N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JOHN PAUL JONES, III

, Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent

______________________

2015

- 3038

______________________

Petition for review of the Merit Systems Protection
Board in No s . DE

- 3330

- 12

- 0137 -I- 2, DE

- 3330

- 12

- 0338 -I- 2.

______________________

Decided: July 10, 2015

______________________

J OHN P AUL J ONES

, III

, Albuquerque, NM, pro se.

M EEN G EU O H , Commercial Litigation B ranch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent. Also represented by B ENJAMIN C.
M IZER

, R OBERT E. K IRSCHMAN

, J R

., K IRK T. M ANHARDT

.

______________________

Before P ROST

, Chief Judge, C LEVENGER and M OORE

, Circuit Judges.JONES v. HHS 2

P ER C URIAM

. John Paul Jones III appeals the final decision of the Merit Systems Protection Board (“Board”), which denied Mr. Jones’s p etition for review and affirmed the admini strative judge’s initial decision denying Mr. Jones’s request for corrective action under the Veterans Employment Opportunities Act of 1998 (“VEOA”). For the reasons discussed below, we affirm

.
B ACKGROUND

Mr. Jone s is a preference eligible veteran. He served in the military as a medical corpsman during the Vietnam
War , and also has many years of private sector experience
in health

- related fields.

In 2011, the Department of Health and Human Se rvices (“HHS”) issued two concurrent competitive and merit pro motion vacancy announcements, both for ove rseas positions with the Center for Disease Control and Prevention (“CDC”). The first vacancy was for a Ma nagement and Operations Public Health Advisor (“PHA” ) position, for which six job requests were issued . Hired candidates were expected to “[m]anage, coordinate, and evaluate all aspects of complex public health programs . . . [and m]anage grant/cooperative agreements and comp arable funding sources for contracts.” Res p’t’s App. 33. The second vacancy was for a Technical PHA position , for which nine job requests were issued . Hired candidates were expected to be familiar with “grant/cooperative
agreements or other contracts” and to “[d]evelop, impl ement, and manage pub lic health programs many of which may be significant in complexity.” Id. at 27

– 28 . Both
vacancies required that “ qualify[ing] applicants mu st possess at least one year of specialized experience (at the next lowest grade) that has equipped the applicant w ith the particular knowledge, skills, and abilities to succes sfully perform the duties of” the position. Id. at 28 , 34

. The Management and Operations PHA vacancy furtherJONES v. HHS 3

specified that “specialized experience” was “experience such as serving as a public health advisor or a principle representative, providing financial accountability, pe rforming internal controls, and/or planning strategic initiatives and policies.” Id. at 34.

Mr. Jones applied for all fifteen open jobs

, submitting his resume and other ap plication materials, and comple ting the self

- assessment s with the highest attainable scores in every relevant category. Although Mr. Jones
indicated an interest in HIV/AIDS

- related work for the Management and Operations PHA vacancy , he did not do

so for t he Technical PHA vacancy . Therefore, he was not considered for two of the Technical PHA positions for which only applicants who had listed HIV/AIDS as a job preference were considered. However, Mr. Jones did
remain in consideration for the other thirteen PHA pos itions

. But upon review by three Human Resources (“HR”) Specialists, Mr. Jones was rated as not qualif ied for any of the positions based on lack of the required one year of specialized experience.

After exhausting his administrative remedies with the Department of Labor, Mr. Jones filed two VEOA appeals with the Board challenging his non

- selection for the PHA positions. He argued, among other things, that his prior work experience had not been properly valued
and that the agency had improperly failed to afford him priority consideration in the selection process

. The administrative judge consolidated the appeals, and, after full briefing and a hearing, issued an initial decision affirming the HHS’s determination that Mr. Jones was not qualified fo r the positions. In his decision, the administrative judge explained that Mr. Jones’s military experience as a medical corpsman treating soldiers in combat in Vietnam did not involve public health programs or grants/cooperative agreements , as required for the vacant positions

. And with respect to Mr.JONES v. HHS 4

Jones’s private sector experience, the administrative judge agreed with the testimony of the three HR Specia lists that Mr. Jones did not show the type of experience required by the positions. In particular

, the administr ative judge explained that, although Mr. Jones’s resume showed extensive administrative experience, it did not
show the requisite work with public health pro grams, as a public health advisor, or experience planning strategic
initiatives and/or analyzing public health programs. The administrative judge also found that, because the agency acted within its discretion in finding Mr. Jones not qual ified, any failure to afford him priority consideration was
harmless error.

Mr. Jones petitioned for review of the initial decision. After additional briefing, the Board agreed with the administrative judge, denied the petition for review, and
affirmed the initial decision. Mr. Jones then appealed to this court.

D ISCUSSION

Our review of the Board’s dec ision is limited by sta tute . We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without proc edures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c).

Mr. Jones’s primary contention is that the agency
fail ed to properly value his experience when finding him unqualified for the PHA positions. When experience is a factor in determining eligibility, the agency is required to credit a preference eligible veteran with his or her mil itary service that was in a position similar to the one being sought, as well as with all oth er “ valuable experience. ”
See 5 C.F.R. § 302.302(d).JONES v. HHS 5

We conclude that t he Board’s decision is supported by
substantial evidence. As an initial matter, it was reaso nable for the agency to exclude Mr. Jones from consider ation for the Technical PHA positi ons that required an expressed interest in HIV/AIDS work based on his failure to indicate such preference

. And w ith respect to the remaining positions, the Board properly upheld the a dministrative judge’s findings on the agency’s evaluation of
Mr. Jones’s prior experience. As the Board explained, the
administrative judge considered Mr. Jones’s application materials as well as the testimony of three HR Specia lists. After evaluating that evidence, the administrative judge concluded that Mr. Jones’s experie nce, while exte nsive, did not involve the requisite work in public health

programs, as a public health advisor, or experience pla nning strategic initiatives and/or analyzing public health programs. Because the Board’s findings are supported by
substantial evidence, and because we are not free at this
stage to reweigh the credibility determinations made below, we must uphold the Board’s determination regar ding the agency’s evaluation of Mr. Jones’s qualifying experience. See Kahn v. Dep ’ t of Justice , 618 F.3d 1306, 1313 (Fed. Cir. 2010) (“[A]n evaluation of witness credibi lity is within the discretion of the Board and . . . such evaluations are virtually unreviewable upon appeal.”) (citations omitted) (internal quotation marks omitted).

We also agree with the remainder of the Board’s co nclusions challenged by Mr. Jones. With respect to priority consideration, we agree that any failure of the agency to afford Mr. Jones priority consideration is harmless, as the agency ultimately concluded that Mr. Jon es was not qualified for the relevant PHA positions. With regards to Mr. Jones’s complaint of age discrimination, the record demonstrates that he was passed over for the PHA pos itions because he was deemed unqualified, not because of his age. Finally, wh ile Mr. Jones argues about the low percentage of veterans in the HHS and the fact that heJONES v. HHS 6

has applied for hundreds of positions without once being hired, our review in this case is restricted to whether the Board correctly upheld the administrative judge’s decision
in this case.

We have carefu lly considered the remainder of Mr. Jones’s arguments and have determined that they lack
merit. For the foregoing reasons, we affirm the Board’s
decision and deny Mr. Jones’s request for remedies

.
AFFIRMED

C OSTS

Each party shall bear their own costs.