UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-14-0555-I-1

DATE: April 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

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

William A. Biglow, Esquire, and Matthew M. Vince, Washington , D.C., 

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; 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 The appellant, a 5-point preference-eligible veteran, timely filed this appeal 

in which he claimed that the agency violated his veterans’ preference rights when 

it determined that he was not qualified for a GS-13 Public Health Advisor 

position with the agency’s Substance Abuse and Mental Health Administration, 

vacancy announcement HHS-SAMHSA-DE-14-1135041. Initial Appeal File 

(IAF), Tab 1. He demonstrated exhaustion of his administrative remedies before 

the Department of Labor, which, in an August 15, 2014 letter, informed him that 

it had completed its investigation of his timely-filed complaint but that it had no 

authority to investigate or determine specific job requirements under VEOA. Id.

at 4, 8. 

¶3 Without holding the requested hearing, id. at 2, the administrative judge 

found jurisdiction over the appeal but denied the appellant’s request for 

corrective action because he found that the agency established by preponderant 

evidence that it did not improperly omit, overlook, or exclude any portion of the 

appellant’s experience or work history in assessing his qualifications for the 

vacancy at issue such that it did not violate his veterans’ preference rights in 
3

doing so, IAF, Tab 18, Initial Decision (ID). In his timely-filed petition for 

review, the appellant argues that the administrative judge was biased against him. 

Petition for Review (PFR) File, Tab 1 at 6-10. The appellant also challenges the 

administrative judge’s decision to forego a hearing and decide the appeal on the 

written record. Id. at 10-15. The agency has responded in opposition to the 

appellant’s petition for review. PFR File, Tab 3. 

¶4 In pertinent part, 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). 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). As the following discussion indicates, 

we agree that the record presents no genuine issue of material fact and find that 

the administrative judge appropriately denied the appellant’s request for 

corrective action under VEOA on the written record.

¶5 Under 5 C.F.R. § 302.302(d), when experience is a factor in determining 

eligibility, as it is in the instant matter, an agency shall credit a preference

eligible like the appellant as follows: 

(1) with time spent in the military service of the United States if the 

position for which he/she is applying is similar to the position which 

he/she held immediately before his/her entrance into the military 

service; and 

(2) with all valuable experience, including experience gained in 

religious, civic, welfare, service, and organizational activities, 

regardless of whether pay was received therefor. 

¶6 Nevertheless, “VEOA does not enable veterans to be considered for 

positions for which they are not qualified.” Lazaro v. Department of Veterans 

Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (citing Ramsey v. Office of 

Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000)). In the context of a VEOA 

claim, the Board may examine whether an agency properly assessed an 
4

applicant’s qualifications as part of its analysis of whether the agency afforded 

that individual, in accordance with relevant veterans’ preference statutes or 

regulations, the right to compete for a position. Lazaro, 666 F.3d at 1321. In 

doing so, the Board’s authority is limited to examining whether the hiring agency 

improperly omitted, overlooked, or excluded any of the appellant’s experience in 

assessing his or her qualifications for the position at issue, in order to ensure that 

the agency considered and credited any experience material to the position. 

Kirkendall v. Department of the Army, 573 F.3d 1318, 1324 (Fed. Cir. 2009). 

¶7 In that regard, the agency official who conducted a detailed qualifications 

analysis of the appellant’s application specified in a sworn statement that the 

appellant’s 31-page resume showed that he lacked experience in the areas of 

“criminal justice, substance abuse, oversight of grants and contracts, and 

experience with evidence-based practices for substance use disorders,” all of 

which were among the required experience for the position at issue. IAF, Tab 9 

at 11, 82. The appellant does not challenge this finding on review and we agree 

with the administrative judge that the record does not reflect that the agency 

violated the appellant’s veterans’ preference rights in considering his experience 

material to the position at issue and in determining that his lack of such 

experience indicated that he was not qualified for the position. 

¶8 Regarding the appellant’s claim that the administrative judge was biased 

against him, in making such a claim, a party must overcome the presumption of 

honesty and integrity that accompanies administrative adjudicators. Oliver v. 

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). Further, an 

administrative judge’s conduct during the course of a Board proceeding warrants 

a new adjudication only if the administrative judge’s comments or actions 

evidence “a deep-seated favoritism or antagonism that would make fair judgment 

impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. 

Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The 

appellant filed a motion in the appeal below to disqualify the administrative judge 
5

in which he explicitly explained why he believes that the administrative judge 

was biased against him. IAF, Tab 6. In his ruling on the appellant’s motion, the 

administrative judge provided a detailed explanation of why the appellant failed 

to meet the above-cited burden. IAF, Tab 12. The appellant repeats his 

arguments on review. PFR File, Tab 1 at 6-9. We agree with the administrative 

judge’s analysis and find that the appellant’s arguments on review do not show 

that the administrative judge either erred or abused his discretion in this matter. 

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 
6

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