The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-14-0421-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.
Sara M. Klayton, Washington, D.C., 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, applied for a
GS-13 Public Health Advisor position under delegated examining vacancy
announcement HHS-SAMHSA-DE-14-1085367, which was open to United States
citizens. Initial Appeal File (IAF), Tab 4 at 27-66. The agency announced its
intention to fill one vacancy and informed the applicants of a separate merit
promotion announcement by stating that:
This vacancy is also being announced concurrently with vacancy
announcement HHS-SAMHSA-MP-1085273 under merit
promotion procedures. Please review that announcement to see if
you are eligible for consideration under merit promotion
procedures. NOTE: Applicants must apply separately for each
announcement in order to be considered.
Id. at 59. It is undisputed that the appellant applied only under the delegated
examining announcement and that the agency adjudicated his TP veterans’
preference in processing his application. IAF, Tab 20, Initial Decision (ID) at 6.
¶3 In the delegated examining announcement, the agency informed applicants
that it would use the category rating procedure to rank and select eligible
3
candidates and that qualified candidates would be assigned to the following
categories: Best Qualified, Well Qualified, and Qualified. IAF, Tab 4 at 62-63.
The agency also 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. Id. at 63. It is undisputed that
the human resources specialist who reviewed the appellant’s application package
rated him ineligible and did not refer him to the selecting official. ID at 6; IAF,
Tab 4 at 16.
¶4 After exhausting his administrative remedies before the Department of
Labor (DOL), the appellant timely filed an appeal alleging that the agency
violated his veterans’ preference rights in not selecting him for the GS-13 Public
Health Advisor position under vacancy announcement HHS-SAMHSA-DE-14-
1085367. IAF, Tab 1. On appeal, the appellant argued that the agency’s
selection process violated his veterans’ preference rights by “not fairly testing the
applicants” and by not crediting his military experience in violation of 5 U.S.C.
§ 3311. IAF, Tab 1 at 5. The appellant also argued that the agency may have
used “one or more Prohibited Personnel Practices” in violation of 5 U.S.C.
§ 2302. Id. In support of his appeal, the appellant submitted a copy of the DOL
file closure letter and the notice he received from the agency informing him that
the agency adjudicated his 5-point (TP) veterans’ preference but he was ineligible
for the Public Health Advisor GS-13 position because he did not meet the
minimum requirements. IAF, Tab 1 at 7-8.
¶5 The administrative judge found that the appellant established jurisdiction
over his appeal pursuant to 5 U.S.C. § 3330a with respect to the issues that he
exhausted before DOL, and “that within the ambit of issues raised with DOL is
the appellant’s allegation that the agency failed to properly credit his experience
4
in violation of 5 U.S.C. § 3311.” 2 IAF, Tab 9 at 3. The administrative judge
ordered the agency to submit proof that it properly credited the appellant’s
experience as required by 5 U.S.C. § 3311. IAF, Tab 11 at 1. The administrative
judge also ordered the appellant to identify any material facts in dispute. Id. at 2.
The parties responded, and the administrative judge issued an order finding no
genuine issues of material facts in dispute and allowing the parties to submit
additional evidence and argument before the record closed. IAF, Tabs 12-13, 15,
17.
¶6 The agency submitted documentation showing that it filled the Public
Health Analyst position by selecting a candidate from the non-competitive
referral list issued under the merit-promotion vacancy announcement. IAF,
Tab 15 at 16. The agency also submitted the declaration of a human resources
specialist swearing under the penalty of perjury that she reviewed all of the
appellant’s application materials, including his resume, and determined that he
was ineligible for the position because he lacked the required specialized
experience in substance abuse treatment delivery systems or homeless services. 3
2
The administrative judge found that he lacked jurisdiction over the fo llowing
allegations that the appellant failed to exhaust at DOL. Specifically, his allegation that
the agency failed to maintain a system that fairly tests the relative capacity and fitness
of the applicants sought in violation of 5 U.S.C. § 3304(a)(1); and his allegation that
the agency’s determination was the product of vio lations of 5 U.S.C. § 2302(b)(6), and
thereby violated an unspecified veterans’ preference right unrecognized by VEOA. ID
at 4.
3
As relevant to the instant appeal, the GS-13 position required the following
specialized experience:
Must have one year of specialized experience equivalent to the GS-12
level in the Federal service. Examples of specialized experience includes:
Experience working with substance abuse treatment delivery systems, and
homeless services including, but not limited to, public, private for-profit,
and private non-profit organizations responsible for p lanning,
implementing and evaluating early intervention, treatment housing and
recovery support services for individuals with substance abuse disorders
and co-occurring disorders. Monitors grant and contract performance,
provide technical assistance and conduct analyses of relevant
5
IAF, Tab 15 at 12. In response, the appellant disputed the declaration of the
human resources specialist and stated that he would like to question her in a
hearing. IAF, Tab 18 at 24. He also disputed that the agency made its selection
from the merit promotion certificate. Id. He discussed his prior VEOA appeals
and his alleged mistreatment due to “continued violations of his legal rights as a
veteran.” Id. at 8-21. He also argued, among other things, that Board is required
to examine merits of the agency’s action. Id. at 23.
¶7 The administrative judge issued an initial decision finding that the agency
must prevail as a matter of law and denied the appellant’s request for corrective
action under VEOA. ID at 1-2, 7. Based on his finding that there was no genuine
dispute of material fact, the administrative judge exercised his authority to decide
the appeal without a holding hearing. ID at 1. In reaching his decision, the
administrative judge found that the human resources specialist considered all of
the valuable experience in the appellant’s resume and application package in
determining that the appellant was ineligible for the position. ID at 6. The
administrative judge explained that VEOA does not empower the Board to
consider the merits of the agency’s action, and that the Board’s role is limited to
determining whether the agency improperly omitted, overlooked, or excluded a
portion of the appellant’s experiences or work history in assessing his job
qualifications. ID at 4, 7. The administrative judge further found that the
appellant did not allege that the agency “omitted, overlooked, or excluded,” any
part of his 30-page resume in determining that he lacked the required specialized
experience. ID at 6.
¶8 The appellant filed a petition for review asking the Board to remand the
appeal to the field office with instructions to hold a hearing for the agency to
programmatic issues in order to recommend solutions for improve
program outcomes. Must have experience leading a team, preparing and
conducting presentations and preparing budget analyses and/or estimates
of resource needs.
IAF, Tab 4 at 61.
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explain its hiring decision. Petition for Review (PFR) File, Tab 1 at 21. In
support of his request, the appellant reasserts his argument that the agency has a
pattern and practice of denying veterans’ legal rights and that he was improperly
denied a hearing on the merits of his appeal because he identified disputed facts
in his case. Id. at 7, 12, 21; IAF, Tab 18 at 23-25. The appellant also argues that
hearings should be mandatory upon request. PFR File, Tab 1 at 6. The agency
responded in opposition to the appellant’s petition. PFR File, Tab 3.
¶9 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). Contrary to the appellant’s
arguments on review, 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). Under 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 these experiences in reaching its decision that the
appellant was not qualified for a given position of employment. Miller v. Federal
Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).
¶10 On review, the appellant reasserts the argument he made on appeal that the
agency’s employees have lied and omitted qualifying information in assessing his
qualifications for past vacancies. PFR File, Tab 1 at 12-13; IAF, Tab 18 at 23-24.
In making this argument, the appellant still fails to identify any specific
experience or work history in his application package that the agency improperly
7
omitted or overlooked in assessing whether he had the specialized experience
required under the vacancy announcement relevant in this appeal. Although the
appellant generally disputes the declaration of the human resources specialist who
reviewed his application package and determined that he was ineligible for the
position, 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. PFR File, Tab 1 at 16; see Miller, 121 M.S.P.R.
88, ¶ 12.
¶11 The appellant also disputes that the agency hired from the merit promotion
certificate because of the general “propensity of certain Agency Representatives
and employees to lie.” PFR File, Tab 1 at 14; IAF, Tab 18 at 24. This alleged
factual dispute is not material because its resolution could not affect the outcome
of this appeal. 4 Regardless of whether the agency hired from the merit promotion
certificate, the appellant did not prove that the agency violated one or more of his
statutory or regulatory rights in its selection process under the delegated
examining vacancy announcement for which he applied. See Dale, 102 M.S.P.R.
646, ¶ 10.
¶12 The appellant also challenges the finding of the administrative judge that
the Board lacks jurisdiction to consider the claims that he failed to exhaust with
DOL, and he attempts to reassert some of those claims on review. PFR File,
Tab 1 at 19; ID at 4; see supra note 2. Although the Board uses a liberal pleading
standard for allegations of veterans’ preference in a VEOA appeal, evidence of
the exhaustion requirement is mandatory under the statute and is not subject to
the same liberal construction. Mims v. Social Security
Administration, 120 M.S.P.R. 213, ¶ 24 (2013). Because the appellant offers no
4
We note that the appellant identified no evidence in the record casting any doubt on
the veracity of the agency’s documentation showing that it filled the Public Health
Analyst position by selecting a candidate from the non-competitive referral list issued
under the merit-promotion vacancy announcement. See IAF, Tab 15 at 16.
8
new proof that he satisfied the exhaustion requirement with respect to any
additional claims on review, the Board has no jurisdiction to consider them. PFR
File, Tab 1 at 19; ID at 4.
¶13 We have considered 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 the administrative judge’s decision in this VEOA appeal, and
we find no basis for disturbing the initial decision. PFR File, Tabs 1, 3. 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
9
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.