UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-14-0552-I-1

DATE: April 28, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Christina Patton Black, 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 the appellant’s 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

material fact; 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 In this appeal, the appellant alleged that the agency violated his veterans’ 

preference rights when it failed to select him for vacancy announcement number 

HHS-SAMHSA-DE-14-1138721, Public Health Advisor, GS 11/13, which the 

agency issued under its delegated authority as open to all United States citizens. 

Initial Appeal File (IAF), Tab 1; see IAF, Tab 8 at 56-63. The agency 

concurrently issued another vacancy announcement for the same position under 

merit promotion procedures. IAF, Tab 8 at 56. The appellant did not apply for 

the merit promotion vacancy announcement and the record reflects that the 

agency ultimately made no selection under either vacancy announcement. IAF, 

Tab 18 at 11, Tab 21, Initial Decision (ID) at 2. Because the unrebutted record 

indicated that the agency made no selection at all for the position, the

administrative judge denied the appellant’s request for corrective action under 

VEOA. 2 ID at 5. 

 2 The administrative judge found that the appellant had filed a timely complaint with 

the Department of Labor in order to exhaust his administrative remedy and had 

established jurisdiction over his appeal. ID at 3; see IAF, Tab 1 at 8. 
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¶3 In his timely-filed petition for review, the appellant makes wide-ranging 

arguments criticizing the Board’s decision to forego a hearing on some of his 

previous VEOA nonselection claims. Petition for Review (PFR) File, Tab 1 at 

4-13. He argues that the administrative judge was biased against him. Id. at 

13-17. The appellant also challenges the administrative judge’s decision not to 

grant his request for a hearing in this matter and to instead decide the appeal on 

the written record. Id. at 17-24. The agency responds in opposition. 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). There is no harm, and therefore 

no VEOA violation, when an agency, like here, decides not to fill a particular 

vacancy. Jones v. Department of Health & Human Services, 119 M.S.P.R. 355, 

¶ 14 (2013), aff’d, 544 F. App’x 976 (Fed. Cir. 2014); cf., Scharein v. Department 

of the Army, 91 M.S.P.R. 329, ¶ 10 (2002) (the agency is not required to fill a 

particular vacancy and does not violate an applicant’s veterans’ preference rights 

when it chooses not to make a selection). Moreover, 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). Because, as noted above, the 

unrebutted record reflects that the agency did not fill the position at issue, ID at 

4; see IAF Tab 18 at 11, we agree with the administrative judge that there is no 

genuine issue of material fact and find that the administrative judge properly 

denied the appellant’s request for corrective action on the written record. 

¶5 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 
4

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)). 

¶6 The appellant filed a motion to disqualify the administrative judge, and also 

sought to certify an interlocutory appeal on the issue, explicitly explaining in 

both submissions why he feels that the administrative judge was biased against 

him. IAF, Tabs 3, 6. The appellant concedes on review that the administrative 

judge denied his motion to disqualify.

3 PFR File, Tab 1 at 17. As for the 

appellant’s argument that the administrative judge was biased against him, we 

find that the appellant’s arguments do not show that the administrative judge’s 

actions in this matter evidence the sort of deep-seated favoritism or antagonism 

that would require recusal, and are insufficient to overcome the presumption of 

honesty and integrity that accompanies administrative adjudicators. 

¶7 The appellant alleges on review that the administrative judge failed to 

address his request for the certification of an interlocutory appeal on the issue of 

recusal. PFR File, Tab 1 at 17. Review of the record reveals that the appellant 

used 4 different appeal numbers in the caption of his certification motion, 

including the number for this appeal, see IAF, Tab 3 at 1, and that the 

administrative judge addressed the appellant’s motion in one of the other appeals

listed in the caption, Jones v. Department of Health & Human Services, MSPB 

 3 The administrative judge’s decision on the appellant’s motion to disqualify is part of 

the file in another of the appellant’s appeals, Jones v. Department of Health & Human 

Services, MSPB Docket No. DE-3330-14-0551-I-1, IAF, Tab 12, which the 

administrative judge joined with the instant matter, IAF, Tab 10. However, because the 

appellant failed to establish in that matter that he had exhausted his remedies before the 

Department of Labor, the administrative judge subsequently dissolved the joinder and 

dismissed that appeal for lack of jurisdiction in a separate initial decision. Jones v. 

Department of Health & Human Services, MSPB Docket No. DE-3330-14-0551-I-1, 

Initial Decision (Oct. 21, 2014). 
5

Docket No. DE-3330-14-0236-I-1 (0236), IAF, Tab 26. He denied the 

certification motion because it merely reargued the appellant’s motion to 

disqualify the administrative judge and was “devoid of any evidence or argument 

addressing the requirements of 5 C.F.R. § 1201.92 for certification of an 

interlocutory appeal.” 0236, IAF, Tab 26 at 2. Under the Board’s regulations, 

interlocutory appeals are intended for situations where the ruling “involves an 

important question of law or policy about which there is substantial ground for 

difference of opinion.” 5 C.F.R. § 1201.92(a). No such issue is present on this 

record. Moreover, the appellant also failed to establish under 5 C.F.R. 

§ 1201.92(b) that an immediate ruling would materially advance the completion 

of the proceeding or that the denial of such a ruling will cause any undue harm

because we have considered his allegations in connection with his petition for 

review. Cf. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 23 

(2010) (the denial of the appellant’s recusal motion does not involve an important 

question of law or policy, as the Board has already decided the standard it will 

apply in determining whether an administrative judge should be disqualified on 

grounds other than bias). 

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 
6

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 

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