public health facilities.
      ID at 7. In particular, she explained that the portion of the appellant’s résumé in
      which he claimed to have collaborated with others in the formation, development,
      and implementation of various public health programs was not sufficiently
      specific to show that he had such experience because he did not include details
      explaining the degree of collaboration, such as the length of the projects and the
      level of leadership involved. ID at 7-8 (citing hearing testimony of F.R.); see I-1
      IAF, Tab 9 at 65. T.A. testified that the appellant’s résumé showed extensive
      budget and administrative experience but did not show experience related to the


      at 24; see ID at 6. Specifically, in the initial decision, the administrative judge states:
      “I find that [C.J.] and [P.M.] [sic] appropriately considered the appellant’s military
      experience and private-sector work history.” ID at 6. The administrative judge appears
      to be referring to C.J. and P.M., who testified as agency witnesses during the hearing in
      another of the appellant’s VEOA appeals against the agency, MSPB Docket No. DE-
      3330-12-0399-I-2. This error provides no basis for disturbing the initial decision
      because the administrative judge’s subsequent discussion of the hearing testimony
      demonstrates that he properly based his determination that the agency appropriately
      considered the appellant’s experience in determining that he was not qualified for the
      relevant PHA positions on the hearing testimony of the three HR Specialists who
      reviewed the appellant’s applications under Announcements 476 and 471. See ID
      at 7-8.
                                                                                       7

      PHA position, especially as a principal representative planning strategic
      initiatives.   ID at 8.   R.T. testified that the appellant’s résumé did not show
      experience analyzing public health problems, as it did not show that he was the
      principal representative providing technical and administrative assistance
      regarding public health programs. Id.
¶12         The administrative judge credited the testimony of the HR Specialists,
      finding that their testimony was similar and compelling, and that each of them
      testified straightforwardly. ID at 7-8. The administrative judge found that the
      testimony of these witnesses shows that the agency complied with 5 C.F.R.
      § 302.302(d) by properly considering all of the appellant’s “valuable experience”
      in determining that he was not qualified for the thirteen PHA positions the agency
      sought to fill during the period at issue in these appeals. ID at 8. Therefore, the
      administrative judge found, the appellant’s VEOA rights were not abridged or
      violated. ID at 8.
¶13         The appellant challenges this finding on review, arguing that the
      administrative judge erred in crediting the hearing testimony of the agency’s HR
      Specialists. PFR File, Tab 1 at 24. In support of this argument, the appellant
      asserts that T.A. had erroneously identified him as a nonveteran in the selection
      process for another PHA position, and he contends that this error “ought to totally
      eliminate her credibility.”    Id.   Regarding the other two HR Specialists, the
      appellant states, “[T]hese women have never worked in public health, cannot even
      define what several of the public health programs listed on my résumé are (!) and
      in both cases could not even pronounce the name of one public health program,
      all of which are identified and defined on the CDC’s own website.”              Id.
      (emphasis in original).
¶14         The Board must give deference to an administrative judge’s credibility
      determinations when they are based, explicitly or implicitly, on the observation of
      the demeanor of witnesses testifying at a hearing; the Board may overturn such
      determinations only when it has “sufficiently sound” reasons for doing so. Haebe
                                                                                             8

      v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).             Sufficiently
      sound reasons to overturn an administrative judge’s demeanor-based credibility
      determinations include circumstances when the judge’s findings are incomplete,
      inconsistent with the weight of the evidence, and do not reflect the record as a
      whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).
      The appellant’s bases for challenging the administrative judge’s credibility
      determinations regarding the three HR Specialists (e.g., T.A.’s error in a previous
      selection process, and the other HR Specialists’ alleged lack of experience in
      public health) do not constitute sufficiently sound reasons for overturning those
      determinations. Accordingly, we discern no reason to disturb the administrative
      judge’s findings that the testimony of the agency’s HR Specialists shows that the
      agency complied with 5 C.F.R. § 302.302(d) by properly considering all of the
      appellant’s “valuable experience” in determining that he was not qualified for
      thirteen of the PHA positions the agency sought to fill during the period at issue.
      ID at 8.
      The administrative judge properly found that the appellant did not show that the
      agency improperly failed to afford him priority consideration in the selection
      process for the PHA positions.
¶15         The appellant also asserts on review, as he did below, that the agency was
      required to afford him priority consideration 5 for the PHA positions at issue in
      this appeal because the Board found in one of his prior VEOA appeals that the
      agency had failed to afford him veterans’ preference in the rating process for a
      PHA position in Kazakhstan. PFR File, Tab 1 at 13; I-2 IAF, Tab 2 at 12-13; see
      Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, ¶¶ 12-13
      (finding that the agency violated the appellant’s veterans’ preference rights by
      erroneously identifying him as a “non-veteran” on the applicant listing report for
      a PHA position), aff’d, 544 F. App’x 976 (Fed. Cir. 2014). The appellant asserts

      5
        Priority consideration is a special placement priority that is given to an eligible who
      was previously denied consideration due to an administrative error or a law or
      regulatory violation. See I-1 IAF, Tab 28 at 17.
                                                                                        9

      that the agency’s error entitles him to “priority placement” for all subsequent
      positions until he is hired. PFR File, Tab 1 at 13.
¶16         As the administrative judge explained, however, in Jones, the Board also
      found that the appellant did not suffer any harm as a result of the agency’s failure
      to afford him veterans’ preference because the agency did not select anyone to fill
      that position under either the competitive vacancy announcement by which the
      appellant applied for the position or a concurrent merit promotion announcement.
      See ID at 9; Jones, 119 M.S.P.R. 355, ¶ 14. In addition, the Board found that,
      even if the agency had made a selection for the Kazakhstan vacancy under either
      announcement, the appellant would not have been selected for the position
      because the only applicants under the competitive announcement whose names
      appeared on the certificate of eligibles for that announcement were rated Best
      Qualified on the applicant listing report for that announcement and the appellant
      was not rated Best Qualified on that report. Jones, 119 M.S.P.R. 355, ¶ 15.
¶17         In light of the Board’s finding that the appellant would not have been
      selected for the Kazakhstan vacancy even absent the agency’s failure to afford
      him veterans’ preference in the rating process for that vacancy, the appellant was
      not entitled to priority consideration in the selection process for the positions at
      issue in this appeal. Moreover, as the administrative judge noted in the initial
      decision, because the agency properly found that the appellant was not qualified
      for the pertinent PHA positions, any failure to afford him priority consideration
      would have been a harmless error. ID at 9; see Stephen v. Department of the Air
      Force, 47 M.S.P.R. 672, 681, 685 (1991) (an agency error is harmful only where
      the record shows that it was likely to have caused the agency to reach a
      conclusion different from the one it would have reached in the absence or cure of
      the error). Therefore, the administrative judge correctly found that the appellant
      did not show that the agency improperly failed to afford him priority
      consideration in the selection process for the PHA positions in dispute.         ID
      at 9-10.
                                                                                        10

      The appellant’s remaining arguments on review.

¶18         The appellant raises several additional arguments in his petition for review,
      which do not provide a basis to disturb the initial decision. He contends that he is
      entitled to “immediate interim relief” because the administrative judge violated
      Board policy by failing to issue an initial decision within 120 days of the
      acknowledgement order. PFR File, Tab 1 at 19-20; see 0338 I-1 IAF, Tab 2 at 3.
      The appellant did not suffer any harm as a result of this alleged error, so his
      argument does not establish a basis for review. See Panter v. Department of the
      Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not
      prejudicial to a party’s substantive rights provides no basis for reversal of an
      initial decision).
¶19         The appellant also asserts that the administrative judge improperly failed to
      address whether the CDC has the right: (1) to hire non-Americans for positions
      for which American citizenship is a key requirement; and (2) to refuse to hire
      anyone over the age of 60 or 62. PFR File, Tab 1 at 20-22. Regarding the first
      issue, the appellant asserts that the agency improperly offered a British national a
      PHA position in Chad without even interviewing an American veteran who was
      rated Best Qualified on the certificate of eligible candidates for the position. Id.
      at 20-21.     As for the second issue, which the appellant characterizes as
      “dispositive,” he contends that an agency witness testified during the hearing that
      the CDC has a policy of not hiring candidates for PHA positions located overseas
      who are over the age of 60 or 62. Id. at 21-22.
¶20         VEOA authorizes the Board to determine only whether an agency, in
      connection with the action that is the subject of an appeal, has violated a statutory
      or regulatory provision relating to veterans’ preference.            Villamarzo v.
      Environmental Protection Agency, 92 M.S.P.R. 159, ¶ 5 (2002). The citizenship
      and age of the individuals selected for a position are not material to that issue
      and, therefore, the administrative judge properly did not address these matters in
                                                                                  11

the initial decision. Moreover, to the extent that the appellant is attempting to
raise an age discrimination claim, it is well settled that the Board has no authority
to adjudicate discrimination claims in connection with VEOA appeals. See Ruffin
v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001).

                 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
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
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     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.
