N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ JOHN PAUL JONES, III , Petitioner

v.

DEPARTMENT OF VETERA NS AFFAIRS, Respondent

______________________

2015

- 3123

______________________
Petition for review of the Merit Systems Protection Board in No. DE

- 3330

- 14

- 0364 -I- 1.

--------------------------------------------------------------------------

JOHN PAUL JONES, III, Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent

______________________

2015

- 3129

______________________JONES v. DVA 2

Petitions for review of the Merit Systems Protection Board in No. DE

- 3330

- 14

- 0294 -I- 1, DE

- 3330

- 14

- 0295 -I- 1, DE

- 3330

- 14

- 0302 -I- 1.

______________________
Decided: October 13 , 2015

______________________

J OHN P AUL J ONES , III , Albuquerque, NM, pro se.

M EEN G EU O H , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondents . Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., A LLISON K IDD

M ILLER

.

______________________
Before L OURIE , M OORE , and W ALLACH , Circuit Judges.

P ER C URIAM

. In these consolidated appeals, John Paul Jones , III (“Jones”) appeals from two final orders of the Merit Sy stems Protection Board (the “ Board”) , w hich denied his petitions for review and affirmed the Administrative Judge’s (“AJ ’s ”) decision s to deny his requests for corre ctive action under the Veterans Employment Opportun it ies Act of 1998 (“VEOA”). Jones v. Dep’t of Vet erans Affairs , No. DE

- 333

- 14

- 0364 -I-1 (M.S.P.B. Apr. 13, 2015) (“ Jones I Final Order ”); (M.S.P.B

. Dec. 22 , 2014 ) (“ Jones I Initial Decision ”); Jones v. Dep’t of Health & Human Servs. , Nos . DE

- 3330

- 14

- 0294 -I- 1, DE

- 3330

- 14

- 0295 -I- 1, DE

- 3330

- 14

- 0302 -I- I (M.S.P.B. Apr. 2, 2015) (“ Jones II Final Order ”) ; (M.S.P.B. Nov. 24, 2014 ) (“ Jones II Initial Decision ”). We consider both appeals in this one opinion, but evaluate them separately. Because th e Board did not err in denying both of Jones’s petitions for review , we affirm

.JONES v. DVA 3

B ACKGROUND Jones served in the Army as a medical corpsman during the Vietnam War . As a result of his service, Jones is eligible for a five

- point preference when seeking Federal employment. Jones has previously unsuccessfully a ppealed to this court from four different Board decisions since 2012 as part of his efforts to seek Federal emplo yment. See Jones v. Dep’t of Health & Human Servs. , No. 2015

- 3038, 2015 WL 4153929 ( Fed. Cir. 2015); Jones v. Dep’t of Health & Human Servs.

, 544 F . App’ x 976 (Fed. Cir. 2013); Jones v. Dep’t of Health & Human Servs.

, 542 F . App’x 912 (Fed. Cir. 2013); Jones v. Merit Sys. Prot. Bd.

, 497 F . App’x 1 (Fed. Cir. 2012 ).

I
In 2014, Jones appli ed for Vacancy Announcement No. PG

- 14

- DBA

- 1094170

- ORD, as an Administrative Officer at the GS

- 14 level at the Department of Veterans Affairs (“VA”). As part of his application, Jones submitted a 30

- page resume. Jones described his previous work experienc e, most of which he gained at King Faisal Sp ecialized Hos pital in Riyadh, Saudi Arabia. In his resume, Jones explained that “Saudi Arabia was one of the poorer countries on earth ,” “[g]oats still grazed the streets,” and “[t]here was no organized city garbage disposal.” Jones I

, Appeal No. 2015

- 3123, Resp’t’s App. 50. According to Jones, those statements demonstrate d his ability to work constructively in different environments.
Because the VA required applicants to have specia lized experience, the VA required that applica nts complete a self

- assessment questionnaire to determine their suit ability for the position. Jones completed the questionnaire, and for each selective experience question that the VA posed, Jones stated that he was “considered an exp ert in performing” the stated task. Id. at 27

– 30 . Based on Jones’s self

- assessment, he was initially deemed “BestJONES v. DVA 4

Qualified” for the position. The VA then performed an audit of Jones’s application materials and found that Jones’s claimed “ specialized ex perience ” was not suppor ted by his resume. Because Jones did not demonstrate the “specialized experience” necessary for the position, the VA ultimately deemed Jones ineligible for the position.
In response to his denial from the VA, Jones filed a complain t with the Department of Labor. Jones alleged that the VA violated the VEOA when it failed to find his experience sufficient to meet the selection criteria r equired by the announcement. The Department of Labor denied Jones relief, and Jones appealed to t he Board

. The Board’s AJ denied Jones’s request for corrective action. Jones I Initial Decision at 2. The AJ found that there was no dispute of material fact, and accordingly declined to hold a hearing. Id. at 1. According to the AJ, Jones did not proffer “any evidence that [the VA] did anything other than what the evidence shows it did

— which was to consider, but find inadequate, [Jones’s] resume.” Id. at 6. The AJ further found that Jones’s assertion that the VA used “overly selective criteria” was

n ot a violation of veteran’s preference and was beyond the AJ’s review. Id. at 6

– 7. The AJ thus concluded that the VA did not violate any of Jones’s VEOA rights. Id. at 7. Jones timely petitioned the full Board for review of the initial decision.

The fu ll Board denied the petition for review and a ffirmed the AJ’s initial decision. Jones I Final Order at 2. The Board found that the VEOA did 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.” Id. at 6. The Board found that Jones did not identify any relevant experie nce in his resume that the VA failed to consider in reviewing his application and in making the determin a-JONES v. DVA 5

tion that Jones was ineligible. Id. at 7. According to the Board, “[a]n agency is not required to hire a preference

eligible veteran, if, as was the case here, the agency does not believe that the candidate is qualified or possesses the necessary experience.” Id.
The Board also addressed Jones’s argument that the AJ failed to substantively address the VA counsel ’s use of the phrases “goat herder” and “garbage collector” in a pleading in reference to Jones’s work experience. Id. The Board found that the counsel ’s conduct , including the use of the language Jones objected to, did “not constitute preponderant evidence that the agency violated [Jones’s]

s tatutory or regulatory veterans’ preference rights in the selection process.” Id. at 8. The Board thus denied Jones’s petition for review. Id.
Jones appealed to this court from the Board’s final d ecision. W e have jurisdiction pursuant to 28 U.S.C. § 12 95(a)(9).

II
In 2014, Jones also applied for three different pos itions at the Center s for Disease Control, an agency of Health and Human Services (“HHS”): Vacancy A nnouncement Nos. HHS

- CDC

- D3

- 14

- 1053427, HHS

- CDC

D3

- 14

- 1049139, and HHS

- CDC

- D4

- 14

- 1058639. E ach of the three competitive selection vacancy announcements indicated that the HHS had concurrently issued a vacancy

ann ouncement for the same position under merit prom otion procedures. The competitive selection announc ements advised the applicants to apply separately for each announcement to be considered under both procedures. However, Jones did not apply to the vacancy announc ements under the merit promotion procedures, but did so only under the competitive selection procedure

. In any event, for each position, HHS determined that Jones was not eligible for employment pursuant to the vacancyJONES v. DVA 6

announcement. HHS made no employment selections pursuant to the competitive selection announcements, and

, instead, made all of i ts employment s elections pu rsuant to the merit promotion vacancy announcements.
Following HHS’s non

- selection of Jones for the vaca ncies, Jones filed three complaints with the Department of Labor

. The Department of Labor denied him relief, and he appeal ed to the Board

. The AJ consolidated Jones’s appeals and denied hi s requests for corrective action. Jones II Initial Decision at 2. As in Jones I , the AJ found that there was no dispute of material fact, and accordingly declined to hold a hea ring. Id. The AJ first found that HHS’s unrebutted ev idence established that HHS never made select ions from the three competitive selection vacancy announcements, “instead making all selections from the applicable merit promotions announcements.” Id. at 5. The AJ concluded that HHS did not violate the VEOA by adver tising a vacant position under both competitive selection and merit promo tion announcements

, and then making its selection exclusively from the merit promo tion a nnouncement

. Id. at 5

– 6. Even if HHS had filled the positions from competitive selection announcements, the AJ found that “preponderant evidence establishes that the agency did not improperly omit, overlook, or exclude a portion of [Jones’s] experiences or work history in a ssess ing his qualifications for the vacancy and finding him not qualified.” Id. at 8– 9. Jones petitioned the full Board for review of the initial decision.
The full Board denied the petition for review and a ffirmed the AJ’s initial decision. Jones II Final O rder at 2

. The Board agreed with the AJ that Jones failed to show that HHS violated his veterans’ preference rights “when it made its selections from the merit promotions certificates issued pursuant to the merit promotion announcements,JONES v. DVA 7

for which he did not apply.” Id. at 4. The Board also agreed that there was no genuine issue of material fact, and as a result, the AJ did not err in proceeding without a hearing. Id. Responding to Jones’s claim that the AJ was biased against him, the Board found that Jones failed to meet his burden of showing that the AJ’s actions ev idenced “a deep

- seated favoritism or antagonism that would make fair judgment impossible.” Id. at 5 (citation omitted).
Jones appealed to this court from the Board’s final d ecision . W e have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION The scope of our review in an appeal from a Board d ecision is limited. We can only set aside the Board’s dec ision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise n ot in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003)

. The Board’s decision is supported by substantial evidence “if it is supported by such relevant evidence as a reason able mind might accept as adequate to support a concl usion.” Brewer v. U.S. Postal Serv. , 647 F.2d 1093, 1096 (Ct. Cl. 1981) (internal qu otation marks omitted). To establish a claim under the VEOA, a preference e ligible veteran must show that an agency has violated his rights under any statute or regulation relating to vete rans’ preference with respect to federal employment. See 5 U.S.C. § 3330a(a)(1)(A).

I

We first consider whether the Board erred in denying Jones’s request for corrective action under the VEOA forJONES v. DVA 8

the VA vacancy announcement

. Jones argues that the VA violated his VEOA rights, and he specifically asserts that the VA counsel ’s use of the “ slurs ,” “goat herder” and “garbage collector,” was overlooked by the Board. Jones also contends that he should have been entitled to a hearing because there were disputed materi al facts

. The government responds that the Board did not err in denying Jones’s request for corrective action. Accor ding to the government, the VA properly reviewed Jones’s relevant experience. The government contends that VA counsel ’s choice of language during the Board proceedings does not diminish the f act that the VA gave due conside ration to the experience listed in Jones’s application mat erials and deemed him ineligible prior to the Board proceedings

. Finally, the government argues that the Board correctly concluded that the VEOA appeal could be decided without a hearing because there were no genuine disputes of material fact.
We agree with the government that the Board did not err in denying Jones’s requests for corrective action under the VEOA

. Jones does not dispute that the VA reviewed and considered all of his application materials. As the Board found, the VA deemed Jones ineligible for the vacant position because he was unable to demonstrate th e “specialized experience” necessary for the position. As we have stated, “the VEOA does not enable veterans to be considered for positions for which they are not qualified.” Lazaro v. Dep’t of Veterans Affairs , 666 F.3d 1316, 1319 (Fed. Cir. 2012). And to the extent Jones argues that the test the VA used in deeming him ineligible was too strict, the VEOA does not empower the Board to supplant the VA’s criteria with its own

. See i d. Although the VA counsel ’s choice of language in its pleading may not h ave been satisfying to Jones

, the language does not indicate that the VA misinterpreted Jones’ s relevant work exper ience when reviewing his employment application

.JONES v. DVA 9

With respect to Jones’s argument about the lack of a hearing

, “ 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. Dep’t of Veterans Affairs , 108 M.S.P.R. 349, 353 (2008) (citations omitted ) ;

see 5 C.F.R . § 1208.23(b) ( “[a] hearing may be provided to the appellant” (emphasis added) ). Jones has failed to point to any genuine dispute of material fact, and thus the Board did not err in declining to conduct a hearing. We have considered Jones’s remaining ar guments, but find them unpersuasive.

II We next consider whether the Board erred in denying Jones’s request for corrective action under the VEOA for the three competitive selection vacancy announcement s at HHS

. Jones argues that HHS violated his rights purs uant to the VEOA , and further contends that the Board erred in failing to consider the AJ’s bias against Jones. Jones also asserts that he should have been entitled to a hearing becau se there were disputed material facts.
The government responds tha t the Board did not err in denying Jones’s requests for corrective action. According to the government, HHS did not violate Jones’s rights under the VEOA by making its empl oyment selections through merit promotion announcements. The gover nment also asserts that the Board considered the alleg ations of bias, but correctly found that there was no abuse of discretion by the AJ.
We agree with the government that the Board did not err in denying Jones’s requests for corrective action under the VEOA. As t he Board found, HHS posted three co mpetitive selection vacancy announcements

, and concu rrently posted announcements for the same positions under merit procedures. Jones did not apply to the merit promotion vacancy announcements, and HHS made itsJONES v. DVA 10

selection s through those merit

- based announcements

. The Board did not err in concluding that Jones was not denied his rights pursuant to the VEOA because an agency may solicit applications from both the public and merit promotion applicants simultaneously, and then fill the vacant position from the merit promotion certificate without violating the rights of those who applied only through the public, competitive process. Joseph v. Fed. Trade Comm’n , 505 F.3d 1380, 1384

– 85 (Fed. Cir. 2007).

The Board considered Jon es’s allegation of bias, but the Board correctly concluded that there was no abuse of discreti on by the AJ

. Jones argues that the AJ’ s decision not to grant a hearing is evidence of the bias

, but Jones has failed to point to any genuine dispute of mate ria l fact that would necessitate a hearing

. See Haasz , 108 M.S.P.R. at 353. None of the AJ’s actions exhibited “a deep- seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Dep’t of the Army

, 2 87 F.3d 1358, 1362 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). We therefore conclude that the Board did not err in denying Jones’s request for corrective action under the VEOA. We have considered Jones’s remaining argume nts, but find them unpersuasive.

C ONCLUSION For the foregoing reasons, the decisions of the Board in both appeals are affirmed

. AFFIRMED