UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBERS

DE-3330-14-0429-I-1

DE-3330-14-0428-I-1

DE-3330-14-0453-I-1

DE-3330-14-0525-I-1

DATE: April 15, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Melinda V. McKinnon, Esquire, and Robert E. Nerthling, II, 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 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Between April and May of 2014, the agency sought applicants for four 

distinct Public Health Advisor positions within the Centers for Disease Control 

and Prevention (CDC) under delegated examining (DE) announcements HHSCDC-D3-14-1094636 (DE-36), HHS-CDC-D4-14-1108801 (DE-01), HHS-CDCD1-14-1092777 (DE-77), and HHS-CDC-D3-14-1109123 (DE-23). See MSPB 

Docket No. DE-3330-14-0429-I-1, Initial Appeal File (0429 IAF), Tab 13 

at 99-103 (DE-36 job posting), 173-78 (DE-01 job posting), 246-51 (DE-77 job 

posting), 318-23 (DE-23 job posting). Concurrently, the agency sought 

applicants through separate merit promotion (MP) announcements for those same 

Public Health Advisor positions. See id. at 99, 173, 246, 318 (DE announcements 

noting the concurrent MP announcements and warning that applicants must apply 

to each separately to be considered for both). The appellant submitted an 

application, along with documentation of his veterans’ preference, for each of the 

four DE announcements. Id. at 67-97 (DE-36 submission), 140-71 (DE-01 

submission), 213-44 (DE-77 submission), 285-316 (DE-23 submission). 
3

However, it is undisputed that the appellant did not apply for any of the 

concurrent MP announcements.

¶3 The agency concluded that the appellant lacked the requisite specialized 

experience for any of the four Public Health Advisor positions. 2

 Id. at 29, 37 

(DE-36 determination), 114, 123 (DE-01 determination), 188-89, 195 (DE-77 

determination), 261-62 (DE-23 determination). It then selected candidates for at 

least three of the four MP announcements, without selecting any candidates from 

the DE announcements. See id. at 29, 116-17, 189, 263.

¶4 After being denied relief from the Department of Labor, the appellant filed 

separate Board appeals alleging that the agency acted improperly when it 

processed his applications and found him not qualified for each of the Public 

Health Advisor vacancies. MSPB Docket No. DE-3330-14-0428-I-1, Initial 

Appeal File, Tab 1 (appeal of DE-36); 0429 IAF, Tab 1 (appeal of DE-01); MSPB 

Docket No. DE-3330-14-0453-I-1, Initial Appeal File, Tab 1 (appeal of DE-77);

MSPB Docket No. DE-3330-14-0525-I-1, Initial Appeal File (0525 IAF), Tab 1 

(appeal of DE-23). The administrative judge joined them for adjudication. See

0429 IAF, Tab 8 at 1; 0525 IAF, Tab 3 at 1.

¶5 The administrative judge found that the Board has jurisdiction over the 

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

corrective action based on the written record. 0429 IAF, Tab 21, Initial Decision 

(ID) at 2. 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.

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

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

 2 For the DE-77 and DE-23 announcements, the agency’s initial form notices contained 

conflicting reports regarding the appellant’s eligibility for the positions. See id. at 195, 

197 (DE-77 notices), 265, 267 (DE-23 notices). However, the agency submitted sworn 

statements confirming that the appellant was deemed not qualified for either. Id. 

at 188-89 (S.S. declaration regarding DE-77), 261-62 (R.J. declaration regarding 

DE-23).
4

determined that he was not qualified for the Public Health Advisor positions. 

PFR File, Tab 1 at 8-13. 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 7-11. We find no merit to either argument. 3

¶7 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.

¶8 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 

 3 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 15-17. None of these assertions warrant further review in this, his 

appeal of the agency’s determination that he was not qualified for these specific Public 

Health Advisor vacancies.

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 11-12. 

However, he failed to identify, and we are aware of no 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

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)). 

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

with all of his valuable experience material to each of the Public Health Advisor 

positions at issue in determining that he was not qualified. ID at 7-10. We agree.

¶10 The DE-36 posting corresponded to a GS-13 position serving as the 

officer-in-charge at a CDC quarantine station. 0429 IAF, Tab 13 at 99-111 

(DE-36 posting and position description). After considering all the experience 

listed in the appellant’s application, the agency concluded that he was not 

qualified because he lacked experience involving preparedness and emergency 

response detection and prevention of infectious diseases. Id. at 29 (sworn 

declaration of J.W.). 

¶11 The DE-01 posting corresponded to a GS-15 position serving as the 

principal leader of a unit overseeing policy and communications; multilateral 

partnerships; public-private partnerships; and external relations with Congress, 

other agencies, and key partners. Id. at 173-85 (DE-01 posting and position 

description). After considering all the experience listed in the appellant’s 

application, the agency concluded that he was not qualified because he lacked 

experience directly related to the position. Id. at 114 (sworn declaration of P.H.).
6

¶12 The DE-77 posting corresponded to a GS-15 position serving as the official 

CDC point of contact and authority for American Indian/Alaskan Native (AI/AN) 

communities. Id. at 246-59 (DE-77 posting and position description). After 

considering all the experience listed in the appellant’s application, the agency 

concluded that he was not qualified because he lacked experience providing 

advice in the development and administration of AI/AN communities. Id. 

at 188-89 (sworn declaration of S.S.).

¶13 The DE-23 posting corresponded to a GS-14 position serving as a team 

lead, overseeing staff to develop, implement, monitor, and provide technical 

assistance for CDC immunization programs. Id. at 318-32 (DE-23 posting and 

position description). After considering all the experience listed in the 

appellant’s application, the agency concluded that he was not qualified because 

he lacked experience in team management, planning, developing, organization, 

implementation, administration, and evaluation of public health programs. Id. 

at 262 (sworn declaration of R.J.).

¶14 While the agency submitted sworn statements indicating that it considered 

all of his experience, the appellant presented no evidence to the contrary. The 

appellant has not identified any valuable experience or work history from his 

applications that the agency improperly omitted, overlooked, or excluded in 

assessing his qualifications. 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 
7

him not qualified for any of the Public Health Advisor positions. See ID at 7-10. 

Accordingly, the appellant failed to meet his burden of proving that the agency 

violated his veterans’ preference rights.

¶15 Although the appellant requested a hearing in this matter, 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. 

¶16 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 agency officials who submitted sworn declarations in 

this appeal, confirming that they considered all his experience in finding that he 

was not qualified for the vacancies. PFR File, Tab 1 at 8-10. The appellant 

suggests that these officials, in theory, could contradict their own sworn 

declarations if they 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 those 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:
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
9

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