UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-15-0026-I-1

DATE: April 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Shankar Ramamurthy, 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 April 2014, the agency sought applicants to fill a Public Health Advisor 

position. See Initial Appeal File (IAF), Tab 9 at 83-88. The agency posted the 

vacancy under both a delegated examining announcement, HHS-OASH-DE-14-

1088956 (DE-56), and a merit promotion announcement, HHS-OASH-MP-14-

1088936 (MP-36). See id. at 83 (DE-56 announcement noting the concurrent 

MP-36 announcement and warning that applicants must apply to each separately 

to be considered for both). The appellant applied for the DE-56 announcement 

and was rated as among the “best qualified.” Id. at 41-48 (DE-56 certification of 

best qualified candidates, including the appellant), 53-82 (the appellant’s resume 

with reference to the DE-56 announcement); see id. at 51-52 (reflecting the 

appellant’s 5-point veterans’ preference). However, it is undisputed that the 

appellant did not apply for the MP-36 announcement.

¶3 The selecting official reviewed the certificates of eligible applicants for 

both the DE-56 and MP-36 announcements. See id. at 98-108. He did not select 

the appellant or any other eligible applicant from the DE-56 certificate to fill the 

Public Health Advisor vacancy. Id. at 98-105. However, he did fill the vacancy 
3

with an eligible applicant from the MP-36 certificate. Id. at 106-08. 

Subsequently, the appellant filed a veterans’ preference complaint with the 

Department of Labor (DOL), but DOL closed its investigation without providing 

the appellant any relief. See IAF, Tab 1 at 8. 

¶4 Citing VEOA, the appellant appealed his nonselection to the Board. 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. IAF, Tab 16, Initial Decision (ID). The appellant has filed a 

petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed 

a response, and the appellant has replied. PFR File, Tabs 3-4.

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

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

Public Health Advisor vacancy through the MP-36 announcement. PFR File, Tab 

1 at 9-11. 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 

6-8. We find no merit to either argument. 2

 

¶6 To be entitled to relief under VEOA, an 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). A preponderance of the 

evidence is that degree of relevant evidence that a reasonable person, considering 

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

basis to disturb the initial decision. For example, the appellant, in an apparent attempt 

to establish a pattern of agency impropriety, directs our attention to emails he 

discovered from one agency official regarding unrelated job postings dated years before 

the vacancy at issue in this appeal. See PFR File, Tab 1 at 7-8 (referencing IAF, Tab 5 

at 8-9). He also 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. Id. at 10-12. None of these assertions warrant further 

review in this, the appeal of his nonselection to the agency’s Public Health Advisor 

vacancy.
4

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. 

¶7 An agency has the discretion to fill a vacant position by any authorized 

method. Joseph v. Federal Trade Commission, 505 F.3d 1380, 1384 (Fed. Cir. 

2007). There is nothing preventing the agency from doing what it did 

here-soliciting both delegated examining and merit promotion applicants 

simultaneously but only filling its vacancy from the merit promotion certificate. 

See id. (finding that the agency did not violate VEOA by conducting 

“simultaneous parallel procedures under the competitive examination and merit 

promotion processes to fill the same position” and selecting someone other than 

the veteran under the merit promotion process); Dean v. Consumer Product Safety 

Commission, 108 M.S.P.R. 137, ¶ 11 (2008). Accordingly, the appellant failed to 

show that the agency violated his veterans’ preference rights when it filled the 

Public Health Advisor position through the MP-36 announcement, for which he 

did not apply.3

 

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

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, 

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 

 3 In his petition, the appellant argues that the administrative judge erred in dismissing 

his claim that he was entitled to “priority placement” in the selection process. PFR 

File, Tab 1 at 9. 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).
5

party seeking an evidentiary hearing for the administrative judge to rule in favor 

of that party should that party’s evidence be credited. Id. 

¶9 The appellant argues that a hearing would have provided him an opportunity 

to elicit testimony about the agency’s selection for its vacancy, to determine if it 

actually occurred, and whether it was lawful. PFR File, Tab 1 at 6-7. However, 

the agency presented documentary evidence of its selection from the eligible 

MP-36 candidates, and the appellant presented no evidence to the contrary. See

IAF, Tab 9 at 107. The appellant’s unfounded speculation that the agency’s 

documentation could, in theory, be contradicted at a hearing does not amount to a 

genuine factual dispute. 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:

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. 
6

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 

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