                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-14-0635-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 9, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL ∗

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

           Corey Thompson, 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. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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        The appellant, a 5-point (TP) preference-eligible veteran, timely filed an
     appeal alleging that the agency violated his veterans’ preference rights, as
     provided under the Veterans Employment Opportunities Act of 1998 (VEOA),
     when it failed to select him for the Lead Public Health Advisor, GS-14 position
     he applied for under Vacancy Announcement Number HHS-CDC-D4-14-
     1154527. Initial Appeal File (IAF), Tab 1. Although the agency initially advised
     the appellant that he was tentatively determined to be eligible for the position
     based upon his self-rating, the agency notified him on September 15, 2014, that
     he was determined to be ineligible for the position because he did not meet the
     specialized experience requirement set forth in the vacancy announcement. See
     IAF, Tab 14 at 15-16, 24.     Because the appellant was found not qualified, he
     received no further consideration for the Lead Public Health Advisor position.
¶3        The administrative judge issued a close of the record order finding no
     genuine dispute of material fact in the appeal, and he provided the parties with
     the opportunity to submit additional evidence and argument before the record
     closed on December 1, 2014. IAF, Tab 15. The appellant responded by arguing
     that the agency has a pattern and practice of circumventing rights, and he
                                                                                      3

     provided details from his prior VEOA appeals against the agency concerning
     vacancy announcements not at issue in this appeal.        IAF, Tabs 16-19.     The
     appellant also argued that he is entitled to priority placement ahead of disabled
     veterans. IAF, Tab 16 at 5.
¶4        Without holding the hearing requested by the appellant, the administrative
     judge found that there was no dispute of material fact and issued an initial
     decision denying the appellant’s request for corrective action under VEOA. IAF,
     Tab 20, Initial Decision (ID) at 2. In reaching his decision, the administrative
     judge found that the agency considered the appellant’s lengthy resume and that it
     credited him for all of his experience material to the Lead Public Health Advisor
     position in finding that he was unqualified for the position.      ID at 6.    The
     administrative judge found further that he had no authority to reevaluate the
     weight the agency accorded the appellant’s experience in determining that,
     because the appellant has never worked in a public health program for the federal
     government or for a state or local health department, he failed to meet the
     requirement that he show 1 year of specialized experience at the next lower grade
     level or its equivalent.   ID at 6-8.   Thus, the administrative judge denied the
     appellant’s request for corrective action. ID at 8.
¶5        To be entitled to relief under VEOA, the 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). VEOA does not guarantee the
     preference-eligible appellant a position; the statute only affords him the right to
     compete for the position. See Abell v. Department of the Navy, 92 M.S.P.R. 397,
     400-01 (2002), aff’d, 343 F.3d 1378 (Fed. Cir. 2003). 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).
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¶6        Here, the appellant has filed a petition for review asking the Board to
     remand the appeal for a hearing so that the agency can explain its hiring decision
     and the administrative judge can examine the merits of the agency’s actions. In
     support of his request, the appellant reasserts that the agency has a pattern and
     practice of circumventing veterans’ legal rights and that the agency should be
     required to explain why he was found not qualified. Petition for Review (PFR)
     File, Tab 1.
¶7        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
     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.
¶8        Further, the matter at issue in a VEOA appeal is not whether a particular
     agency action is proper and should be sustained.            Id.     Pursuant to 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
     those experiences in reaching its decision that the appellant was not qualified for
     a given position of employment. Miller, 121 M.S.P.R 88, ¶ 12; see 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.’”).
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¶9         In this case, while the appellant argues that he was qualified for the
      position, we agree with the administrative judge’s finding that the agency’s
      recruitment process under these vacancy announcements did not violate the
      appellant’s rights under any statute or regulation related to veterans’ preference.
      ID at 5.   The agency determined that the appellant was not qualified under
      Vacancy Announcement HHS-CDC-D4-14-1154527 because he did not meet the
      specialized experience requirement.     IAF, Tab 14 at 15-16.      In the vacancy
      announcement, the agency stated that the person selected for the Lead Public
      Health Advisor position would be required to meet the requirement of showing 1
      year of specialized experience at the next lower grade level or its equivalent by
      establishing, among other things, experience:
            Direct[ing] and oversee[ing] multi-functional program activities
            involving a broad and complex range of public health programs that
            are operating domestically or abroad.
            Provid[ing] training to diverse stakeholder groups and public health
            partners on public health issues.
      See IAF, Tab 14 at 75.
¶10        Here, the agency tentatively found the appellant qualified based on the
      appellant’s own self-assessment of his qualifications in his application, but once
      it had the appellant’s resume for its full consideration the agency determined that
      he did not meet the specialized experience requirement.       See IAF, Tab 14 at
      42-72. Although the appellant disputes the agency’s determination that he lacks
      the 1 year of specialized experience required for the Lead Public Health Advisor
      position because he has never worked in a public health program for the federal
      government or for a state or local health department, 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. IAF,
      Tab 6 at 170; see Miller, 121 M.S.P.R. 88, ¶ 12.
¶11        The appellant’s remaining arguments on review, most of which pertain to
      the agency’s actions in his prior VEOA appeals and his general disagreement with
                                                                                  6

the administrative judge’s decision in this VEOA appeal, provide no basis for
disturbing the initial decision. PFR File, Tab 1. Because the appellant offers no
new and material evidence that was unavailable before the record closed, and he
has not shown that the administrative judge erroneously interpreted a statute or
regulation, we 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 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.
