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

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN PAUL JONES, III, DOCKET NUMBERS

Appellant, DE-3330-15-0304-I-1

DE-3330-15-0322-I-1

v.

DEPARTMENT OF HEALTH AND

HUMAN SERVICES, DATE: February 25, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Robert L. Thomas, Atlanta, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, which

denied his requests for corrective action under the Veterans Employment

Opportunities Act of 1998 (VEOA) on the merits without a hearing. Generally,

we grant petitions such as these ones only when: the initial decision contains

1

A nonprecedential order is one that the Board has determined does not add

significantly 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 Parties may cite nonprecedential orders,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

erroneous findings of material fact; 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 administrative 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 these appeals, we conclude

that the petitioner has not established any basis under section 1201.115 for

granting the petitions for review. Therefore, we DENY the petitions for review

and AFFIRM the initial decisions, which are now the Board’s final

decisions. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 In March 2015, the agency issued concurrent merit promotion and open

competitive vacancy announcements for a GS-15 Public Health Advisor position

located in Port-Au-Prince, Haiti. Jones v. Department of Health & Human

Services, MSPB Docket No. DE-3330-15-0304-I-1, Initial Appeal File (0304

IAF), Tab 6 at 58-59; Jones v. Department of Health & Human Services, MSPB

Docket No. DE-3330-15-0322-I-1, Initial Appeal File (0322 IAF), Tab 5 at 58.

Both vacancy announcements indicated that the minimum qualifications required

for the position were 1 year of specialized experience at the GS-14 level,

including “experience developing and formulating new programs and initiatives

that are in accord with public health activities specific to the elimination of

HIV/AIDS.” 0304 IAF, Tab 6 at 59-60; 0322 IAF, Tab 5 at 59-60.

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¶3 The appellant, a 5-point preference-eligible veteran, applied for the position

under both vacancy announcements. 2 0304 IAF, Tab 6 at 22, 25-56; 0322 IAF,

Tab 5 at 22, 25-56. His applications were reviewed by a Human Resources

Specialist, who determined that the appellant was ineligible for the position

because he lacked the requisite specialized experience. 3 0304 IAF, Tab 6 at 15,

18; 0322 IAF, Tab 5 at 15, 18.

¶4 The appellant filed separate Board appeals alleging, in pertinent part, that

the agency failed to credit his military experience when evaluating his

applications under the each of the vacancy announcements. 0304 IAF, Tab 1 at 5;

0322 IAF, Tab 1 at 5. In response, the agency submitted declarations signed,

under penalty of perjury, by the Human Resources Specialist who evaluated the

appellant’s applications, swearing that she considered the appellant’s résumé and

application, including his experience as a Medical Corpsman while serving in the

military, and found that he lacked the experience required for the position. 0304

IAF, Tab 6 at 14-16; 0322 IAF, Tab 5 at 14-16. The Human Resources Specialist

also swore that the agency did not select any of the candidates that applied for the

positon under either of the vacancy announcements, and that the certificates of

eligible candidates were returned unused. 0304 IAF, Tab 6 at 16; 0322 IAF,

Tab 5 at 16.

¶5 The administrative judge issued orders finding no genuine disputes of

material fact based on his review of the parties’ submissions, and affording the

2

Because the agency was accepting applications from outside its own workforce and

the appellant was a preference-eligible veteran, see 0304 IAF, Tab 6 at 22, 58, the

agency was required to afford the appellant the opportunity to apply and compete for

the position under the merit promotion vacancy announcement, 5 U.S.C. § 3304(f)(1);

see Joseph v. Federal Trade Commission, 505 F.3d 1380, 1383 (Fed. Cir. 2007).

3

The agency initially informed the appellant that, based on his self-assessment, he was

eligible for the position. 0304 IAF, Tab 6 at 23; 0322 IAF, Tab 5 at 23. However, after

the Human Resources Specialist further reviewed the appellant’s application, the

agency determined that the appellant was not eligible for the position. 0304 IAF, Tab 6

at 15, 18; 0322 IAF, Tab 5 at 15, 18.

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parties an additional opportunity to supplement the records in each of the appeals

before they closed. 0304 IAF, Tab 13 at 1; 0322 IAF, Tab 13 at 1. In response,

among other things, the appellant presented arguments regarding his prior VEOA

appeals against the agency concerning vacancy announcements not at issue in

these appeals. 0304 IAF, Tab 16 at 6-9; 0322 IAF, Tab 15 at 5.

¶6 The administrative judge issued initial decisions denying the appellant’s

requests for corrective action without a hearing. 0304 IAF, Tab 17, Initial

Decision (0304 ID); 0322 IAF, Tab 17, Initial Decision (0322 ID). He found that

the Board had jurisdiction over the appeals pursuant to 5 U.S.C. § 3330a(d), but

that there were no disputes of material fact and the agency was entitled to

judgment as a matter of law. 0304 ID at 1, 5-9; 0322 ID at 1, 4-8.

¶7 The appellant has filed identical petitions for review of the initial decisions.

Jones v. Department of Health & Human Services, MSPB Docket No. DE-3330-

15-0304-I-1, Petition for Review (0304 PFR) File, Tab 1; Jones v. Department of

Health & Human Services, MSPB Docket No. DE-3330-15-0322-I-1, Petition for

Review (0322 PFR) File, Tab 1. The agency has filed responses in opposition to

the petitions for review. 0304 PFR File, Tab 3; 0322 PFR File, Tab 3.

¶8 As a preliminary matter, because the petitions for review raise similar

issues, we join the appeals to address the petitions for review. See 5 C.F.R.

§ 1201.36(b) (joinder is appropriate if doing so would expedite processing and

not adversely affect the interests of the parties). 4

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 On review, the appellant argues that the administrative judge erred in

deciding his appeals on the written record, without granting his requests for a

hearing. 0304 PFR File, Tab 1 at 5-6, 8-13; 0322 PFR File, Tab 1 at 5-6, 8-13.

4

Below, the administrative judge issued orders joining the appeals, but then continued

to process and adjudicate the appeals separately. 0304 IAF, Tab 9, Tab 10 at 1 n.2;

0322 IAF, Tab 4. The appeals were later severed and the administrative judge issued a

separate initial decision in each appeal.

5

He presents a variety of arguments in support of this contention, all of which we

find unpersuasive.

¶10 The appellant contends that a hearing was required in accordance with the

initial decision in Jones v. Department of Health & Human Services,

MSPB Docket No. DE-3330-10-0168-I-1, Initial Decision (Apr. 30, 2010). 5 0304

PFR File, Tab 1 at 9-13; 0322 PFR File, Tab 1 at 9-13. We disagree; an initial

decision issued by an administrative judge has no precedential effect. See

Rockwell v. Department of Commerce, 39 M.S.P.R. 217, 222 (1988). The

appellant also argues, citing 5 C.F.R. § 1201.24(d), that “[a]n appellant generally

has a right to a hearing on the merits if the appeal has been timely filed and the

Board has jurisdiction over the appeal.” 0304 PFR File, Tab 1 at 8; 0322 PFR

File, Tab 1 at 8. The Board’s regulations, however, provide an exception to this

general rule for VEOA appeals, and provide for the disposition of such appeals on

the merits without a hearing. 5 C.F.R. § 1208.23(b); see Davis v. Department of

Defense, 105 M.S.P.R. 604, ¶ 12 (2007).

¶11 In addition, the appellant claims that hearings should be mandatory based

on findings stated in the Board’s January 2015 study titled, “The Impact of

Recruitment Strategy on Fair and Open Competition for Federal Jobs.” 0304 PFR

File, Tab 1 at 5-6; 0322 PFR File, Tab 1 at 5-6. However, the Board has

repeatedly held that it 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. See Haasz v. Department of Veterans

Affairs, 108 M.S.P.R. 349, ¶ 9 (2008); Davis, 105 M.S.P.R. 604, ¶ 12. We find

5

In his petition for review, the appellant references the docket number of his appeal

relating to his petition for enforcement of that initial decision, Jones v. Department of

Health & Human Services, MSPB Docket No. DE-3330-10-0168-X-1, Final Order

(Dec. 10, 2012) (Final Order). 0304 PFR File, Tab 1 at 9-12; 0322 PFR File, Tab 1

at 9, 12. However, the appellant’s arguments on review make clear that he intends to

reference the initial decision on the merits of his appeal, rather than the petition for

enforcement of that initial decision, which was dismissed by the Board. 0304 PFR File,

Tab 1 at 9-12; 0322 PFR File, Tab 1 at 9-12; see Final Order at 2.

6

that the appellant’s arguments on review do not establish a basis to depart from

this well-established principle.

¶12 The appellant also contends that the administrative judge should have held a

hearing because there was a genuine dispute of material fact as to whether the

agency credited his military experience as a medic in Vietnam. 0304 PFR File,

Tab 1 at 13-17; 0322 PFR File, Tab 1 at 13-17. We disagree. 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. 6 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)).

6

With regard to the appellant’s application under the merit promotion vacancy

announcement, the Board has previously examined whether an agency violated an

appellant’s veterans’ preference rights under 5 U.S.C. § 3304(f)(1) in denying him the

opportunity to compete for a vacancy announced under the merit promotion process by

failing to properly consider his application. See Phillips v. Department of the Navy,

110 M.S.P.R. 184, ¶¶ 3, 12 (2008). In Phillips, the Board remanded the appeal to the

regional office to determine whether the agency properly considered the appellant’s

qualifications for a GS-8 position. Phillips, 110 M.S.P.R. 184, ¶¶ 12, 14. In so doing,

we recognized that an agency’s consideration of an individual’s qualifications,

including prior work experience, as set forth in the application materials, is part of

affording an individual the opportunity to compete for a vacancy. See id., ¶¶ 9, 10.

7

¶13 As previously noted, the agency submitted a sworn statement from the

Human Resources Specialist who evaluated the appellant’s application, asserting

that she considered the appellant’s experience as a Medical Corpsman, and found

that it was not related to the job being filled. 0304 IAF, Tab 6 at 15; 0322 IAF,

Tab 5 at 15. The Human Resources Specialist further swore that she considered

the specific experiences that the appellant cited in his résumé, and concluded that

the appellant did not demonstrate experience developing and formulating new

programs and initiatives that are in accord with public health activities specific to

the elimination of HIV/AIDS. 0304 IAF, Tab 6 at 15; 0322 IAF, Tab 5 at 15.

The administrative judge correctly found that the agency submitted sworn

statements indicating that it considered all of the appellant’s experience, and the

appellant presented no evidence to the contrary. 0304 ID at 7-8; 0322 ID at 6.

¶14 We have considered the appellant’s arguments on review, and we find that

he is disputing the weight that the agency gave to his prior experience, rather than

whether the agency considered that experience in evaluating his application. See

0304 PFR File, Tab 1 at 13-17; 0322 PFR File Tab 1 at 13-17. For example, the

appellant argues that his experience in Vietnam regarding the use of prophylactics

to stop the transmission of sexually transmitted diseases should have been

considered relevant to developing and formulating new programs and initiatives

that are in accord with public health activities specific to the elimination of

HIV/AIDS. 0304 PFR File, Tab 1 at 15-16; 0322 PFR File, Tab 1 at 15-16.

However, 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.

¶15 Accordingly, because the record reflects that the agency reviewed the

appellant’s application and considered all of his relevant experience and work

history, including his military service, in assessing his qualifications, the

appellant has failed to meet his burden of proving that the agency violated his

8

veterans’ preference rights or right to compete. 7 See Miller, 121 M.S.P.R. 88,

¶ 11 (finding that a preference eligible’s right to compete does not preclude an

agency from eliminating a veteran or preference eligible from further

consideration for a position based on his qualifications for the position, and that

nothing requires that the veteran or preference eligible be considered at every

stage of the selection process, up to that process’s final stage); see also Harellson

v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010) (same).

¶16 On review, the appellant further argues that the administrative judge failed

to “credit” his status as a combat veteran, or to express gratitude for his military

service. 0304 PFR, Tab 1 at 7; 0322 PFR File, Tab 1 at 7. To the contrary,

however, the administrative judge recognized that the appellant had military

service as a Medical Corpsman in Vietnam, and that VEOA is an “expression of

gratitude” to veterans. 0304 ID at 7 n.3; 0322 ID at 5, 6 & n.3. The appellant

also contends that the administrative judge failed to consider that VEOA is a

remedial statute that should be broadly construed. 0304 PFR File, Tab 1 at 6-7;

0322 PFR File, Tab 1 at 6-7. Although VEOA is a remedial statute, the

administrative judge correctly identified the relevant issue in these appeals as

whether the agency improperly omitted, overlooked, or excluded a portion of the

appellant’s experience or work history in assessing his qualifications for the

vacancy, and concluded that the appellant had offered no such evidence. 0304 ID

at 6-8; 0322 ID at 4-6.

7

Furthermore, the agency’s decision to make no selection for the position under either

the merit promotion or open competitive vacancy announcements did not deny the

appellant his opportunity to compete or otherwise violate his rights under a statute or

regulation relating to veterans’ preference. See Abell v. Department of the Navy,

343 F.3d 1378, 1384 (Fed. Cir. 2003) (finding that an agency did not violate a

preference-eligible veterans’ right to compete under VEOA when it canceled a vacancy

announcement); Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶ 10 (2002)

(finding that an agency is not required to fill a particular vacancy and does not violate

an applicant’s veterans’ preference rights when it chooses not to make a selection).

9

¶17 The appellant appears to argue on review that the administrative judge erred

in failing to adjudicate his claims of prohibited personnel practices. 0304 PFR

File, Tab 1 at 17-18; 0322 PFR File, Tab 1 at 17-18; see 0322 IAF, Tab 8 at 4.

However, the Board’s jurisdiction in a VEOA appeal does not extend to the

adjudication of prohibited personnel practice claims. See Graf v. Department of

Labor, 111 M.S.P.R. 444, ¶ 6 n.2 (2009) (finding that the Board lacked authority

to review allegations of disability discrimination and prohibited personnel

practices claims in a VEOA appeal). The appellant also claims that the agency

was required to hire him as a veteran, unless they had a “pass-over request

approved, for lawful reasons.” 0304 PFR, Tab 1 at 18; 0322 PFR, Tab 1 at 18.

However, an agency may eliminate a preference-eligible veteran from further

consideration for a position based upon his qualifications, and the agency was not

obligated to hire the appellant for a position for which it determined that he

was not qualified. See Harellson, 113 M.S.P.R. 534, ¶ 11; Dale v. Department of

Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006) (finding that VEOA does not

provide that veterans will be considered for positions for which they

are not qualified).

¶18 We have considered the appellant’s remaining arguments on review

including, but not limited to, his arguments regarding testimony and proceedings

in his prior unrelated appeals, his analysis of “The Odyssey” by Homer, his

comparison of his Board appeal to the criminal trial of Dzhokhar Tsarnaev, and

his criticism of the Government for its responses to various natural disasters and

health epidemics. See 0304 PFR File, Tab 1 at 9-12, 21-24; 0322 PFR File, Tab 1

at 9-12, 21-24. Having considered these arguments, we find that they present no

basis to disturb the initial decisions denying the appellant’s requests for

corrective action under VEOA.

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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 U.S. 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 U.S. 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 an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website

at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The

11

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.