NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL JONES, III,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2015-3123
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-3330-14-0364-I-1.
--------------------------------------------------------------------------
JOHN PAUL JONES, III,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2015-3129
______________________
2 JONES v. DVA
Petitions for review of the Merit Systems Protection
Board in No. DE-3330-14-0294-I-1, DE-3330-14-0295-I-1,
DE-3330-14-0302-I-1.
______________________
Decided: October 13, 2015
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondents. Also represented by BENJAMIN
C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-
MILLER.
______________________
Before LOURIE, MOORE, and WALLACH, Circuit Judges.
PER CURIAM.
In these consolidated appeals, John Paul Jones, III
(“Jones”) appeals from two final orders of the Merit Sys-
tems Protection Board (the “Board”), which denied his
petitions for review and affirmed the Administrative
Judge’s (“AJ’s”) decisions to deny his requests for correc-
tive action under the Veterans Employment Opportuni-
ties Act of 1998 (“VEOA”). Jones v. Dep’t of Veterans
Affairs, No. DE-333-14-0364-I-1 (M.S.P.B. Apr. 13, 2015)
(“Jones I Final Order”); (M.S.P.B. Dec. 22, 2014) (“Jones I
Initial Decision”); Jones v. Dep’t of Health & Human
Servs., Nos. DE-3330-14-0294-I-1, DE-3330-14-0295-I-1,
DE-3330-14-0302-I-I (M.S.P.B. Apr. 2, 2015) (“Jones II
Final Order”); (M.S.P.B. Nov. 24, 2014) (“Jones II Initial
Decision”). We consider both appeals in this one opinion,
but evaluate them separately. Because the Board did not
err in denying both of Jones’s petitions for review, we
affirm.
JONES v. DVA 3
BACKGROUND
Jones served in the Army as a medical corpsman dur-
ing the Vietnam War. As a result of his service, Jones is
eligible for a five-point preference when seeking Federal
employment. Jones has previously unsuccessfully ap-
pealed to this court from four different Board decisions
since 2012 as part of his efforts to seek Federal employ-
ment. See Jones v. Dep’t of Health & Human Servs., No.
2015-3038, 2015 WL 4153929 (Fed. Cir. 2015); Jones v.
Dep’t of Health & Human Servs., 544 F. App’x 976 (Fed.
Cir. 2013); Jones v. Dep’t of Health & Human Servs., 542
F. App’x 912 (Fed. Cir. 2013); Jones v. Merit Sys. Prot.
Bd., 497 F. App’x 1 (Fed. Cir. 2012).
I
In 2014, Jones applied for Vacancy Announcement
No. PG-14-DBA-1094170-ORD, as an Administrative
Officer at the GS-14 level at the Department of Veterans
Affairs (“VA”). As part of his application, Jones submitted
a 30-page resume. Jones described his previous work
experience, most of which he gained at King Faisal Spe-
cialized Hospital in Riyadh, Saudi Arabia. In his resume,
Jones explained that “Saudi Arabia was one of the poorer
countries on earth,” “[g]oats still grazed the streets,” and
“[t]here was no organized city garbage disposal.” Jones I,
Appeal No. 2015-3123, Resp’t’s App. 50. According to
Jones, those statements demonstrated his ability to work
constructively in different environments.
Because the VA required applicants to have special-
ized experience, the VA required that applicants complete
a self-assessment questionnaire to determine their suita-
bility for the position. Jones completed the questionnaire,
and for each selective experience question that the VA
posed, Jones stated that he was “considered an expert in
performing” the stated task. Id. at 27–30. Based on
Jones’s self-assessment, he was initially deemed “Best
4 JONES v. DVA
Qualified” for the position. The VA then performed an
audit of Jones’s application materials and found that
Jones’s claimed “specialized experience” was not support-
ed by his resume. Because Jones did not demonstrate the
“specialized experience” necessary for the position, the VA
ultimately deemed Jones ineligible for the position.
In response to his denial from the VA, Jones filed a
complaint with the Department of Labor. Jones alleged
that the VA violated the VEOA when it failed to find his
experience sufficient to meet the selection criteria re-
quired by the announcement. The Department of Labor
denied Jones relief, and Jones appealed to the Board.
The Board’s AJ denied Jones’s request for corrective
action. Jones I Initial Decision at 2. The AJ found that
there was no dispute of material fact, and accordingly
declined to hold a hearing. Id. at 1. According to the AJ,
Jones did not proffer “any evidence that [the VA] did
anything other than what the evidence shows it did—
which was to consider, but find inadequate, [Jones’s]
resume.” Id. at 6. The AJ further found that Jones’s
assertion that the VA used “overly selective criteria” was
not a violation of veteran’s preference and was beyond the
AJ’s review. Id. at 6–7. The AJ thus concluded that the
VA did not violate any of Jones’s VEOA rights. Id. at 7.
Jones timely petitioned the full Board for review of the
initial decision.
The full Board denied the petition for review and af-
firmed the AJ’s initial decision. Jones I Final Order at 2.
The Board found that the VEOA did not “empower the
Board to reevaluate the merits of an agency’s ultimate
determination that a preference-eligible veteran is not
qualified for a position with the agency.” Id. at 6. The
Board found that Jones did not identify any relevant
experience in his resume that the VA failed to consider in
reviewing his application and in making the determina-
JONES v. DVA 5
tion that Jones was ineligible. Id. at 7. According to the
Board, “[a]n agency is not required to hire a preference-
eligible veteran, if, as was the case here, the agency does
not believe that the candidate is qualified or possesses the
necessary experience.” Id.
The Board also addressed Jones’s argument that the
AJ failed to substantively address the VA counsel’s use of
the phrases “goat herder” and “garbage collector” in a
pleading in reference to Jones’s work experience. Id. The
Board found that the counsel’s conduct, including the use
of the language Jones objected to, did “not constitute
preponderant evidence that the agency violated [Jones’s]
statutory or regulatory veterans’ preference rights in the
selection process.” Id. at 8. The Board thus denied
Jones’s petition for review. Id.
Jones appealed to this court from the Board’s final de-
cision. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II
In 2014, Jones also applied for three different posi-
tions at the Centers for Disease Control, an agency of
Health and Human Services (“HHS”): Vacancy An-
nouncement Nos. HHS-CDC-D3-14-1053427, HHS-CDC-
D3-14-1049139, and HHS-CDC-D4-14-1058639. Each of
the three competitive selection vacancy announcements
indicated that the HHS had concurrently issued a vacancy
announcement for the same position under merit promo-
tion procedures. The competitive selection announce-
ments advised the applicants to apply separately for each
announcement to be considered under both procedures.
However, Jones did not apply to the vacancy announce-
ments under the merit promotion procedures, but did so
only under the competitive selection procedure. In any
event, for each position, HHS determined that Jones was
not eligible for employment pursuant to the vacancy
6 JONES v. DVA
announcement. HHS made no employment selections
pursuant to the competitive selection announcements,
and, instead, made all of its employment selections pur-
suant to the merit promotion vacancy announcements.
Following HHS’s non-selection of Jones for the vacan-
cies, Jones filed three complaints with the Department of
Labor. The Department of Labor denied him relief, and
he appealed to the Board.
The AJ consolidated Jones’s appeals and denied his
requests for corrective action. Jones II Initial Decision at
2. As in Jones I, the AJ found that there was no dispute
of material fact, and accordingly declined to hold a hear-
ing. Id. The AJ first found that HHS’s unrebutted evi-
dence established that HHS never made selections from
the three competitive selection vacancy announcements,
“instead making all selections from the applicable merit
promotions announcements.” Id. at 5. The AJ concluded
that HHS did not violate the VEOA by advertising a
vacant position under both competitive selection and
merit promotion announcements, and then making its
selection exclusively from the merit promotion an-
nouncement. Id. at 5–6. Even if HHS had filled the
positions from competitive selection announcements, the
AJ found that “preponderant evidence establishes that
the agency did not improperly omit, overlook, or exclude a
portion of [Jones’s] experiences or work history in as-
sessing his qualifications for the vacancy and finding him
not qualified.” Id. at 8–9. Jones petitioned the full Board
for review of the initial decision.
The full Board denied the petition for review and af-
firmed the AJ’s initial decision. Jones II Final Order at 2.
The Board agreed with the AJ that Jones failed to show
that HHS violated his veterans’ preference rights “when it
made its selections from the merit promotions certificates
issued pursuant to the merit promotion announcements,
JONES v. DVA 7
for which he did not apply.” Id. at 4. The Board also
agreed that there was no genuine issue of material fact,
and as a result, the AJ did not err in proceeding without a
hearing. Id. Responding to Jones’s claim that the AJ was
biased against him, the Board found that Jones failed to
meet his burden of showing that the AJ’s actions evi-
denced “a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Id. at 5 (citation
omitted).
Jones appealed to this court from the Board’s final de-
cision. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reasona-
ble mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
To establish a claim under the VEOA, a preference el-
igible veteran must show that an agency has violated his
rights under any statute or regulation relating to veter-
ans’ preference with respect to federal employment. See 5
U.S.C. § 3330a(a)(1)(A).
I
We first consider whether the Board erred in denying
Jones’s request for corrective action under the VEOA for
8 JONES v. DVA
the VA vacancy announcement. Jones argues that the VA
violated his VEOA rights, and he specifically asserts that
the VA counsel’s use of the “slurs,” “goat herder” and
“garbage collector,” was overlooked by the Board. Jones
also contends that he should have been entitled to a
hearing because there were disputed material facts.
The government responds that the Board did not err
in denying Jones’s request for corrective action. Accord-
ing to the government, the VA properly reviewed Jones’s
relevant experience. The government contends that VA
counsel’s choice of language during the Board proceedings
does not diminish the fact that the VA gave due consider-
ation to the experience listed in Jones’s application mate-
rials and deemed him ineligible prior to the Board
proceedings. Finally, the government argues that the
Board correctly concluded that the VEOA appeal could be
decided without a hearing because there were no genuine
disputes of material fact.
We agree with the government that the Board did not
err in denying Jones’s requests for corrective action under
the VEOA. Jones does not dispute that the VA reviewed
and considered all of his application materials. As the
Board found, the VA deemed Jones ineligible for the
vacant position because he was unable to demonstrate the
“specialized experience” necessary for the position. As we
have stated, “the VEOA does not enable veterans to be
considered for positions for which they are not qualified.”
Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316, 1319
(Fed. Cir. 2012). And to the extent Jones argues that the
test the VA used in deeming him ineligible was too strict,
the VEOA does not empower the Board to supplant the
VA’s criteria with its own. See id. Although the VA
counsel’s choice of language in its pleading may not have
been satisfying to Jones, the language does not indicate
that the VA misinterpreted Jones’s relevant work experi-
ence when reviewing his employment application.
JONES v. DVA 9
With respect to Jones’s argument about the lack of a
hearing, “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. Dep’t of Veterans
Affairs, 108 M.S.P.R. 349, 353 (2008) (citations omitted);
see 5 C.F.R. § 1208.23(b) (“[a] hearing may be provided to
the appellant” (emphasis added)). Jones has failed to
point to any genuine dispute of material fact, and thus the
Board did not err in declining to conduct a hearing. We
have considered Jones’s remaining arguments, but find
them unpersuasive.
II
We next consider whether the Board erred in denying
Jones’s request for corrective action under the VEOA for
the three competitive selection vacancy announcements at
HHS. Jones argues that HHS violated his rights pursu-
ant to the VEOA, and further contends that the Board
erred in failing to consider the AJ’s bias against Jones.
Jones also asserts that he should have been entitled to a
hearing because there were disputed material facts.
The government responds that the Board did not err
in denying Jones’s requests for corrective action. Accord-
ing to the government, HHS did not violate Jones’s rights
under the VEOA by making its employment selections
through merit promotion announcements. The govern-
ment also asserts that the Board considered the allega-
tions of bias, but correctly found that there was no abuse
of discretion by the AJ.
We agree with the government that the Board did not
err in denying Jones’s requests for corrective action under
the VEOA. As the Board found, HHS posted three com-
petitive selection vacancy announcements, and concur-
rently posted announcements for the same positions
under merit procedures. Jones did not apply to the merit
promotion vacancy announcements, and HHS made its
10 JONES v. DVA
selections through those merit-based announcements.
The Board did not err in concluding that Jones was not
denied his rights pursuant to the VEOA because an
agency may solicit applications from both the public and
merit promotion applicants simultaneously, and then fill
the vacant position from the merit promotion certificate
without violating the rights of those who applied only
through the public, competitive process. Joseph v. Fed.
Trade Comm’n, 505 F.3d 1380, 1384–85 (Fed. Cir. 2007).
The Board considered Jones’s allegation of bias, but
the Board correctly concluded that there was no abuse of
discretion by the AJ. Jones argues that the AJ’s decision
not to grant a hearing is evidence of the bias, but Jones
has failed to point to any genuine dispute of material fact
that would necessitate a hearing. See Haasz, 108
M.S.P.R. at 353. None of the AJ’s actions exhibited “a
deep-seated favoritism or antagonism that would make
fair judgment impossible.” Bieber v. Dep’t of the Army,
287 F.3d 1358, 1362 (Fed. Cir. 2002) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). We therefore
conclude that the Board did not err in denying Jones’s
request for corrective action under the VEOA. We have
considered Jones’s remaining arguments, but find them
unpersuasive.
CONCLUSION
For the foregoing reasons, the decisions of the Board
in both appeals are affirmed.
AFFIRMED