“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.’ ”
How later courts described this case
- “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.’ ”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0378-I-1
v.
DEPARTMENT OF HEALTH AND DATE: March 8, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Marie T. Ransley, 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 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 this appeal, 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 following facts are undisputed unless otherwise noted. The appellant
exhausted his administrative remedies with the Department of Labor and timely
filed an appeal alleging that the agency violated his veterans’ preference rights
when it did not select him for a GS-15 Supervisory Public Health Advisor
position advertised under the Merit Promotion Vacancy Announcement
HHS-CDC-M4-15-1332063 (Vacancy ID 1332063). 2 Initial Appeal File (IAF),
Tab 1 at 9. The agency selected a nonveteran candidate under Vacancy
ID 1332063 for the supervisory position to “[s]erve as part of the management
team for the Country Strategy & Management Branch within the Division of
Global HIV/AIDS.” IAF, Tab 9 at 21, Tab 11 at 17. The agency’s human
resources specialists reviewed the appellant’s application package and determined
that the appellant was ineligible for the position because his résumé did not
2
The agency concurrently announced the position under merit promotion and delegated
examining announcements. Initial Appeal File (IAF), Tab 11 at 16. The appellant filed
a separate appeal of his nonselection under the delegated examining announcement. See
Jones v. Department of Health & Human Services, MSPB Docket No. DE-3330-15-
0377-I-1.
3
demonstrate any experience in HIV/AIDS-related public health activity. 3 IAF,
Tab 9 at 11 (Guice Declaration ¶ 4).
¶3 On appeal, the appellant challenged the agency’s determination that he was
“ineligible,” arguing that the selection process was unlawful and that “the Agency
never stated their reasoning as to why [he is] not qualified.” IAF, Tab 1 at 5.
The appellant submitted a copy of the file closure letter that he received from the
Department of Labor, notifying him of his Board appeal rights, and the notice he
received stating that the agency reviewed his application and determined that he
was not eligible for the position because he lacked the specialized experience
described in the vacancy announcement. Id. at 7-9.
¶4 The administrative judge found that the Board has jurisdiction to adjudicate
the appellant’s VEOA claim alleging that the agency violated his rights under a
statute or regulation relating to veterans’ preference, and he informed the parties
of the applicable law and the burdens of proof. 4 IAF, Tab 12 at 2-4. The
administrative judge ordered the appellant to submit evidence or argument
supporting the merits of his appeal and showing any genuine dispute of material
fact that required a hearing. IAF, Tab 12 at 1, 3-4. The parties responded, and
the administrative judge denied the request for corrective action based on the
3
In the vacancy announcement, the agency specified that:
Applicants must have at least one year of specialized experience at or
equivalent to the GS-14 grade level in the Federal service as defined . . .
[as] 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 which includes
planning, development, implementation, evaluation and/or improvement
of international public health activities associated with the elimination of
HIV/AIDS or infectious diseases.
IAF, Tab 11 at 18.
4
On appeal, the appellant also argued that the agency “may have also utilized one or
more Prohibited Personnel Practices, which are violations of 5 [U.S.C.] § 2302”;
however, the administrative judge properly found that the Board has no jurisdiction
under VEOA to consider his claim of prohibited personnel practices. IAF, Tab 1 at 3,
Tab 12 at 3.
4
written record, finding that there was no genuine issue of material fact in dispute.
IAF, Tabs 13-14, Tab 15, Initial Decision (ID) at 1.
¶5 In reaching his decision, the administrative judge found that veterans’
preference does not apply in the merit-promotion selection process and that the
appellant was required to meet the position’s minimum qualification standards.
ID at 6. The administrative judge considered the sworn declaration of the
agency’s human resources specialist who reviewed the appellant’s qualifications
and determined that he was ineligible because he lacked the required specialized
experience in HIV/AIDS public health activity. 5 ID at 8. The administrative
judge found that the appellant offered no evidence that the agency improperly
omitted, overlooked, or excluded a portion of his experience or work history in
assessing his qualifications for the announced Supervisory Public Health Advisor
position. ID at 8. The administrative judge also found that the appellant failed to
create a genuine dispute of fact in response to the agency’s declaration or to
provide any material evidence that the agency denied him a bona fide opportunity
to compete. 6 ID at 10. The appellant filed a petition for review arguing, in
pertinent part, that the administrative judge improperly denied his right to a
hearing, although he fails to identify a genuine dispute of material fact that
requires a hearing in this appeal. Petition for Review (PFR) File, Tab 1 at 5-6, 8.
5
The human resources specialist swore in her declaration that a senior human resources
specialist performed a second review of the appellant’s application package and agreed
that the appellant was ineligible for the Supervisory Public Health Advisor position.
IAF, Tab 9 at 12.
6
For example, the administrative judge considered the appellant’s argument that the
Government has a policy to increase the number of veterans in the Federal workforce,
but found that VEOA does not guarantee a preference eligible a position of
employment. ID at 8. The administrative judge considered the appellant’s argument
that the agency failed to properly credit his military experience but found that he
offered no material evidence to support his argument. ID at 8. The administrative
judge also considered the publications that the appellant cited about Federal hiring
practices and the documents and cases he cited related to his other appeals, and found
that all of it was immaterial to the vacancy announcement at issue here. ID at 9-10.
5
¶6 On review, the appellant reasserts the arguments he raised below that the
agency failed to credit his qualifying experience as a Medical Corpsman in
Vietnam and that the agency has a pattern and practice of circumventing veterans’
rights. PFR File, Tab 1 at 9, 15-16, 20. The appellant also refers to his prior
VEOA appeals and argues, inter alia, that hearings should be mandatory based on
the findings stated in the Board’s January 2015 study titled, “The Impact of
Recruitment Strategy on Fair and Open Competition for Federal Jobs.” Id. at 5-6,
8-12, 20-22. The agency responded in opposition to the appellant’s petition for
review. PFR File, Tab 3.
¶7 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). Contrary to the appellant’s arguments on review, 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. PFR File, Tab 1 at 8; see 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. Waters-Lindo v.
Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). 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 if he
credits that party’s evidence. Id.
¶8 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
6
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.
¶9 The matter at issue in a VEOA appeal is not whether a particular agency
action is proper and should be sustained. Id. The Board’s role is limited to
assessing whether an agency considered all of an appellant’s “valuable
experience” that is material to the position for which he has applied, and this
assessment does not include a review of the weight the agency gave to a
preference eligible’s prior experiences in determining that he was not qualified
for a position of employment. See Miller, 121 M.S.P.R. 88, ¶ 9. That said,
VEOA does not guarantee a preference eligible a position of employment.
Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶¶ 9-10 (2002), aff’d,
No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
¶10 Although the appellant disputes the agency’s determination that he lacked
the required specialized experience for the Supervisory Public Health Advisor
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. See Miller, 121 M.S.P.R. 88, ¶ 12; see also 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.’ ”). Based on our review of the record, we find that the
agency’s documentary evidence shows that its human resources specialists
reviewed the appellant’s application and considered all of his relevant experience
7
and work history, including his military service, in assessing his qualifications for
the announced vacancy. IAF, Tab 9 at 10-12, 23-24, 26, 30, Tabs 10-11.
¶11 Two of the agency’s human resources specialists reviewed the appellant’s
application package and determined that he was not qualified “solely because his
application did not reflect the required one year of specialized experience.” IAF,
Tab 9 at 12. Significantly, one of the human resources specialists who reviewed
the appellant’s application noted that he “copied from the specialized experience
statement” in the announcement and incorporated it into his résumé; however, his
résumé did not actually show that he had any of the specialized experience in
HIV/AIDS public health activities that was required for the announced position.
Id. at 11. Moreover, the appellant has not identified any experience or work
history in his résumé concerning the “planning, development, implementation,
evaluation, and/or improvement of international public health activities associated
with the elimination of HIV/AIDS or infectious diseases” that the agency
allegedly omitted, overlooked or excluded. IAF, Tab 11 at 18. Despite the
appellant’s argument on review that the administrative judge unlawfully denied
his right to a hearing, we find that the appellant failed to identify any genuine
dispute of material fact that justified a hearing in this appeal. PFR File, Tab 1
at 8.
¶12 We have considered the remaining arguments raised by the appellant on
review, including but not limited to his analysis of the Board’s obligations to
veterans, “The Odyssey” by Homer, and corruption within the Veterans
Administration, and we find no basis for disturbing the initial decision denying
his request for corrective action under VEOA. 7 PFR File, Tab 1 at 6-8, 23-25.
7
For example, the appellant argues, among other things, that he was “Best Qualified”
for at least 176 positions but received no job offers. PFR File, Tab 1 at 26. He asks the
Board to remand the appeal for a hearing so that he can ask the agency to explain its
failure to hire him. PFR File, Tab 1 at 26. He also argues that the administrative judge
failed to perform his judicial duties and examine the merits of the agency’s action or
consider the evidence of the agency’s “‘pattern and practice’ of wrong-doing.” Id. at 8,
8
An agency is not required to hire a preference-eligible veteran, if, as was the case
here, it does not believe that the candidate is qualified or possesses the necessary
experience. See Abell v. Department of the Navy, 343 F.3d 1378, 1384 (Fed. Cir.
2003). The appellant also raises a claim of age discrimination on review;
however, the Board has no authority to adjudicate discrimination claims in
connection with VEOA appeals. PFR File, Tab 1 at 23; see Ruffin v. Department
of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001). We therefore 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 U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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
13, 20, 23. We find, however, the appellant’s arguments fail to establish a basis for
granting his petition for review.
9
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
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.