UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v. 

ARMED FORCES RETIREMENT 

HOME,

Agency. 

DOCKET NUMBER

DE-3330-15-0149-I-1

DATE: March 8, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Robert Charles Rutherford, Jr., Washington Navy Yard, 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 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 administrative 

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, 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 following facts are undisputed unless otherwise noted. The appellant 

exhausted his administrative remedies with the Department of Labor and timely 

filed an appeal alleging that the Armed Forces Retirement Home (“AFRH” or “the 

agency”) violated his veterans’ preference rights when it did not select him for a 

Health System Administrator position under Vacancy Announcement 

14-AFRH-137P, which was open to United States Citizens. Initial Appeal File 

(IAF), Tab 1, Tab 7 at 5, 26. The agency adjudicated the appellant’s veterans’

preference and included him on the certificate of Best Qualified candidates 

referred to the selecting official, but none of the referred candidates were 

interviewed or selected because the agency determined that none of the applicants 

had any long-term care experience. IAF, Tab 7 at 7, 25, Tab 9 at 6, Tab 10 at 5. 

The agency re-advertised the position to attract new applicants. Id. 

¶3 On appeal, the appellant argued that the agency’s decision to repost the 

position without selecting a candidate was “an enormous RED FLAG, indicating 

unlawful action.” IAF, Tab 1 at 5. The appellant further argued, among other 

things, that the agency failed to credit his military experience. Id. The 

administrative judge advised the parties of the applicable law and burdens of 
3

proof and ordered the appellant to submit evidence and argument to determine 

whether there was a genuine dispute of material fact at issue on appeal. IAF,

Tab 8. After considering the parties’ submissions, the administrative judge 

denied the appellant’s request for corrective action under VEOA, without holding 

a hearing, and found that there was no genuine dispute of material fact regarding 

his allegation that the agency violated VEOA. IAF, Tab 13, Initial Decision (ID)

at 8; Tabs 9-12. 

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

offered no evidence to contradict the sworn declaration of the agency’s human 

resources specialists stating that the agency decided to re-advertise the position 

and cancel the vacancy announcement without making a selection because none 

of the applications had long-term care experience. ID at 7; IAF, Tabs 9-10. The 

administrative judge also found, based on the undisputed facts, that the appellant 

failed to generate a genuine dispute of material fact regarding the allegation that 

the agency failed to credit his military experience. ID at 6. The appellant filed a 

petition for review, and the agency responded in opposition to his petition. 

Petition for Review (PFR) File, Tabs 1, 3. 

¶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. 
4

Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). 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 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. 

¶7 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 is limited to assessing whether an agency 

considered all of an appellant’s “valuable experience” that is material to the 

position for which he has applied, and this assessment does not include a review 

of the weight the agency gave to a preference eligible’s prior experiences in 

determining that he was not qualified for a position of employment. Miller, 

121 M.S.P.R. 88, ¶ 9. That said, VEOA does not guarantee a preference eligible 

a position of employment. Scharein v. Department of the Army, 91 M.S.P.R. 329, 

¶¶ 9-10 (2002), aff’d, No. 02‐3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008). 

¶8 It is undisputed that the agency did not select any of the candidates who 

applied under Vacancy Announcement 14-AFRH-137P. ID at 2-3. Although the 

appellant argues that the agency unlawfully decided to cancel the announcement 

without making a selection and re-advertise the position, the Board has 

recognized that there is no statute or regulation requiring that an agency make a 
5

selection from the applicants for a vacancy announcement. To the contrary, the 

Board has observed that an agency may cancel or repost a vacancy announcement 

without making a selection. See Abell v. Department of the Navy, 343 F.3d 1378, 

1384 (Fed. Cir. 2003) (finding that “[a]n agency may cancel a vacancy 

announcement for any reason that is not contrary to law”); Ward v. Office of 

Personnel Management, 79 M.S.P.R. 530, 534 (1998) (an agency has discretion 

as to which sources it will use to fill its positions and may select or not select 

from the applicants who respond to a vacancy announcement), aff’d, 194 F.3d 

1333 (Fed. Cir. 1999) (Table). The agency presented undisputed evidence of a 

lawful reason for canceling the vacancy announcement; specifically that none of 

the candidates on the certificate of eligibles had long-term care experience and,

therefore, the agency decided to “modify the job analysis questions and 

re-advertise the position.” IAF, Tab 9 at 6, Tab 10 at 5. 

¶9 On review, the appellant also fails to identify any evidence in the record 

that supports his generic argument that the agency violated his rights under 

regulations related to veterans’ preference by failing to credit his qualifying 

experience in processing his application. 2

 PFR File, Tab 1 at 11; see Miller, 

121 M.S.P.R. 88, ¶ 12. Instead, the appellant raises various arguments on review

that are not dispositive and present no basis for disturbing the initial decision 

 2 As stated previously, the agency submitted affidavits from the human resources 

specialists swearing under the penalty of perjury that they adjudicated the 

appellant’s 5-point (TP) veterans’ preference, reviewed all of the documents in his 

application package, and placed him on the certificate of “Best Qualified” candidates 

referred to the hiring authority. IAF, Tabs 9-10. Regardless, we note that the Board 

denied the appellant’s request for corrective action in a prior VEOA appeal, despite 

finding that the agency failed to afford him veterans’ preference in the rating process, 

because the agency made no selection under the vacancy announcements, and therefore 

he would not have been selected. Jones v. Department of Health & Human Services, 

119 M.S.P.R. 355, ¶ 14, aff’d, 544 F. App’x 976 (Fed. Cir. 2012). Consequently, the 

Board found no basis to find that the appellant suffered any harm from the agency’s 

error failing to afford him veterans’ preference in the rating process for that 

position. Id. 
6

denying his request for corrective action under VEOA. 3 The agency’s decision to 

select none of the candidates who applied under Vacancy Announcement 

14-AFRH-137P did not deny the appellant his opportunity to compete for the 

position or otherwise violate his rights under a statute or regulation relating to 

veterans’ preference. We therefore 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 

U.S. Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address: 

U.S. 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). 

 3 For example, the appellant argues that the administrative judge improperly denied his 

right to a hearing and hearings should be mandatory based on the findings stated in the 

Board’s January 2015 study titled, “The Impact of Recruitment Strategy on Fair and 

Open Competition for Federal Jobs.” PFR File, Tab 1 at 5-10. He states that agencies 

found him “‘Best Qualified’ for at least 176 positions,” but he never received an offer 

of employment. Id. at 26. He discusses his past VEOA appeals involving agencies 

other than AFRH and claims that there is a pattern and practice of intentionally 

circumventing veterans’ rights. Id. at 11-15, 17. He discusses the Board’s obligations 

to veterans and provides a historical analysis of the mistreatment of veterans, which 

includes references to “The Odyssey” by Homer and to corruption within the Veterans 

Administration. Id. at 22-24. He also argues that the administrative judge failed to 

perform his judicial duties. Id. at 9. However, we find that the appellant failed to 

establish a basis for granting his petition for review. Id. at 9. 
7

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 U.S. 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 U.S. 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 an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. 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