                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-14-0634-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.

           Madeha Chaudry Dastgir, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 September 2014, the agency sought applicants to fill a Public Health
     Advisor (PHA) position. See Initial Appeal File (IAF), Tab 8 at 69-74 (PHA job
     posting reflecting announcement number HHS-SAMHSA-DE-14-1211266). The
     appellant submitted an application, along with documentation of his veterans’
     preference. Id. at 35-68. However, after reviewing his application, the agency
     informed him that he was ineligible for the PHA position because he did not meet
     the minimum requirements.       Id. at 34.    Subsequently, the appellant filed a
     veterans’ preference complaint with the Department of Labor (DOL), but DOL
     closed its investigation without providing him any relief. See IAF, Tab 1 at 8.
¶3        Citing VEOA, the appellant filed the instant appeal, disputing the agency’s
     determination that he was ineligible for the PHA position.        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 based on the written record.     IAF, Tab 15, Initial Decision (ID).       The
     appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
     The agency has filed a response. PFR File, Tab 3.
                                                                                                3

¶4         The appellant seems to argue that the administrative judge erred in finding
     that the agency did not violate any of his veterans’ preference rights in
     determining that he was not qualified for the PHA position. PFR File, Tab 1 at
     9-12. 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 6-11. We
     find no merit to either argument. 2
¶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.
     § 1201.4(q). The administrative judge found that the appellant failed to meet that
     burden, and we agree.
¶6         Preference-eligible veterans applying for federal employment have the right
     “to credit for all experience material to the position for which examined,


     2
        The appellant’s petition includes several additional assertions that do not provide a
     basis to disturb the initial decision. For example, the appellant generally criticizes the
     agency for not hiring him 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.
     PFR File, Tab 1 at 14-16. None of these assertions warrant further review in th is, h is
     appeal of the agency’s determination that he was ineligible for th is one specific PHA
     vacancy.
     The appellant also argues that the administrative judge erred in dismissing his claim
     that he was entitled to “priority placement” in the selection process. I d. at 13.
     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 challen ged factual determ ination is incorrect,
     and identify specific evidence in record wh ich demonstrates the error).
                                                                                                4

     including    experience    gained      in   religious,    civic   welfare,    service,    and
     organizational    activities,   regardless      of   whether”      such      experience    is
     unpaid.     5 U.S.C. § 3311(2); 5 C.F.R. § 302.302(d).             However, it would be
     inconsistent with the Board’s role under VEOA to engage in a fact-based review
     of how an agency weighed and assessed a preference eligible’s experiences in
     making its hiring decisions and determinations about the preference eligible’s
     qualifications   for   a   position.        Miller   v.    Federal    Deposit     Insurance
     Corporation, 121 M.S.P.R. 88, ¶ 12 (2014).               Therefore, while the Board will
     determine 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, 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. Id. (citing Kirkendall v. Department of the
     Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009)).
¶7        Below, the administrative judge found that the agency credited the appellant
     with all of his valuable experience material to the PHA position in determining
     that he was not qualified. ID at 6-8. We agree.
¶8        To be eligible for the PHA position at issue, candidates were required to
     possess at least 1 year of specialized experience.           See IAF, Tab 8 at 70 (full
     description of the requisite specialized experience). In a sworn declaration, the
     agency official responsible for determining whether applicants possessed that
     requisite experience explained why the appellant was deemed unqualified. IAF,
     Tab 11 at 12-14. That official, C.J., indicated that the appellant’s application
     failed to demonstrate the requisite “experience providing advice and guidance to
     State and local governments and to various public, nonprofit and private agencies
     and organizations . . . on the planning, implementation, and evaluation of
     comprehensive services for adults and/or children with mental health issues.” Id.
     at 13. She also concluded that his application failed to demonstrate the requisite
                                                                                       5

     experience “analyzing data on public health, mental health, substance use
     treatment and prevention systems.” Id.
¶9        The appellant argues that C.J.’s sworn declaration omitted pertinent phrases
     from his application, which consisted of a 32-page, single-spaced narrative. PFR
     File, Tab 1 at 9 (referring to the phrases “mental health issues” and “reality
     therapy”); see IAF, Tab 8 at 37-68 (the appellant’s application). He also argues
     that her sworn declaration failed to mention portions of his application that
     documented his caring for fellow soldiers during trying events in Vietnam. PFR
     File, Tab 1 at 9-11.     However, the agency explicitly cited the portions of the
     appellant’s application that he claims were overlooked in explaining why his
     experience did not amount to that which was necessary for its PHA position.
     Compare id., with IAF, Tab 11 at 13 (C.J. declaration, discussing specific
     sections of the appellant’s application, including the portions the appellant
     claimed were omitted, which can be found at IAF, Tab 8 at 49-50, 54-56). While
     the appellant may disagree with the agency’s conclusion that his experience failed
     to demonstrate the required qualifications for the PHA position, there is no
     evidence that the agency improperly omitted, overlooked, or excluded a portion
     of his experiences or work history. Cf. Kirkendall, 573 F.3d at 1324 (finding a
     veterans’ preference violation where the agency “simply ignored” military
     documents reflecting relevant experience because it was not printed within the
     appellant’s application); Phillips v. Department of the Navy, 110 M.S.P.R. 184,
     ¶¶ 8, 12 (2008) (remanding to determine whether the agency had considered the
     preference-eligible    appellant’s   documented   experience,   where   the   record
     suggested that the agency had instead relied solely on his being a GS-6 to
     conclude that he did not have the minimum qualifications for a GS-8 position).
     Therefore, we find no reason to disturb the administrative judge’s conclusion that
     the agency considered all of the appellant’s relevant experience before deeming
     him not qualified for the PHA vacancy.        See ID at 6-8.      Accordingly, the
                                                                                        6

      appellant failed to meet his burden of proving that the agency violated his
      veterans’ preference rights.
¶10        Although the appellant requested a hearing in this matter, IAF, Tab 1 at 2,
      the Board has the authority to decide a VEOA appeal on the merits without a
      hearing when 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.
¶11        The appellant has failed to identify any persuasive evidence that warranted
      a hearing. He instead argues that a hearing would have provided an opportunity
      to elicit testimony from the aforementioned agency official, C.J. PFR File, Tab 1
      at 9-11. The appellant suggests that C.J., in theory, could contradict her own
      sworn declaration if she testified at a hearing.    Id.    However, that unfounded
      speculation does not amount to a genuine factual dispute. Moreover, to the extent
      that he wished to question how agency officials weighed his experience, such an
      inquiry is beyond the scope of this appeal, as explained above. 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:
                                                                                  7

                          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
                                                                           8

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.
