UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-14-0634-I-1

DATE: April 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Madeha Chaudry Dastgir, Esquire, Chicago, Illinois, 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 In September 2014, the agency sought applicants to fill a Public Health 

Advisor (PHA) position. See Initial Appeal File (IAF), Tab 8 at 69-74 (PHA job 

posting reflecting announcement number HHS-SAMHSA-DE-14-1211266). The 

appellant submitted an application, along with documentation of his veterans’

preference. Id. at 35-68. However, after reviewing his application, the agency 

informed him that he was ineligible for the PHA position because he did not meet 

the minimum requirements. Id. at 34. Subsequently, the appellant filed a 

veterans’ preference complaint with the Department of Labor (DOL), but DOL 

closed its investigation without providing him any relief. See IAF, Tab 1 at 8.

¶3 Citing VEOA, the appellant filed the instant appeal, disputing the agency’s 

determination that he was ineligible for the PHA position. Id. at 3, 5. The 

administrative judge found that the Board had jurisdiction over the appeal 

pursuant to 5 U.S.C. § 3330a but denied the appellant’s request for corrective 

action based on the written record. IAF, Tab 15, Initial Decision (ID). The 

appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. 

The agency has filed a response. PFR File, Tab 3.
3

¶4 The appellant seems to argue that the administrative judge erred in finding 

that the agency did not violate any of his veterans’ preference rights in 

determining that he was not qualified for the PHA position. PFR File, Tab 1 at 

9-12. He also asserts that the administrative judge erred in deciding his appeal on 

the written record, without granting his request for a hearing. Id. at 6-11. We 

find no merit to either argument. 2

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

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

statutory or regulatory veterans’ preference rights in its selection process. Graves 

v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 10 (2010). A 

preponderance of the evidence is that degree of relevant evidence that a 

reasonable person, considering the record as a whole, would accept as sufficient 

to find that a contested fact is more likely to be true than untrue. 5 C.F.R. 

§ 1201.4(q). The administrative judge found that the appellant failed to meet that 

burden, and we agree.

¶6 Preference-eligible veterans applying for federal employment have the right 

“to credit for all experience material to the position for which examined, 

 2 The appellant’s petition includes several additional assertions that do not provide a 

basis to disturb the initial decision. For example, the appellant generally criticizes the 

agency for not hiring him for any one of at least 37 other positions for which he 

applied; for expending significant legal fees defending against his various appeals; for 

its rate of veteran hiring; and for its response to recent events, such as natural disasters. 

PFR File, Tab 1 at 14-16. None of these assertions warrant further review in this, his 

appeal of the agency’s determination that he was ineligible for this one specific PHA 

vacancy.

The appellant also argues that the administrative judge erred in dismissing his claim 

that he was entitled to “priority placement” in the selection process. Id. at 13. 

However, he failed to identify, and we are unaware of, evidence in the record reflecting 

any such entitlement. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 

(1980) (before the Board will undertake the burden of a complete review of the record, 

a petitioning party must explain why a challenged factual determination is incorrect, 

and identify specific evidence in record which demonstrates the error).
4

including experience gained in religious, civic welfare, service, and 

organizational activities, regardless of whether” such experience is 

unpaid. 5 U.S.C. § 3311(2); 5 C.F.R. § 302.302(d). However, it would be 

inconsistent with the Board’s role under VEOA to engage in a fact-based review 

of how an agency weighed and assessed a preference eligible’s experiences in 

making its hiring decisions and determinations about the preference eligible’s 

qualifications for a position. Miller v. Federal Deposit Insurance 

Corporation, 121 M.S.P.R. 88, ¶ 12 (2014). Therefore, while the Board will 

determine 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, the Board will not reevaluate the weight the 

agency accorded those experiences in reaching its decision that the appellant was 

not qualified for a given position. Id. (citing Kirkendall v. Department of the 

Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009)). 

¶7 Below, the administrative judge found that the agency credited the appellant 

with all of his valuable experience material to the PHA position in determining 

that he was not qualified. ID at 6-8. We agree.

¶8 To be eligible for the PHA position at issue, candidates were required to 

possess at least 1 year of specialized experience. See IAF, Tab 8 at 70 (full 

description of the requisite specialized experience). In a sworn declaration, the 

agency official responsible for determining whether applicants possessed that 

requisite experience explained why the appellant was deemed unqualified. IAF, 

Tab 11 at 12-14. That official, C.J., indicated that the appellant’s application 

failed to demonstrate the requisite “experience providing advice and guidance to 

State and local governments and to various public, nonprofit and private agencies 

and organizations . . . on the planning, implementation, and evaluation of 

comprehensive services for adults and/or children with mental health issues.” Id. 

at 13. She also concluded that his application failed to demonstrate the requisite 
5

experience “analyzing data on public health, mental health, substance use 

treatment and prevention systems.” Id.

¶9 The appellant argues that C.J.’s sworn declaration omitted pertinent phrases 

from his application, which consisted of a 32-page, single-spaced narrative. PFR 

File, Tab 1 at 9 (referring to the phrases “mental health issues” and “reality 

therapy”); see IAF, Tab 8 at 37-68 (the appellant’s application). He also argues 

that her sworn declaration failed to mention portions of his application that 

documented his caring for fellow soldiers during trying events in Vietnam. PFR 

File, Tab 1 at 9-11. However, the agency explicitly cited the portions of the 

appellant’s application that he claims were overlooked in explaining why his 

experience did not amount to that which was necessary for its PHA position. 

Compare id., with IAF, Tab 11 at 13 (C.J. declaration, discussing specific 

sections of the appellant’s application, including the portions the appellant 

claimed were omitted, which can be found at IAF, Tab 8 at 49-50, 54-56). While 

the appellant may disagree with the agency’s conclusion that his experience failed 

to demonstrate the required qualifications for the PHA position, there is no 

evidence that the agency improperly omitted, overlooked, or excluded a portion 

of his experiences or work history. Cf. Kirkendall, 573 F.3d at 1324 (finding a 

veterans’ preference violation where the agency “simply ignored” military 

documents reflecting relevant experience because it was not printed within the 

appellant’s application); Phillips v. Department of the Navy, 110 M.S.P.R. 184, 

¶¶ 8, 12 (2008) (remanding to determine whether the agency had considered the 

preference-eligible appellant’s documented experience, where the record 

suggested that the agency had instead relied solely on his being a GS-6 to 

conclude that he did not have the minimum qualifications for a GS-8 position). 

Therefore, we find no reason to disturb the administrative judge’s conclusion that 

the agency considered all of the appellant’s relevant experience before deeming 

him not qualified for the PHA vacancy. See ID at 6-8. Accordingly, the 
6

appellant failed to meet his burden of proving that the agency violated his 

veterans’ preference rights. 

¶10 Although the appellant requested a hearing in this matter, IAF, Tab 1 at 2, 

the Board has the authority to decide a VEOA appeal on the merits without a 

hearing when there is no genuine dispute of material fact and one party must 

prevail as a matter of law. Haasz v. Department of Veterans 

Affairs, 108 M.S.P.R. 349, ¶ 9 (2008). A factual dispute is “material” if, in light 

of the governing law, its resolution could affect the outcome. Redd v. U.S. Postal 

Service, 101 M.S.P.R. 182, ¶ 14 (2006). A factual dispute is “genuine” when 

there is sufficient evidence favoring the party seeking an evidentiary hearing for 

the administrative judge to rule in favor of that party should that party’s evidence 

be credited. Id. 

¶11 The appellant has failed to identify any persuasive evidence that warranted 

a hearing. He instead argues that a hearing would have provided an opportunity 

to elicit testimony from the aforementioned agency official, C.J. PFR File, Tab 1 

at 9-11. The appellant suggests that C.J., in theory, could contradict her own 

sworn declaration if she testified at a hearing. Id. However, that unfounded 

speculation does not amount to a genuine factual dispute. Moreover, to the extent 

that he wished to question how agency officials weighed his experience, such an 

inquiry is beyond the scope of this appeal, as explained above. Accordingly, we 

find no error in the administrative judge’s denial of the appellant’s hearing 

request.

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:
7

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 

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
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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