                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0006-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 13, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

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

           Melinda V. McKinnon, 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 the appellant’s 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 GS-13
     grade level, Public Health Advisor position that he applied for under Vacancy
     Announcement Number HHS-CDC-D1-14-1173397.              Initial Appeal File (IAF),
     Tab 1.      The record reflects that the agency issued concurrent competitive and
     merit promotion vacancy announcements for the Public Health Advisor position.
     IAF, Tab 11 at 13-19. The appellant, a 5-point (TP) preference-eligible veteran,
     applied for the position under the competitive announcement and was afforded the
     appropriate veterans’ preference.    IAF, Tab 8 at 5.     The agency notified the
     appellant 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 1 at 7-8. Because the appellant was found not
     qualified, he received no further consideration for the Public Health Advisor
     position.     The agency subsequently selected an individual from the merit
     promotion certificate. IAF, Tab 11 at 10-12.
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¶3        After exhausting his administrative remedies with the Department of Labor,
     the appellant filed this appeal and requested a hearing.     IAF, Tab 1 at 9. On
     appeal, the appellant argued that agency personnel failed to properly evaluate his
     application, that he qualified for the Public Health Advisor position, and that the
     selection process was unlawful.     IAF, Tabs 1, 3-4, 13-14. In response to the
     administrative judge’s order to more thoroughly explain why the appellant lacked
     the specialized work experience required for the Public Health Advisor position,
     the agency submitted a declaration sworn under penalty of perjury from the
     Human Resources (HR) Specialist stating that the appellant did not meet the
     required 1 year of specialized experience at the GS-12 level “because he lacks
     direct experience with state, local, federal and/or international public health
     preparedness programs.” IAF, Tab 10, Tab 11 at 11. The HR Specialist also
     certified that the agency selected one applicant from the merit promotion
     certificate to fill the positon. Id. at 12. The administrative judge notified the
     parties that he found no genuine dispute of material fact requiring a hearing,
     advised the parties of the applicable law and burdens of proof, and issued a close
     of record order allowing the parties until December 15, 2014, to supplement the
     record. IAF, Tab 12. The appellant responded, and without holding a hearing,
     the administrative judge found no dispute of material fact and issued an initial
     decision denying the appellant’s request for corrective action under VEOA. IAF,
     Tab 15, Initial Decision (ID) at 1-2.
¶4        In reaching his decision, the administrative judge found that the agency
     considered the appellant’s lengthy resume and that it credited the appellant with
     all of his experience material to the Public Health Advisor position in finding that
     he was unqualified. ID at 6-7. The administrative judge found further that he had
     no authority to reevaluate the weight the agency accorded the appellant’s
     experiences when it determined that 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 6-7. The administrative judge found further that, even if the
                                                                                        4

     appellant were qualified for this Public Health Advisor position, the agency
     selected an applicant from the merit promotion certificate. ID at 7; IAF, Tab 11
     at 11. Thus, the administrative judge denied the appellant’s request for corrective
     action, finding that the appellant did not show that the agency violated any of his
     statutory or regulatory VEOA-related rights in connection with the Public Health
     Advisor position at issue in this case. ID at 8.
¶5        To be entitled to relief under VEOA, the appellant must prove by
     preponderant evidence that the agency’s action violated one or more of his
     statutory or regulatory veterans’ preference rights in its selection process. Graves
     v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 10 (2010).                  A
     preponderance of the evidence is that degree of relevant evidence that a
     reasonable person, considering 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.
     § 1201.56(c)(2). The Board has the authority to decide a VEOA appeal on the
     merits, without a hearing, where there is no genuine dispute 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 party seeking an evidentiary hearing for
     the administrative judge to rule in favor of that party should that party’s evidence
     be credited. Id.
¶6        Here, the appellant filed a petition for review arguing, in pertinent part, that
     he was improperly denied a hearing and that the agency violated his VEOA
     rights. Petition for Review (PFR) File, Tab 1 at 6, Tab 3. The appellant also
     refers to prior appeals he filed against the agency and he argues that there is a
     pattern and practice of circumventing veterans’ rights. PFR File, Tabs 1, 3. The
     appellant asks the Board to reverse the initial decision and remand his appeal for
     a hearing. PFR File, Tab 1 at 13-15. The agency has responded in opposition to
                                                                                          5

     the petition, and the appellant has replied, reasserting his argument that he was
     improperly denied a hearing and arguing that he was qualified for the position
     and entitled to priority placement. PFR File, Tabs 1-3.
¶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.        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.’”).
¶9        The administrative judge found that the sole issue in this case is whether the
     agency violated 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to credit
     the appellant with all “valuable experience” material to the Public Health Advisor
     position. ID at 6; IAF, Tab 10. In deciding this issue, the administrative judge
     found that the agency had the appellant’s lengthy resume before it; the agency’s
                                                                                             6

      HR Specialist certified that he “thoroughly reviewed and considered all the
      information submitted by the appellant” but he found that the appellant lacked the
      1 year of specialized experience or its equivalent because he lacked “direct
      experience   with   state,   local,    federal   and/or   international   public   health
      preparedness programs”; and the appellant did not respond to assert or show that
      he has such experience. See ID at 7; see also IAF, Tab 11 at 11. Thus, the
      administrative judge concluded that the agency properly credited the appellant
      with all of his experience material to the Public Health Advisor position when it
      determined that he was unqualified for the position and that there was no dispute
      of material fact. ID at 7.
¶10         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 and that there is no
      dispute of material fact. ID at 5. The agency determined that the appellant was
      not qualified under Vacancy Announcement HHS-CDC-D1-14-1173397, because
      he did not meet the specialized experience requirement. IAF, Tab 11 at 11, Tab 7
      at 21-22.    In the vacancy announcement, the agency stated that the person
      selected for the 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. IAF, Tab 7 at 72. The vacancy announcement explicitly
      stated that “[s]pecialized experience is experience which is directly related to the
      position which has equipped the applicant with the particular knowledge, skills
      and abilities (KSAs) to successfully perform the duties of the position to include
      direct experience with state, local, federal and/or international public health
      preparedness programs.”       Id.     Although the appellant disputes the agency’s
      determination that he lacks the 1 year of specialized experience required for the
      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,
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      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. See Miller, 121 M.S.P.R. 88, ¶ 12.
¶11        Additionally, the appellant has not shown that the agency violated his
      veterans’ preference rights in this case when it made its selection from the merit
      promotion certificate issued pursuant to the merit promotion announcement, 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 filling the vacant position from the merit
      promotion certificate. See Joseph v. Federal Trade Commission, 505 F.3d 1380,
      1384 (Fed. Cir. 2007) (finding that the agency did not violate VEOA by
      conducting “simultaneous parallel procedures under the competitive examination
      and merit promotion process to fill the same position” and selecting someone
      other than the veteran under the merit promotion process); see also Dean v.
      Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008).
¶12        We have considered the appellant’s remaining arguments on review, most of
      which pertain to the agency’s actions in the appellant’s prior VEOA appeals, and
      we find no basis for disturbing the initial decision. 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 appellant’s petition for review.           See 5 C.F.R.
      § 1201.225(d).

                       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:
                                                                                  8

                          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.
     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
                                                                           9

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.
