UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-15-0042-I-1

DATE: April 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Robert E. Nerthling, II, 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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, and based on the following points and authorities, 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 As the parties are familiar with the facts of this case, we are only reciting 

the background facts necessary to frame and decide the issues presented by the 

appellant on review. The appellant filed a VEOA appeal alleging that the Centers 

for Disease Control and Prevention (CDC), National Center for Emerging and 

Zoonotic Infectious Diseases, Division of Global Migration and Quarantine,

Department of Health and Human Services (HHS), violated his veterans’ 

preference rights by failing to select him for the GS-13 Public Health Advisor 

position advertised under delegated examining announcement HHS-CDC-D3-14-

1173393 (Vacancy ID 1173393). Initial Appeal File (IAF), Tab 1. Concurrently 

with Vacancy ID 1173393, the agency issued merit promotion announcement 

HHS-CDC-M3-14-1173430 (Vacancy ID 1173430) for the same Public Health 

Advisor position, and stated that applicants were required to apply separately for 

each announcement to be considered. IAF, Tab 6 at 59, Tab 8 at 7. The appellant 

only applied for the position under Vacancy ID 1173393, and the human 

resources specialists determined that he was not qualified because he lacked the 
3

specialized experience set forth in the job announcement.2 Id. at 16; IAF, Tab 9 

at 20-21, 24. The agency submitted documents showing that it made a selection 

using the internal merit promotion process under Vacancy ID 1173430, for which 

the appellant did not apply, and returned unused the delegated examining 

certificate issued under Vacancy ID 1173393. IAF, Tab 6 at 14, Tab 8 at 5, Tab 9 

at 21, 24-25.

¶3 The administrative judge issued an order finding no dispute of material fact

and denied the appellant’s hearing request based on his review of the parties’ 

submissions.

3

 IAF, Tab 7 at 3. The administrative judge set a date for the close 

of the record and allowed the parties an additional opportunity to supplement the 

record before it closed. Id. at 2-4. The agency provided sworn statements from 

the human resources specialists who reviewed the appellant’s application package 

and declared under the penalty of perjury that the agency made its selection from 

the merit promotion announcement certificate and made no selection from the 

delegated examining announcement certificate. IAF, Tab 9 at 21, 24-25. The 

human resources specialists also swore that they considered all of the information 

in the appellant’s application package and determined that he lacked the 1 year of 

specialized experience required for the position.

4

 IAF, Tab 9 at 20-21, 24. 

 2 The appellant does not dispute that the agency adjudicated his 5-point veterans’ 

preference in processing his application. See IAF, Tab 6 at 16. 

3 With regard to the appellant’s additional arguments on appeal, the administrative 

judge found that he had no jurisdiction under VEOA to consider the appellant’s claim 

that the agency committed various prohibited personnel practices. IAF, Tab 7 at 2. The 

administrative judge also found that he had no jurisdiction to determine whether the 

agency fairly tested the relative capacity and fitness of applicants. Id. at 3. Lastly, the 

administrative judge found that the appellant was not due any priority consideration as 

a result of his past VEOA cases. Id. 

4 The human resources specialists determined that the appellant lacked the required 

specialized experience in “overseeing, evaluating and providing technical assistance on 

public health programs involving preparedness and emergency response or 

detection/prevention of infectious diseases equivalent to the GS-12 grade level in the 

Federal service.” IAF, Tab 9 at 20, 24; see IAF, Tab 5 at 60, 62.
4

¶4 The appellant responded by disputing that the agency made a selection from 

the merit promotion certificate and arguing that he is entitled to priority 

placement. IAF, Tab 10 at 6, 23. He argued that he submitted evidence showing 

that the agency has a pattern and practice of violating the rights of veterans and 

that HHS employees and the Department of Veterans Administration employees 

lie. IAF, Tab 10 at 22-24. He also argued that hearings were essential in his 

prior VEOA appeals, and he provided background information about his prior 

VEOA appeals and related documentation. IAF, Tabs 10-11. 

¶5 Based on the written record, the administrative judge found that he had 

jurisdiction over the appeal pursuant to 5 U.S.C. § 3330a(a)(1)(A) and denied the 

appellant’s request for corrective action under VEOA, finding that the appellant 

failed to prove that the agency violated his veterans’ preference rights in this 

case. IAF, Tab 12, Initial Decision (ID) at 1-2, 8. The administrative judge 

found in pertinent part that the agency proved that it selected an applicant for the 

Public Health Advisor position from the merit promotion certificate. ID at 6. 

With regard to the appellant’s application under the delegated examining 

announcement, the administrative judge found that the record showed that the 

agency credited all of the appellant’s valuable experience material in determining 

that he was not qualified. ID at 6. In reaching his decision, the administrative 

judge considered and rejected the appellant’s argument that he was entitled to 

priority consideration. ID at 8. The administrative judge further found that he 

lacked the authority to consider the agency’s past hiring actions in deciding this 

VEOA appeal, noting that the appellant did not allege that the same officials 

involved in those hiring decisions were involved in this case or made attempts to 

influence the selecting official in this case. ID at 8. 

¶6 The appellant has filed a petition for review asking the Board to remand the 

appeal to the Denver Field Office with instructions to hold a hearing for the 

agency to explain its hiring decision and reasserting the arguments he made on 

appeal. Petition for Review (PFR) File, Tab 1; IAF, Tabs 4, 10. The agency has 
5

responded in opposition to the appellant’s petition for review, and the appellant 

has replied to the agency’s response. PFR File, Tabs 3-4. 

¶7 Contrary to the appellant’s arguments on review, 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). Under 5 U.S.C. § 3311(2) 

and 5 C.F.R. § 302.302(d), the Board’s role is limited to determining whether the 

hiring agency improperly omitted, overlooked, or excluded a portion of the 

appellant’s experiences or work history in assessing his qualifications for the 

vacancy, and the Board will not reevaluate the weight the agency accorded these 

experiences in reaching its decision that the appellant was not qualified for a 

given position of employment. Miller v. Federal Deposit Insurance 

Corporation, 121 M.S.P.R. 88, ¶ 9 (2014).

¶8 On review, the appellant fails to identify any valuable experience or work 

history included in the application he submitted under the delegated examining 

announcement that the agency purportedly omitted, overlooked, or excluded in 

assessing whether he had the specialized experience required for the position. As 

noted previously, the agency submitted declarations from human resources 

specialists swearing under penalty of perjury that they reviewed all of the 

documents in the appellant’s application package and found that he lacked the 

required 1 year of specialized experience for the announced position. IAF, Tab 9 

at 21, 24-25. The human resources specialists also swore that they made no 

selection from the delegated examining certificate. Id. Although the appellant 

disputes their determination that he lacked the required experience, 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 

with the agency. PFR File, Tab 1 at 13, 15; see Miller, 121 M.S.P.R. 88, ¶ 12. 

Moreover, the agency’s decision to make no selection from the certificate issued 

under the delegated examining announcement did not deny the appellant his 
6

opportunity to compete for the position or otherwise violate his rights under a 

statute or regulation relating to veterans’ preference. See Dean v. Consumer 

Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008). We agree with the 

administrative judge’s finding that the agency did not violate the appellant’s 

rights under VEOA with respect to the position for which he applied. ID at 8. 

¶9 The appellant’s unfounded speculation that the agency may have lied about 

making a selection from the merit promotion certificate does not create a genuine

dispute of material fact in this appeal. PFR File, Tab 1 at 11-14. A factual 

dispute is only genuine if there is sufficient evidence, favoring the party seeking 

the evidentiary hearing, for the administrative judge to rule in favor of that party 

should he credit that party’s evidence. See Redd v. U.S. Postal 

Service, 101 M.S.P.R. 182, ¶ 14 (2006). The record reflects that the 

administrative judge ordered the agency to submit proof that it filled the Public 

Health Analyst position at issue in this appeal with a candidate from the merit 

promotion certificate, the agency submitted the requested documents, and the 

administrative judge considered that evidence in making his decision. ID at 2, 5; 

IAF, Tab 7, Tab 8 at 5, Tab 9 at 21, 24-25. We find that the appellant had a full 

and fair opportunity to develop the record on the dispositive issues and to dispute 

the agency’s evidence and, despite his arguments to the contrary, he failed to 

identify any genuine dispute of material fact that would warrant a hearing.

¶10 The agency’s selection under the concurrent merit promotion 

announcement, for which the appellant did not apply, provides no basis for relief 

under VEOA. An agency has the discretion to fill a vacant position by any 

authorized method, and an agency that considers applicants under both 

competitive examination and merit promotion procedures may select a candidate 

under the merit promotion procedures. See Joseph v. Federal Trade 

Commission, 505 F.3d 1380, 1383-84 (Fed. Cir. 2007); Dean, 108 M.S.P.R. 137, 

¶ 11. VEOA only gives the appellant the right to compete for vacant positions; 
7

the statute does not ensure that he will be successful. See Abell v. Department of 

the Navy, 343 F.3d 1378, 1383 (Fed. Cir. 2003). 

¶11 The appellant’s remaining arguments on review are not dispositive and 

present no basis for disturbing the initial decision denying his request for 

corrective action under VEOA. PFR File, Tabs 1, 4. 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 United 

States 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 
8

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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board