UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBERS

DE-4324-16-0239-X-1

DE-3330-16-0151-X-1

DATE: November 15, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Laura VanderLaan, Esquire, Kansas City, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 On November 25, 2016, the administrative judge issued a compliance initial 

decision finding the agency in noncompliance with an August 17, 2016 settlement 

agreement, which had been entered into the record for enforcement by the Board 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

in the joined underlying appeals, MSPB Docket Nos. DE-0432-16-0239-I-1 (lead) 

and DE-3330-16-0151-I-1. Jones v. Department of Health & Human Services, 

MSPB Docket No. DE-4324-16-0239-C-1, Compliance File (CF), Tab 10, 

Compliance Initial Decision (CID). Accordingly, the administrative judge 

granted the appellant’s petition for enforcement and ordered the agency to comply 

with its obligations under the settlement agreement. CID at 5-6. For the reasons 

discussed below, we now find the agency in compliance and DISMISS the 

petition for enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On August 17, 2016, the parties entered into a settlement agreement 

resolving the appellant’s joined appeals, in which he had challenged under the 

Uniformed Services Employment and Reemployment Rights Act and the Veterans 

Employment Opportunities Act the agency’s determination that he was not 

qualified for a Public Health Advisor position at either the GS-13 or the GS-14 

level because he failed to demonstrate the required fluency in Fr ench. CID 

at 1-3. The settlement agreement provided that the agency would reconsider its 

qualification determination, including the language requirement, for the 

appellant’s application for the vacancy announcement at issue in the appeals. 

CID at 2. The reconsideration would be based on the appellant’s original 

application package, and a written decision of the reconsideration would be 

issued to him no later than 10 calendar days after the effective date of the 

settlement agreement. CID at 2. The settlement agreement further provided that, 

if the reconsideration resulted in a finding that the appellant was qualified for a 

position under the vacancy announcement, he would receive a one -time priority 

consideration for the next appropriate vacancy for which he was qualified. CID 

at 3. 

¶3 Pursuant to the settlement agreement, an agency Supervisory Human 

Resources Specialist reconsidered the appellant’s qualification for the Public 
3

Health Advisor position at the GS-13 and the GS-14 levels. CF, Tab 1 at 22-23. 

By letter dated October 3, 2016, he informed the appellant that he concurred with 

the agency’s original determination that he was not qualified because his résumé 

did not demonstrate French fluency in both oral and written communications. Id. 

The appellant filed a petition for enforcement with the Board, alleging that the 

agency had acted in bad faith because his application clearly demonstrated oral 

and written fluency in French. CF, Tab 1.

¶4 In the compliance initial decision, the administrative judge disagreed with 

the Supervisory Human Resources Specialist’s determination that the appellant 

did not demonstrate French fluency in his application, finding instead that the 

appellant’s résumé demonstrated both written and oral fluency in French. CID 

at 3-4. The administrative judge rejected the appellant’s contention that the 

agency acted in bad faith in reviewing the fluency demonstrated in his 

application, noting that the appellant had not concisely set forth this information 

as would normally be expected. CID at 4. However, the administrative judge 

found that good faith required the agency to engage in a more complete review of 

the application than it had when it originally found that the appellant had not 

demonstrated the required French fluency. CID at 4-5. The administrative judge 

therefore found that the agency had breached the settlement agreement and 

directed the agency to reconstruct the hiring process by addressing whether the 

appellant was otherwise qualified for the position. CID at 5. The administrative 

judge directed the agency to communicate any other reasons for finding the 

appellant unqualified to the appellant, so he could elect whether to file a second 

petition for enforcement. Id. The administrative judge also strongly suggested 

that the agency have a subject matter expert review the appellant’s application to 

determine whether he was otherwise qualified for the position. Id. The matter 

was then referred to the Board for consideration. See 5 C.F.R. § 1201.183. 

¶5 The agency submitted a response to the administrative judge’s compliance 

initial decision on December 14, 2016, indicating that it would review the 
4

appellant’s application package, as required by the compliance initial decision. 

Jones v. Department of Health & Human Services, MSPB Docket No. DE-4324-

16-0239-X-1, Compliance Referral File (CRF), Tab 1 at 6. The appellant 

submitted a “Motion for a Deadline for the Agency’s Compliance” on 

December 19, 2016, requesting that the agency be ordered to comply with the 

initial decision by December 21, 2016. CRF, Tab 2. 

¶6 The agency submitted its statement of compliance on January 13, 2017. 

CRF, Tab 6. In that statement, the agency reported that it had assigned a 

Supervisory Human Resources Specialist and a subject matter expert to review 

the appellant’s application. Id. at 4-5. The Human Resources Specialist found 

that the appellant’s application package did not demonstrate the specialized 

experience required for the Public Health Advisor position at the GS-13 and 

GS-14 grade levels. Id. at 5. She explained that the appellant’s experience was 

not directly related to the specialized experience required for the position in the 

area of public health service. Id. She also found that the specialized experience 

reported by the appellant that spanned a 30-year time frame did not show that the 

work he performed was done in a public health environment or public health 

program area. Id. 

¶7 The agency’s subject matter expert was an individual who had worked as a 

Public Health Advisor for the past 18 years, and who had served as a subject 

matter expert for public health positions twice before. Id. The subject matter 

expert also found the appellant unqualified for the position, stating that his 

résumé was hard to follow and did not clearly identify his employer, dates of 

employment, and job-specific experience. Id. at 6. He stated that the work 

experience the appellant described lacked any link to Public Health Advisor 

competencies and that the chronological work experience detailed did not certify 

the necessary years of specialized experience to qualify for the GS-13 or GS-14 

levels of the position. Id. 
5

¶8 Based on the review of the appellant’s application by these two individuals, 

the agency asserted that it had complied with the administrative judge’s order to 

review the appellant’s application for the Public Health Advisor position at the 

GS-13 and GS-14 levels to determine his qualifications, aside from French 

fluency. Id. The agency attached declarations from both of the individuals who 

reviewed the application, setting forth their conclusions. Id. at 12-23. 

¶9 The appellant submitted a statement in opposition to the agency’s evidence 

of compliance, arguing that his veterans’ preference rights were violated in prior 

cases he brought before the Board and that the agency’s review of his application 

in the instant case was inadequate. CRF, Tab 8. He also alleged that the agency 

offered him money to settle his case, requested that the individuals who reviewed 

his application be removed from their positions, and stated that he wished to be 

placed in a Public Health Advisor position, be compensated under the Back Pay 

Act, and receive compensatory and consequential damages. Id. at 16-17. 

¶10 In response, the agency filed a motion to strike, stating that the appellant 

had filed 184 cases with the Board since December 2009 and requesting that 

references to previous settlement offers and discussions be stricken and not 

considered. CRF, Tab 9 at 4-5. The appellant filed a response to the agency’s 

motion, arguing that the agency violated the confidentiality of settlement 

discussions and reiterating his allegation that the agency violated veterans’ 

preference regulations. CRF, Tab 10. 

¶11 We find that the agency has submitted sufficient evidence to establish its 

compliance with the terms of the parties’ settlement agreement. As discussed 

above, the agency produced evidence indicating that it reconstructed the hiring 

process by having a Human Resources Specialist and a subject matter expert 

review the appellant’s application package to determine his qualifications for the 

position at issue. Because the agency has now demonstrated compliance, we 

dismiss the appellant’s motion for a compliance deadline. Any references to 

previous cases or settlement discussions in prior cases or in the instant case have 
6

not been considered in this decision; therefore, the agency’s motion to strike the 

appellant’s references to those cases or discussions is denied as moot. Based on 

the evidence of compliance submitted by the agency, we find the agency in 

compliance and dismiss the petition for enforcement.

¶12 This is the final decision of the Merit Systems Protection Board in this 

compliance proceeding. Title 5 of the Code of Federal Regulations, 

section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which case s fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

 

2

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 
8

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
9

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 3 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
10

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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board