UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-14-0555-I-1
v.
DEPARTMENT OF HEALTH AND DATE: April 3, 2015
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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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
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.