UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-14-0421-I-1

DATE: April 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Sara M. Klayton, Washington, D.C., 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 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 The appellant, a 5-point (TP) preference-eligible veteran, applied for a 

GS-13 Public Health Advisor position under delegated examining vacancy 

announcement HHS-SAMHSA-DE-14-1085367, which was open to United States 

citizens. Initial Appeal File (IAF), Tab 4 at 27-66. The agency announced its 

intention to fill one vacancy and informed the applicants of a separate merit 

promotion announcement by stating that: 

This vacancy is also being announced concurrently with vacancy 

announcement HHS-SAMHSA-MP-1085273 under merit 

promotion procedures. Please review that announcement to see if 

you are eligible for consideration under merit promotion 

procedures. NOTE: Applicants must apply separately for each 

announcement in order to be considered.

Id. at 59. It is undisputed that the appellant applied only under the delegated 

examining announcement and that the agency adjudicated his TP veterans’ 

preference in processing his application. IAF, Tab 20, Initial Decision (ID) at 6. 

¶3 In the delegated examining announcement, the agency informed applicants 

that it would use the category rating procedure to rank and select eligible 
3

candidates and that qualified candidates would be assigned to the following 

categories: Best Qualified, Well Qualified, and Qualified. IAF, Tab 4 at 62-63. 

The agency also explained that it would apply veterans’ preference by placing 

preference eligibles at the top of their assigned category and considering them 

before nonpreference eligibles in that category. Id. at 63. It is undisputed that 

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

rated him ineligible and did not refer him to the selecting official. ID at 6; IAF, 

Tab 4 at 16. 

¶4 After exhausting his administrative remedies before the Department of 

Labor (DOL), the appellant timely filed an appeal alleging that the agency 

violated his veterans’ preference rights in not selecting him for the GS-13 Public 

Health Advisor position under vacancy announcement HHS-SAMHSA-DE-14-

1085367. IAF, Tab 1. On appeal, the appellant argued that the agency’s 

selection process violated his veterans’ preference rights by “not fairly testing the 

applicants” and by not crediting his military experience in violation of 5 U.S.C. 

§ 3311. IAF, Tab 1 at 5. The appellant also argued that the agency may have 

used “one or more Prohibited Personnel Practices” in violation of 5 U.S.C. 

§ 2302. Id. In support of his appeal, the appellant submitted a copy of the DOL 

file closure letter and the notice he received from the agency informing him that 

the agency adjudicated his 5-point (TP) veterans’ preference but he was ineligible 

for the Public Health Advisor GS-13 position because he did not meet the 

minimum requirements. IAF, Tab 1 at 7-8. 

¶5 The administrative judge found that the appellant established jurisdiction 

over his appeal pursuant to 5 U.S.C. § 3330a with respect to the issues that he 

exhausted before DOL, and “that within the ambit of issues raised with DOL is 

the appellant’s allegation that the agency failed to properly credit his experience 
4

in violation of 5 U.S.C. § 3311.”2 IAF, Tab 9 at 3. The administrative judge 

ordered the agency to submit proof that it properly credited the appellant’s 

experience as required by 5 U.S.C. § 3311. IAF, Tab 11 at 1. The administrative 

judge also ordered the appellant to identify any material facts in dispute. Id. at 2. 

The parties responded, and the administrative judge issued an order finding no 

genuine issues of material facts in dispute and allowing the parties to submit 

additional evidence and argument before the record closed. IAF, Tabs 12-13, 15, 

17. 

¶6 The agency submitted documentation showing that it filled the Public 

Health Analyst position by selecting a candidate from the non-competitive 

referral list issued under the merit-promotion vacancy announcement. IAF, 

Tab 15 at 16. The agency also submitted the declaration of a human resources 

specialist swearing under the penalty of perjury that she reviewed all of the 

appellant’s application materials, including his resume, and determined that he 

was ineligible for the position because he lacked the required specialized 

experience in substance abuse treatment delivery systems or homeless services.

3

 

 2 The administrative judge found that he lacked jurisdiction over the following 

allegations that the appellant failed to exhaust at DOL. Specifically, his allegation that 

the agency failed to maintain a system that fairly tests the relative capacity and fitness 

of the applicants sought in violation of 5 U.S.C. § 3304(a)(1); and his allegation that 

the agency’s determination was the product of violations of 5 U.S.C. § 2302(b)(6), and 

thereby violated an unspecified veterans’ preference right unrecognized by VEOA. ID

at 4. 

3 As relevant to the instant appeal, the GS-13 position required the following 

specialized experience: 

Must have one year of specialized experience equivalent to the GS-12 

level in the Federal service. Examples of specialized experience includes: 

Experience working with substance abuse treatment delivery systems, and 

homeless services including, but not limited to, public, private for-profit, 

and private non-profit organizations responsible for planning, 

implementing and evaluating early intervention, treatment housing and 

recovery support services for individuals with substance abuse disorders 

and co-occurring disorders. Monitors grant and contract performance, 

provide technical assistance and conduct analyses of relevant 
5

IAF, Tab 15 at 12. In response, the appellant disputed the declaration of the 

human resources specialist and stated that he would like to question her in a 

hearing. IAF, Tab 18 at 24. He also disputed that the agency made its selection 

from the merit promotion certificate. Id. He discussed his prior VEOA appeals 

and his alleged mistreatment due to “continued violations of his legal rights as a 

veteran.” Id. at 8-21. He also argued, among other things, that Board is required 

to examine merits of the agency’s action. Id. at 23. 

¶7 The administrative judge issued an initial decision finding that the agency 

must prevail as a matter of law and denied the appellant’s request for corrective 

action under VEOA. ID at 1-2, 7. Based on his finding that there was no genuine 

dispute of material fact, the administrative judge exercised his authority to decide 

the appeal without a holding hearing. ID at 1. In reaching his decision, the 

administrative judge found that the human resources specialist considered all of 

the valuable experience in the appellant’s resume and application package in 

determining that the appellant was ineligible for the position. ID at 6. The 

administrative judge explained that VEOA does not empower the Board to 

consider the merits of the agency’s action, and that the Board’s role is limited to 

determining whether the agency improperly omitted, overlooked, or excluded a 

portion of the appellant’s experiences or work history in assessing his job 

qualifications. ID at 4, 7. The administrative judge further found that the

appellant did not allege that the agency “omitted, overlooked, or excluded,” any 

part of his 30-page resume in determining that he lacked the required specialized 

experience. ID at 6. 

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

appeal to the field office with instructions to hold a hearing for the agency to 

 

programmatic issues in order to recommend solutions for improve 

program outcomes. Must have experience leading a team, preparing and 

conducting presentations and preparing budget analyses and/or estimates 

of resource needs. 

IAF, Tab 4 at 61.
6

explain its hiring decision. Petition for Review (PFR) File, Tab 1 at 21. In 

support of his request, the appellant reasserts his argument that the agency has a 

pattern and practice of denying veterans’ legal rights and that he was improperly 

denied a hearing on the merits of his appeal because he identified disputed facts 

in his case. Id. at 7, 12, 21; IAF, Tab 18 at 23-25. The appellant also argues that 

hearings should be mandatory upon request. PFR File, Tab 1 at 6. The agency 

responded in opposition to the appellant’s petition. PFR File, Tab 3. 

¶9 To be entitled to relief under VEOA, the appellant must prove by 

preponderant evidence that the agency’s selection violated one or more of his 

statutory or regulatory veterans’ preference rights. Dale v. Department of 

Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). VEOA does not guarantee the 

preference-eligible appellant a position; the statute only affords him the right to 

compete for the position. See Abell v. Department of the Navy, 92 M.S.P.R. 397, 

400-01 (2002), aff’d, 343 F.3d 1378 (Fed. Cir. 2003). 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). 

¶10 On review, the appellant reasserts the argument he made on appeal that the 

agency’s employees have lied and omitted qualifying information in assessing his 

qualifications for past vacancies. PFR File, Tab 1 at 12-13; IAF, Tab 18 at 23-24. 

In making this argument, the appellant still fails to identify any specific 

experience or work history in his application package that the agency improperly 
7

omitted or overlooked in assessing whether he had the specialized experience 

required under the vacancy announcement relevant in this appeal. Although the 

appellant generally disputes the declaration of the human resources specialist who 

reviewed his application package and determined that he was ineligible for the 

position, 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 16; see Miller, 121 M.S.P.R. 

88, ¶ 12. 

¶11 The appellant also disputes that the agency hired from the merit promotion 

certificate because of the general “propensity of certain Agency Representatives 

and employees to lie.” PFR File, Tab 1 at 14; IAF, Tab 18 at 24. This alleged 

factual dispute is not material because its resolution could not affect the outcome 

of this appeal.4

 Regardless of whether the agency hired from the merit promotion 

certificate, the appellant did not prove that the agency violated one or more of his 

statutory or regulatory rights in its selection process under the delegated 

examining vacancy announcement for which he applied. See Dale, 102 M.S.P.R. 

646, ¶ 10. 

¶12 The appellant also challenges the finding of the administrative judge that 

the Board lacks jurisdiction to consider the claims that he failed to exhaust with

DOL, and he attempts to reassert some of those claims on review. PFR File, 

Tab 1 at 19; ID at 4; see supra note 2. Although the Board uses a liberal pleading 

standard for allegations of veterans’ preference in a VEOA appeal, evidence of 

the exhaustion requirement is mandatory under the statute and is not subject to 

the same liberal construction. Mims v. Social Security 

Administration, 120 M.S.P.R. 213, ¶ 24 (2013). Because the appellant offers no 

 4 We note that the appellant identified no evidence in the record casting any doubt on 

the veracity of the agency’s documentation showing that it filled the Public Health 

Analyst position by selecting a candidate from the non-competitive referral list issued 

under the merit-promotion vacancy announcement. See IAF, Tab 15 at 16. 
8

new proof that he satisfied the exhaustion requirement with respect to any 

additional claims on review, the Board has no jurisdiction to consider them. PFR 

File, Tab 1 at 19; ID at 4. 

¶13 We have considered the appellant’s remaining arguments on review, most of 

which pertain to the agency’s actions in his prior VEOA appeals and his general 

disagreement with the administrative judge’s decision in this VEOA appeal, and 

we find no basis for disturbing the initial decision. PFR File, Tabs 1, 3. Because 

the appellant offers no new and material evidence that was unavailable before the 

record closed, and he has not shown that the administrative judge erroneously 

interpreted a statute or regulation, we 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 
9

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 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