UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-15-0006-I-1

DATE: April 13, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

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

Melinda V. McKinnon, 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 the appellant’s request for corrective action. Generally, we grant petitions 

such as this one only when: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpretation of statute 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 timely filed an appeal alleging that the agency violated his 

veterans’ preference rights, as provided under the Veterans Employment 

Opportunities Act of 1998 (VEOA), when it failed to select him for the GS-13 

grade level, Public Health Advisor position that he applied for under Vacancy 

Announcement Number HHS-CDC-D1-14-1173397. Initial Appeal File (IAF), 

Tab 1. The record reflects that the agency issued concurrent competitive and 

merit promotion vacancy announcements for the Public Health Advisor position. 

IAF, Tab 11 at 13-19. The appellant, a 5-point (TP) preference-eligible veteran, 

applied for the position under the competitive announcement and was afforded the 

appropriate veterans’ preference. IAF, Tab 8 at 5. The agency notified the 

appellant that he was determined to be ineligible for the position because he did 

not meet the specialized experience requirement set forth in the vacancy 

announcement. See IAF, Tab 1 at 7-8. Because the appellant was found not

qualified, he received no further consideration for the Public Health Advisor 

position. The agency subsequently selected an individual from the merit 

promotion certificate. IAF, Tab 11 at 10-12.
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¶3 After exhausting his administrative remedies with the Department of Labor, 

the appellant filed this appeal and requested a hearing. IAF, Tab 1 at 9. On 

appeal, the appellant argued that agency personnel failed to properly evaluate his 

application, that he qualified for the Public Health Advisor position, and that the 

selection process was unlawful. IAF, Tabs 1, 3-4, 13-14. In response to the 

administrative judge’s order to more thoroughly explain why the appellant lacked 

the specialized work experience required for the Public Health Advisor position, 

the agency submitted a declaration sworn under penalty of perjury from the 

Human Resources (HR) Specialist stating that the appellant did not meet the 

required 1 year of specialized experience at the GS-12 level “because he lacks 

direct experience with state, local, federal and/or international public health 

preparedness programs.” IAF, Tab 10, Tab 11 at 11. The HR Specialist also 

certified that the agency selected one applicant from the merit promotion 

certificate to fill the positon. Id. at 12. The administrative judge notified the 

parties that he found no genuine dispute of material fact requiring a hearing, 

advised the parties of the applicable law and burdens of proof, and issued a close 

of record order allowing the parties until December 15, 2014, to supplement the 

record. IAF, Tab 12. The appellant responded, and without holding a hearing, 

the administrative judge found no dispute of material fact and issued an initial 

decision denying the appellant’s request for corrective action under VEOA. IAF, 

Tab 15, Initial Decision (ID) at 1-2.

¶4 In reaching his decision, the administrative judge found that the agency 

considered the appellant’s lengthy resume and that it credited the appellant with 

all of his experience material to the Public Health Advisor position in finding that 

he was unqualified. ID at 6-7. The administrative judge found further that he had 

no authority to reevaluate the weight the agency accorded the appellant’s 

experiences when it determined that he failed to meet the requirement that he 

show 1 year of specialized experience at the next lower grade level or its 

equivalent. ID at 6-7. The administrative judge found further that, even if the 
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appellant were qualified for this Public Health Advisor position, the agency 

selected an applicant from the merit promotion certificate. ID at 7; IAF, Tab 11

at 11. Thus, the administrative judge denied the appellant’s request for corrective 

action, finding that the appellant did not show that the agency violated any of his 

statutory or regulatory VEOA-related rights in connection with the Public Health 

Advisor position at issue in this case. ID at 8.

¶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. 

§ 1201.56(c)(2). The Board has the authority to decide a VEOA appeal on the 

merits, without a hearing, where 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.

¶6 Here, the appellant filed a petition for review arguing, in pertinent part, that 

he was improperly denied a hearing and that the agency violated his VEOA 

rights. Petition for Review (PFR) File, Tab 1 at 6, Tab 3. The appellant also 

refers to prior appeals he filed against the agency and he argues that there is a 

pattern and practice of circumventing veterans’ rights. PFR File, Tabs 1, 3. The 

appellant asks the Board to reverse the initial decision and remand his appeal for 

a hearing. PFR File, Tab 1 at 13-15. The agency has responded in opposition to 
5

the petition, and the appellant has replied, reasserting his argument that he was 

improperly denied a hearing and arguing that he was qualified for the position 

and entitled to priority placement. PFR File, Tabs 1-3.

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

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

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

organizational activities, regardless of whether” such experience is unpaid. 

5 U.S.C. § 3311(2); see 5 C.F.R. § 302.302(d); see also Miller v. Federal Deposit 

Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014). Although a 

preference-eligible is entitled to have a broad range of experiences considered by 

the agency in reviewing his application for a position, how the agency adjudges 

and weighs those experiences is beyond the purview of the Board’s review in a 

VEOA appeal. Miller, 121 M.S.P.R. 88, ¶ 9.

¶8 Further, the matter at issue in a VEOA appeal is not whether a particular 

agency action is proper and should be sustained. Id. Pursuant to 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 

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

a given position of employment. See Kirkendall v. Department of the Army, 

573 F.3d 1318, 1324 (Fed. Cir. 2009) (“Section 3311(2) guarantees that any 

experience of a veteran that is material to the position for which the veteran is 

examined will be credited. At the very least, ‘credited’ means ‘considered.’”).

¶9 The administrative judge found that the sole issue in this case is whether the 

agency violated 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to credit 

the appellant with all “valuable experience” material to the Public Health Advisor 

position. ID at 6; IAF, Tab 10. In deciding this issue, the administrative judge 

found that the agency had the appellant’s lengthy resume before it; the agency’s 
6

HR Specialist certified that he “thoroughly reviewed and considered all the 

information submitted by the appellant” but he found that the appellant lacked the 

1 year of specialized experience or its equivalent because he lacked “direct 

experience with state, local, federal and/or international public health 

preparedness programs”; and the appellant did not respond to assert or show that 

he has such experience. See ID at 7; see also IAF, Tab 11 at 11. Thus, the 

administrative judge concluded that the agency properly credited the appellant 

with all of his experience material to the Public Health Advisor position when it 

determined that he was unqualified for the position and that there was no dispute 

of material fact. ID at 7. 

¶10 While the appellant argues that he was qualified for the position, we agree 

with the administrative judge’s finding that the agency’s recruitment process 

under these vacancy announcements did not violate the appellant’s rights under 

any statute or regulation related to veterans’ preference and that there is no 

dispute of material fact. ID at 5. The agency determined that the appellant was 

not qualified under Vacancy Announcement HHS-CDC-D1-14-1173397, because 

he did not meet the specialized experience requirement. IAF, Tab 11 at 11, Tab 7 

at 21-22. In the vacancy announcement, the agency stated that the person 

selected for the Public Health Advisor position would be required to meet the 

requirement of showing 1 year of specialized experience at the next lower grade 

level or its equivalent. IAF, Tab 7 at 72. The vacancy announcement explicitly 

stated that “[s]pecialized 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 

direct experience with state, local, federal and/or international public health 

preparedness programs.” Id. Although the appellant disputes the agency’s 

determination that he lacks the 1 year of specialized experience required for the 

Public Health Advisor position because he has never worked in a public health 

program for the federal government or for a state or local health department, 
7

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. See Miller, 121 M.S.P.R. 88, ¶ 12.

¶11 Additionally, the appellant has not shown that the agency violated his 

veterans’ preference rights in this case when it made its selection from the merit 

promotion certificate issued pursuant to the merit promotion announcement, for 

which he did not apply. An agency has the discretion to fill a vacant position by 

any authorized method, and the Board has held that there is nothing preventing an 

agency from soliciting applications from the public and from merit promotion 

applicants simultaneously and filling the vacant position from the merit 

promotion certificate. See Joseph v. Federal Trade Commission, 505 F.3d 1380, 

1384 (Fed. Cir. 2007) (finding that the agency did not violate VEOA by 

conducting “simultaneous parallel procedures under the competitive examination 

and merit promotion process to fill the same position” and selecting someone 

other than the veteran under the merit promotion process); see also Dean v. 

Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008). 

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

which pertain to the agency’s actions in the appellant’s prior VEOA appeals, and 

we find no basis for disturbing the initial decision. 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 appellant’s petition for review. See 5 C.F.R. 

§ 1201.225(d).

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:
8

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