                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-14-0595-I-1
                                                     DE-3330-14-0594-I-1
                  v.                                 DE-3330-14-0596-I-1
                                                     DE-3330-14-0597-I-1
     DEPARTMENT OF HEALTH AND
       HUMAN SERVICES,                               DATE: APRIL 10, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

           Angela M. Atkinson, Kansas City, Missouri, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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        The appellant, a 5-point (TP) preference-eligible veteran, timely filed four
     appeals alleging that the agency violated his veterans’ preference rights when it
     failed to select him for any of the GS-12/13 Public Health Advisor positions he
     applied   for    under   the     following   Delegated     Examining       (DE)   Vacancy
     Announcement Nos. HHS-OMH-DE-14-1078209 (MSPB Docket No. DE-3330-
     14-0594-I-1), HHS-OMH-DE-14-1083087 (MSPB Docket No. DE-3330-14-0595-
     I-1), HHS-OMH-DE-14-1078251 (MSPB Docket No. DE-3330-14-0596-I-1),
     HHS-OMH-DE-14-1078325 (MSPB Docket No. DE-3330-14-0597-I-1).                       MSPB
     Docket No. DE-3330-14-0594-I-1, Initial Appeal File (IAF 0594), Tab 1; MSPB
     Docket No. DE-3330-14-0595-I-1, Initial Appeal File (IAF 0595), Tab 1; MSPB
     Docket No. DE-3330-14-0596-I-1, Initial Appeal File (IAF 0596), Tab 1; MSPB
     Docket No. DE-3330-14-0597-I-1, Initial Appeal File (IAF 0597), Tab 1. The
     administrative judge joined the appeals for adjudication and found that the Board
     has jurisdiction    over   the     appeals because       the   appellant   exhausted   his
     administrative remedies before the Department of Labor.               IAF 0595, Tab 8,
     Tab 16, Initial Decision (ID) at 3.
                                                                                      3

¶3        The following facts are undisputed unless otherwise noted. In each of the
     DE Vacancy Announcements, the agency informed the applicants that the
     vacancies were being announced concurrently under merit promotion procedures
     and that applicants must apply separately for each announcement.        IAF 0594,
     Tab 10 at 4; IAF 0595, Tab 10 at 4; IAF 0596, Tab 9 at 8; IAF 0597, Tab 11 at 4.
     The agency also informed the applicants that it would use the category rating
     procedure to rank and select eligible candidates under the DE announcements and
     to assign qualified candidates to the categories of “Best Qualified,” “Well
     Qualified,” and “Qualified.” IAF 0594, Tab 10 at 6; IAF 0595, Tab 10 at 6; IAF
     0596, Tab 9 at 10; IAF 0597, Tab 11 at 6. The agency explained that it would
     apply veterans’ preference by placing preference eligibles at the top of their
     assigned category and considering them before nonpreference eligibles in that
     category.   IAF 0596, Tab 9 at 10. The appellant applied only under the DE
     announcements, and the agency placed him in the “Best Qualified” category with
     the other preference-eligible veterans on the DE certificates referred to the
     selecting officials. ID at 6-7; IAF 0594, Tab 10 at 33, 106; IAF 0595, Tab 10
     at 33, 102; IAF 0596, Tab 9 at 44, 116; IAF 0597, Tab 11 at 29, 102. The agency
     submitted documentation showing that it filled the vacancies by selecting
     candidates from the certificates issued under the merit promotion procedures, for
     which it is undisputed that the appellant did not apply. ID at 7; IAF 0594, Tab 10
     at 51; IAF 0595, Tab 10 at 60; IAF 0596, Tab 9 at 60; IAF 0597, Tab 11 at 50.
¶4        The appellant argued on appeal that the agency violated his veterans’
     preference rights by not crediting his military experience, by failing to grant him
     an interview, and by failing to test the applicants fairly. IAF 0595, Tab 1 at 5.
     The appellant also speculated that the agency screened him out based on unlawful
     reasons, such as his age (over 60) and his lack of a personal relationship with the
     hiring authority. Id.
¶5        The administrative judge issued a close of the record order, finding no
     genuine dispute of material fact in the appeal, and provided the parties’ with the
                                                                                        4

     opportunity to submit additional evidence and argument before the record closed
     on December 19, 2014. IAF 0595, Tabs 11, 13. The appellant responded by
     arguing that the agency has a pattern and practice of circumventing rights and
     provided details from his prior VEOA appeals against the agency concerning
     vacancy announcements not at issue in this appeal. IAF 0595, Tabs 14-15. The
     appellant also argued that he is entitled to priority placement ahead of disabled
     veterans. IAF 0595, Tab 14 at 24. The agency filed a motion to dismiss the
     appeal, arguing that the appellant’s claims must fail as a matter of law because
     the agency made its selection under the merit promotion process, for which the
     appellant did not apply. IAF 0595, Tab 12 at 5.
¶6           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. ID
     at 2.   In reaching his decision, the administrative judge found that the agency
     properly assigned the appellant his veterans’ preference in the competitive
     examination process, and that the agency did not violate his veterans’ preference
     rights by making its selections from the certificates issued under the current merit
     promotion process. ID at 1, 6-7.
¶7           The appellant 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.          MSPB
     Docket No. DE-3330-14-0595-I-1, Petition for Review (PFR) File, Tab 1 at 12,
     Tab 4 at 1. In support of his request, the appellant reasserts the arguments he
     raised on appeal that the agency has a pattern and practice of circumventing
     veterans’ legal rights, and that the agency should be required to explain its failure
     to interview and hire him for “at least 38 positions.” PFR File, Tab 1 at 6-9, 12,
     Tab 4 at 4, 6; IAF 0595, Tab 14 at 23.
¶8           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
                                                                                           5

     statutory or regulatory veterans’ preference rights.         Dale v. Department of
     Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). VEOA does not guaranteed 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,
     400-401 (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).
¶9        The appellant has not shown that the agency denied his right to compete
     under the DE vacancy announcements for which he applied, considering that he
     does not dispute that the agency placed him in the category of “Best Qualified”
     preference-eligible candidates on the certificate referred to the selecting
     officials. 2 IAF 0597, Tab 11 at 5, 12. Moreover, the appellant has not shown that
     the agency violated his veterans’ preference rights by making its selections from
     the merit promotion certificates issued under the concurrent merit promotion
     announcements, for which he did not apply. An agency has the discretion to fill a
     vacant position by any authorized method, and the Board has held that there is
     nothing preventing an agency from soliciting applications from the public and
     from merit promotion applicants simultaneously and filing the vacant position
     from the merit promotion certificate.       See Dean v. Consumer Product Safety
     Commission, 108 M.S.P.R. 137, ¶ 11 (2008); see also Joseph v. Federal Trade
     Commission, 505 F.3d 1380, 1384 (Fed. Cir. 2007) (finding that the agency did

     2
       Although the appellant argued that he is entitled to priority p lacement over disabled
     veterans in the “Best Qualified” category because the Board found in a prior appeal
     that the agency erroneously identified him as a nonveteran, his argument presents no
     reason to disturb the initial decision in this appeal. PFR File, Tab 1 at 9; IAF 0595,
     Tab 1 at 5; see Jones v. Department of Health & Human Services, MSPB Docket No.
     DE-3330-12-0399-I-2, Final Order (Sept. 11, 2014) (nonprecedential order rejecting
     the appellant’s argument in a VEOA appeal that he was entitled to priority
     consideration based on the Board’s decision in Jones v. Department of Health &
     Human Services, 119 M.S.P.R. 355, ¶¶ 12-13, aff’d, 544 F. App’x 976 (Fed. Cir.
     2013)).
                                                                                          6

      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).
¶10        The appellant’s remaining arguments on review are not dispositive and
      present no basis for disturbing the initial decision. 3     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.

      3
        The appellant also raised claims of age discrimination and prohibited personnel
      practices. PFR File, Tab 1 at 8; IAF 0595, Tab 14 at 23. Because the Board has no
      jurisdiction under VEOA to adjudicate claims of age discrimination and prohibited
      personnel practices, and these claims are not otherwise appealable to the Board, the
      Board cannot consider them in this appeal. See Goldberg v. Department of Homeland
      Security, 99 M.S.P.R. 660, ¶ 11 (2005); see also Ruffin v. Department of the Treasury,
      89 M.S.P.R. 396, ¶ 12 (2001).
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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.
