UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-14-0635-I-1

DATE: April 9, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL∗

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

Corey Thompson, 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. 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 or 

 ∗ A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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, 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 Lead Public Health Advisor, GS-14 position 

he applied for under Vacancy Announcement Number HHS-CDC-D4-14-

1154527. Initial Appeal File (IAF), Tab 1. Although the agency initially advised 

the appellant that he was tentatively determined to be eligible for the position 

based upon his self-rating, the agency notified him on September 15, 2014, 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 14 at 15-16, 24. Because the appellant was found not qualified, he 

received no further consideration for the Lead Public Health Advisor position.

¶3 The administrative judge issued a close of the record order finding no 

genuine dispute of material fact in the appeal, and he provided the parties with 

the opportunity to submit additional evidence and argument before the record 

closed on December 1, 2014. IAF, Tab 15. The appellant responded by arguing 

that the agency has a pattern and practice of circumventing rights, and he 
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provided details from his prior VEOA appeals against the agency concerning 

vacancy announcements not at issue in this appeal. IAF, Tabs 16-19. The 

appellant also argued that he is entitled to priority placement ahead of disabled 

veterans. IAF, Tab 16 at 5.

¶4 Without holding the hearing requested by the appellant, the administrative 

judge found that there was no dispute of material fact and issued an initial 

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

Tab 20, Initial Decision (ID) at 2. In reaching his decision, the administrative 

judge found that the agency considered the appellant’s lengthy resume and that it 

credited him for all of his experience material to the Lead Public Health Advisor 

position in finding that he was unqualified for the position. ID at 6. The 

administrative judge found further that he had no authority to reevaluate the 

weight the agency accorded the appellant’s experience in determining that, 

because the appellant has never worked in a public health program for the federal 

government or for a state or local health department, 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 6-8. Thus, the administrative judge denied the 

appellant’s request for corrective action. ID at 8.

¶5 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). 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). 
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¶6 Here, the appellant has filed a petition for review asking the Board to 

remand the appeal for a hearing so that the agency can explain its hiring decision 

and the administrative judge can examine the merits of the agency’s actions. In 

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

practice of circumventing veterans’ legal rights and that the agency should be 

required to explain why he was found not qualified. Petition for Review (PFR) 

File, Tab 1.

¶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. Miller, 121 M.S.P.R 88, ¶ 12; 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.’”). 
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¶9 In this case, 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.

ID at 5. The agency determined that the appellant was not qualified under 

Vacancy Announcement HHS-CDC-D4-14-1154527 because he did not meet the 

specialized experience requirement. IAF, Tab 14 at 15-16. In the vacancy 

announcement, the agency stated that the person selected for the Lead 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 by 

establishing, among other things, experience:

Direct[ing] and oversee[ing] multi-functional program activities 

involving a broad and complex range of public health programs that 

are operating domestically or abroad.

Provid[ing] training to diverse stakeholder groups and public health 

partners on public health issues.

See IAF, Tab 14 at 75. 

¶10 Here, the agency tentatively found the appellant qualified based on the 

appellant’s own self-assessment of his qualifications in his application, but once 

it had the appellant’s resume for its full consideration the agency determined that 

he did not meet the specialized experience requirement. See IAF, Tab 14 at 

42-72. Although the appellant disputes the agency’s determination that he lacks 

the 1 year of specialized experience required for the Lead 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, 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. IAF, 

Tab 6 at 170; see Miller, 121 M.S.P.R. 88, ¶ 12.

¶11 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 
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the administrative judge’s decision in this VEOA appeal, provide no basis for 

disturbing the initial decision. PFR File, Tab 1. 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 

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.
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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