John Paul Jones, III v. Department of Health and Human Services

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

3

¶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,

7

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.