NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOHN PAUL JONES, III,

Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN 

SERVICES,

Respondent

______________________ 

2017-1908

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-4324-16-0240-I-1.

______________________ 

Decided: August 10, 2017

______________________ 

 JOHN PAUL JONES, III, Albuquerque, NM, pro se.

 DANIEL S. HERZFELD, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON 

KIDD-MILLER. 

______________________ 
2 JONES v. HHS

Before PROST, Chief Judge, BRYSON and STOLL, Circuit 

Judges.

PER CURIAM. 

John Paul Jones, III, petitions for review of a decision 

of the Merit Systems Protection Board denying his claims 

under the Veterans Employment Opportunity Act 

(“VEOA”) and the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (“USERRA”). We 

affirm. 

I 

Mr. Jones served on active duty in the U.S. Army

during the Vietnam War. He is a preference-eligible 

veteran. Since 2009, he has applied for numerous employment positions with the Department of Health and 

Human Services (“HHS”). See Jones v. Price, No. 16-2234, 

2017 WL 2556989, at *3 n.1 (10th Cir. June 13, 2017) 

(noting “Mr. Jones’s contention that . . . he has applied for 

over 90 positions with [HHS]”). Following his nonselection for positions with that agency, he has frequently 

filed claims that his non-selection violated the VEOA or 

USERRA. See, e.g., Jones v. Dep’t of Health & Human 

Servs., No. 2017-1353, 2017 WL 3016959 (Fed. Cir. July 

17, 2017) (“Jones IX”) (non-selection was not a USERRA 

violation); Jones v. Dep’t of Health & Human Servs., No. 

2017-1055, 2017 WL 1279381 (Fed. Cir. Apr. 6, 2017)

(non-selection was not a USERRA or VEOA violation); 

Jones v. Dep’t of Health & Human Servs., 834 F.3d 1361 

(Fed. Cir. 2016) (“Jones VII”) (non-selection was not a 

USERRA violation); Jones v. Dep’t of Health & Human 

Servs., 655 F. App’x 819 (Fed. Cir. 2016) (non-selection 

was not a USERRA violation); Jones v. Dep’t of Health & 

Human Servs., 640 F. App’x 861 (Fed. Cir. 2016) (“Jones 

V”) (non-selection was not a VEOA violation); Jones v. 

Dep’t of Health & Human Servs., 618 F. App’x 1013 (Fed. 

Cir. 2015) (non-selection was not a VEOA violation); 

Jones v. Dep’t of Health & Human Servs., 544 F. App’x 
JONES v. HHS 3

976 (Fed. Cir. 2013) (“Jones III”) (failure to accord veterans’ preference was harmless error regarding nonselection; petitioner lacked standing regarding other 

claims); Jones v. Dep’t of Health & Human Servs., 542 F. 

App’x 912 (Fed. Cir. 2013) (non-selection was not a VEOA 

violation); Jones v. Merit Sys. Protection Bd., 497 F. App’x 

1 (Fed. Cir. 2012) (affirming Board decision to dismiss 

VEOA claim against HHS as untimely). 

At issue here is Mr. Jones’s application for a Public 

Health Advisor position with the Centers for Disease 

Control and Prevention (“CDC”), an agency within HHS. 

That position was advertised at the GS-12 or GS-13 level. 

Mr. Jones applied only for the GS-13 level position. 

The vacancy announcement provided that in order to

qualify at the GS-13 level, the applicant “must have at 

least one year of specialized experience at or equivalent to 

the GS-12” level. The announcement explained that

specialized experience is “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 to include experience reviewing, evaluating, and developing 

public health program operations at the Federal, state, or 

local level.” 

Applicants for the position were required to complete 

a self-assessment questionnaire and provide a résumé 

and supporting documentation. The questionnaire listed 

approximately 20 criteria regarding experience that was 

relevant to the position. The applicant was directed to 

assign himself or herself the most appropriate rating for 

each criterion. The ratings range from no education, 

training, or experience to “expert.” 

The agency’s procedure upon receiving applications 

for such positions is to score the questionnaire and place

qualifying applicants into one of three categories: Best 

Qualified, Well Qualified, or Qualified. The agency then 
4 JONES v. HHS

considers the entire applications of those in the highest

category and determines whether an applicant is qualified 

for the position. As part of that process, preferenceeligible veterans are placed first within each category. 

Mr. Jones submitted a completed questionnaire and 

provided a 32-page, narrative-style résumé. In every 

response to the questionnaire other than those questions 

related to Spanish language proficiency, Mr. Jones rated 

himself “expert.” 

A Human Resources Specialist reviewed many of the 

applications. She mistakenly reversed the scoring rubric, 

an error that affected more than one hundred applicants. 

Due to that mistake, Mr. Jones was initially placed in the 

Qualified category. 

The Supervisory Human Resources Specialist at HHS, 

Kelly Mathis, realized that mistake. He rescored Mr. 

Jones’s self-assessment questionnaire, which placed Mr. 

Jones in the Best Qualified category. Mr. Mathis then 

reviewed Mr. Jones’s other application materials. Mr. 

Mathis concluded that Mr. Jones did not have the necessary specialized experience for the position of Public 

Health Advisor at the GS-13 level. Mr. Jones contested 

that decision and eventually appealed to the Merit Systems Protection Board. 

During the time that Mr. Jones’s appeal was pending 

before the Board, Mr. Jones was involved in a separate

Board proceeding before the same administrative judge. 

In that separate proceeding, the administrative judge

terminated the merits hearing for contumacious conduct 

on the part of Mr. Jones and decided the appeal on the 

written submissions. See Jones IX, No. 2017-1353, 2017 

WL 3016959, at *1.

In the Board proceeding at issue in this case, Mr. 

Jones moved to recuse the administrative judge. He 

argued that the administrative judge’s finding of contu-
JONES v. HHS 5

macious conduct in the separate proceeding showed that 

the administrative judge was biased against him. The 

administrative judge denied the motion.

At the subsequent merits hearing, Mr. Jones provided

testimony from two witnesses, himself and Mr. Mathis. 

The administrative judge denied Mr. Jones’s request to 

have six other witnesses testify on the ground that their 

testimony was irrelevant or immaterial. It appears that 

Mr. Jones did not submit any exhibits.

The administrative judge subsequently issued a decision denying Mr. Jones’s VEOA and USERRA claims. 

The administrative judge found that the initial scoring 

error did not constitute a violation of the VEOA. That 

mistake was corrected, and Mr. Jones’s application was 

reviewed under the proper procedure. The administrative 

judge found credible Mr. Mathis’s testimony that he had 

fully considered Mr. Jones’s experiences and work history 

in determining that Mr. Jones was not qualified for the 

position he had applied for. Based on that testimony, and 

absent contrary evidence, the administrative judge concluded that Mr. Jones had not satisfied his burden to 

show a VEOA violation.

The administrative judge also concluded that the evidence did not support Mr. Jones’s claims of discrimination 

and retaliation under USERRA. First, the administrative 

judge concluded that Mr. Jones failed to establish that he 

was qualified for the position. The administrative judge

credited Mr. Mathis’s testimony “regarding his methodical 

approach to assessing whether [Mr. Jones] met the specialized experience requirement for the position, and [Mr. 

Mathis’s] specific reasons why identified portions of [Mr. 

Jones’s] application materials did not demonstrate that 

th[o]se requirements were met.” The administrative 

judge found that Mr. Mathis’s assessment was “well 

supported by the documentary evidence in the record.” In 

addition, the administrative judge “found compelling the 
6 JONES v. HHS

agency’s stated reason for its determination that Mr. 

Jones was not qualified,” and found that the non-selection 

“was not a pretext for discrimination or motivated by 

retaliatory intent.”1

The administrative judge also addressed Mr. Jones’s 

allegation that Mr. Mathis was motivated to retaliate

against Mr. Jones based on his status as a veteran. Mr. 

Mathis was aware of Mr. Jones’s military service and 

engagement in protected activity (i.e., Mr. Jones’s previous VEOA and USERRA claims against HHS) when Mr. 

Mathis reviewed Mr. Jones’s application. In fact, Mr. 

Mathis had testified on behalf of HHS in another proceeding brought by Mr. Jones for non-selection regarding 

another CDC job vacancy. In that proceeding, Mr. Mathis 

testified that he failed to accord Mr. Jones veterans’ 

preference because Mr. Mathis believed that three years 

of service was required to be preference-eligible. Mr. 

Mathis was mistaken; Mr. Jones was entitled to veterans’

preference. See Jones III, 544 F. App’x at 978 (affirming 

decision finding failure to afford preference was harmless 

error because the vacancy was revoked and because Mr. 

Jones was not sufficiently qualified). Mr. Jones presented 

no evidence that Mr. Mathis acted in bad faith in committing that error, or in testifying about it. 

The administrative judge ultimately found “no evidence that [Mr.] Mathis had any hostility toward veterans.” In fact, the administrative judge noted that Mr. 

Mathis was himself a U.S. Army veteran. The administrative judge also found Mr. Mathis’s testimony regarding 

 

1 The administrative judge noted that Mr. Jones 

had not argued that the initial scoring mistake demonstrated any discrimination or retaliation under USERRA. 

The administrative judge also found that the initial 

mistake would not support any such claims, as the mistake affected more than 100 applicants indiscriminately. 
JONES v. HHS 7

his assessment of Mr. Jones’s application credible and 

supported by the record.

After the administrative judge denied Mr. Jones’s 

claims in an initial decision, Mr. Jones petitioned this 

court for review on April 10, 2017. The administrative 

judge’s initial decision became the final decision of the 

Board on April 28, 2017, at which point Mr. Jones’s 

petition became ripe for review.

II

To obtain relief under the VEOA, a petitioner must 

show that the potential employer violated his veterans’ 

preference rights. See 5 U.S.C. § 3311(2) (“preference 

eligible is entitled to credit . . . for all experience material 

to the position”); 5 C.F.R. § 302.302(d); Lazaro v. Dep’t of 

Veterans Affairs, 666 F.3d 1316, 1318-19 (Fed. Cir. 2012) 

(eligible veteran is entitled to credit for “all valuable 

experience”). Mr. Jones does not point to any evidence 

showing that his VEOA rights were violated in the course 

of the agency’s selection process. Instead, he simply 

challenges the Board’s finding that Mr. Mathis testified 

credibly that he considered all of Mr. Jones’s relevant 

experiences. 

We see no reason to question the Board’s credibility 

finding. See Jones VII, 834 F.3d at 1368 (“witness credibility determinations are virtually unreviewable”); Pope v. 

U.S. Postal Serv., 114 F.3d 1144, 11149 (Fed. Cir. 1997);

accord Jones IX, No. 2017-1353, 2017 WL 3016959, at *3. 

Mr. Jones points to the fact that, in a separate Board 

proceeding, Mr. Mathis expressed the mistaken belief 

that Mr. Jones was not entitled to veterans’ preference

credit because he did not serve for as much as three years. 

Mr. Jones, however, does not contend that Mr. Mathis’s 

mistaken testimony was the product of fabrication on his 

part. Nor does Mr. Jones contend that Mr. Mathis failed 

to accord him veterans’ preference credit in the selection 

process underlying this proceeding. Even if there were a 
8 JONES v. HHS

question regarding Mr. Mathis’s credibility, Mr. Jones 

does not point to any evidence to prove that his VEOA 

rights were violated in the selection process.

Mr. Jones also fails to show that the agency violated 

his USERRA rights. To prove discrimination or retaliation under USERRA, a petitioner must show that his 

military service, or his assertion of USERRA rights, was a 

“substantial or motivating factor” for the adverse action. 

See 38 U.S.C. § 4311; Hayden v. Dep’t of Air Force, 812 

F.3d 1351, 1357, 1363 (Fed. Cir. 2016); Sheehan v. Dep’t of 

the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Both 

types of claims are defeated if the potential employer 

shows that the adverse action would have occurred regardless of the petitioner’s military service. See Hayden, 

812 F.3d at 1358, 1363; see also Sheehan, 240 F.3d at 

1013. 

In his USERRA argument, Mr. Jones again attacks 

Mr. Mathis’s credibility. We find no merit to that argument. That attack carries even less weight in the 

USERRA context than in the VEOA context, because Mr. 

Mathis is himself a veteran of the U.S. Army. As the 

Board found, Mr. Jones points to “no evidence that [Mr.] 

Mathis had any hostility toward veterans,” or that Mr. 

Mathis would have discriminated against Mr. Jones on 

that basis. 

Even apart from the Board’s credibility finding, substantial evidence supports the Board’s finding that Mr. 

Jones lacked the necessary qualifications for the position 

in question. Upon examining the vacancy announcement 

and the application materials, the Board found that the 

assessment that Mr. Jones lacked the necessary qualifications was “well supported by documentary evidence in the 

record.” Mr. Jones does not challenge that finding or 

point to anything in those materials that demonstrates 

otherwise. That finding disposes of Mr. Jones’s discrimination and retaliation claims under USERRA, as it estab-
JONES v. HHS 9

lishes that his non-selection was the result of his lack of 

the qualifications required for the position, not the result 

of discrimination against him on account of his military 

service or retaliation for his assertion of USERRA rights.

Mr. Jones also makes several evidentiary and procedural arguments. He contends that the administrative 

judge (1) “delet[ed] all [his] evidence from the efile system,” Pet’r Br. at 1; (2) “den[ied] him his right to call any 

witness,” id.; (3) did “not consider[] the relevant evidence 

that was before her,” id.; (4) took too long to render a 

decision, id. at 12-13; and (5) should have recused herself

for bias, id. at 1, 10. 

As to the first contention, there is no reason to believe 

any evidence was deleted from the record. In his appendix submitted to this court, Mr. Jones has included four

extra-record documents that he contends were deleted 

from the record below. Nothing supports his claim that 

those materials were introduced and then deleted from 

the record. In any event, none of those documents are 

relevant.2

Mr. Jones’s second contention—that he was denied 

the right to call any witnesses—is false. Mr. Jones requested that he be allowed to call Mr. Mathis and himself 

as witnesses, and the administrative judge allowed both 

to testify. The administrative judge denied Mr. Jones’s 

request for six other witnesses for the reason that their 

testimony was irrelevant. Mr. Jones provides no basis to 

question that determination. 

Mr. Jones’s third argument incorrectly assumes that 

the evidence he highlights was relevant. Mr. Jones 

contends that the administrative judge “omitted from the 

 

2 As Mr. Jones admits, one of those documents is 

dated February 17, 2017, after the record below was 

closed.
10 JONES v. HHS

decision the fact that [he] has been found ‘Best Qualified’ 

for at least 177+1 Public Health advisor positions since 

2014.” Pet’r Br. at 12 (emphases omitted). Without 

further explanation of the qualifications required for 

those positions, that fact is not relevant to whether Mr. 

Jones was qualified for the vacancy at issue in this case.3

Mr. Jones next argues that the eight-month delay between the hearing and the administrative judge’s decision 

is a “dispositive issue.” It is not. As we explained previously in both Jones VII, 834 F.3d at 1368, and Jones IX, 

No. 2017-1353, 2017 WL 3016959, at *4, there are no 

statutory or regulatory time limits for the issuance of

such a decision.

Finally, we find no error regarding the administrative 

judge’s denial of Mr. Jones’s motion for recusal. Mr. 

Jones points to the administrative judge’s termination of 

the hearing in another of Mr. Jones’s suits based on

contumacious conduct. We held that the administrative 

judge’s termination of that proceeding was not improper. 

Jones IX, No. 2017-1353, 2017 WL 3016959, at *4 (termination occurred only after multiple warnings and Mr. 

Jones’s “rude and disrespectful conduct which regularly 

escalate[d] from advocacy to contumaciousness”). Furthermore, “opinions held by judges as a result of what 

they learned in earlier proceedings” are “not subject to 

deprecatory characterization as ‘bias’ or ‘prejudice.’” 

 

3 If the evaluation process for those “177+1” positions is the same as that used by HHS for the vacancy at 

issue, Mr. Jones would be placed in the “Best Qualified” 

category based on his self-assessment, not the agency’s 

assessment. See, e.g., Jones V, 640 F. App’x at 861 (affirming ultimate determination that Mr. Jones was not 

qualified for vacancy, even though he was placed in “Best 

Qualified” category based on his self-assessment, in which 

“he rated himself as an expert in every listed category.”).
JONES v. HHS 11

Liteky v. United States, 510 U.S. 540, 551 (1994). Mr. 

Jones has not shown that the administrative judge displayed a “deep-seated . . . antagonism that would make 

fair judgment impossible.” Bieber v. Dep’t of Army, 287 

F.3d 1358, 1362 (Fed. Cir. 2002). Rather, the facts in this 

case show that the administrative judge conducted a fair 

hearing in which Mr. Jones was accorded an opportunity 

to present evidence and argue his case. The administrative judge ultimately issued a well-considered decision 

disposing of each of his claims.

Mr. Jones has presented many other arguments in his

petition based on evidence that is not part of the record

and matters other than the case before us on this appeal.4 

Because that evidence and those other matters are not 

properly before us in this proceeding, we decline to consider them. 

Each party shall bear its own costs for this appeal. 

AFFIRMED

 

4 Most of those facts pertain to other cases Mr. 

Jones has brought against HHS.