The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0437-I-1
DE-3330-15-0436-I-1
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DATE: March 11, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
Corey Thompson, 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 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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
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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed these VEOA appeals after the agency’s Center for
Disease Control and Prevention (CDC) did not select him for two separate Public
Health Advisor positions, a GS-13 position, Vacancy Announcement HHS-CDC-
D3-15-1320522, and a GS-15 position, Vacancy Announcement HHS-CDC-OM-
XX-XXXXXXX; 2 the administrative judge joined the two appeals and gave the
appellant comprehensive notice of the elements and burdens of establishing
jurisdiction over his VEOA claims. Initial Appeal File (IAF), Tabs 1, 3; 5 C.F.R.
§ 1201.36(a)(2). Neither party objected to joining the appeals. After considering
the parties’ respective responses, the administrative judge issued an order in
which she found jurisdiction over the appeals, noted the Board’s authority to
decide VEOA claims on the written record when there is no genuine dispute of
material fact, and ordered the appellant to identify what material facts were in
2
Jones v. Department of Health & Human Services, MSPB Docket No. DE-3330-15-
0436-I-1, pertains to Vacancy Announcement HHS-CDC-D3-15-1320522; Jones v.
Department of Health & Human Services, MSPB Docket No. DE-3330-15-0437-I-1
pertains to Vacancy Announcement No. HHS-CDC-OM-15-1402753.
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dispute in his appeals. IAF, Tab 16. The appellant did not respond, and the
administrative judge noted in her close of the record order that she had found no
genuine dispute of material fact that would necessitate a hearing. IAF, Tab 17.
Nevertheless, she set a date for close of the record, giving the parties another
month to submit evidence and argument and maintaining that she would still
convene a hearing if the parties’ close of record submissions were to show a
dispute of material fact. Id. Despite the administrative judge’s explicit notice
that she had not yet found a dispute of material fact, id., the appellant made no
further submissions.
¶3 On the written record, without holding a hearing, the administrative judge
denied the appellant’s request for corrective action under VEOA because the
record showed that the agency did not violate the appellant’s veterans’ preference
rights, deny him the right to compete for a vacant position under merit promotion
procedures for which the agency accepted applications from individuals outside
its workforce, or improperly omit, overlook, or exclude any of the appellant’s
experience or work history in assessing his qualifications for the vacancy at issue.
IAF, Tab 19, Initial Decision (ID). In short, the agency made no selection from
the delegated authority announcement for the GS-13 position and found the
appellant not qualified for the GS-15 position. ID at 4-8. In his timely filed
petition for review, the appellant argues that the administrative judge denied his
right to a hearing and abdicated her responsibility to make independent factual
determinations. Petition for Review (PFR) File, Tab 1 at 8-9. He devotes much
of his petition to discussing cases either unrelated or readily distinguishable from
the instant matter, including several of his own previous cases before the Board,
and he closes his petition with the proposition that the “systematic refusal” of
Board administrative judges to grant him a hearing on his many VEOA appeals
constitutes reprisal. Id. at 8-19.
¶4 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
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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. 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
should that party’s evidence be credited. Id.
¶5 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. 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 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
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prior experiences in determining that he was not qualified for a position of
employment. 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).
¶6 We agree with the administrative judge that the record reflects that the
agency made no selection for the GS-13 position. ID at 4-5; IAF, Tab 15 at 64.
Although it is clear that the appellant disagrees, it is settled law that there is no
harm, and therefore no VEOA violation, when, as here, an agency decides not to
fill a particular vacancy. Jones v. Department of Health & Human Services,
119 M.S.P.R. 355, ¶ 14 (2013), aff’d, 544 F. App’x 976 (Fed. Cir. 2014); cf.,
Scharein, 91 M.S.P.R. 329, ¶ 10 (the 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). Moreover, 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). Because, as noted above, the unrebutted
record reflects that the agency did not fill the position at issue, ID at 4; see IAF,
Tab 15 at 64, we agree with the administrative judge that there is no genuine
issue of material fact and find that she properly denied the appellant’s request for
corrective action on the written record.
¶7 With regard to the GS-15 position at issue, the record reflects that the
appellant lacked the requisite experience developing and formulating new
programs and initiatives in accord with public health activities specific to the
elimination of HIV/AIDS. ID at 7; IAF, Tab 15 at 155-56. Although the
appellant generally challenges the agency’s assessment of his experience, he fails
to identify any evidence in the record that supports his argument that the agency
violated his rights under regulations related to veterans’ preference by failing to
credit his qualifying experience in processing his application. Thus, we agree
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with the administrative judge that the record establishes that the agency did not
improperly omit, overlook, or exclude a portion of the appellant’s experiences or
work history in finding him not qualified for the position at issue.
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 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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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.