Jones v. Department of Health & Human Services ( 2016 )

NOTE: This disposition is nonprecedential.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
______________________
2015-3188, 2015-3189
______________________
Petitions for review of the Merit Systems Protection
Board in No. DE-3330-14-0427-I-1, DE-3330-14-0430-I-1,
DE-3330-14-0452-I-1, No. DE-3330-15-0115-I-1.
______________________
Decided: January 8, 2016
______________________
JOHN PAUL JONES, III, Albuquerque, NM, pro se.
AARON E. WOODWARD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER; LAURA T. VANDERLAAN, Assistant Regional
Counsel, Office of the General Counsel, Department of
Health & Human Services; SARA M. KLAYTON, Claims &
2 JONES v. HHS
Employment Law Branch, Office of the General Counsel,
Department of Health & Human Services.
______________________
Before MOORE, BRYSON, and WALLACH, Circuit Judges.
PER CURIAM.
In these consolidated appeals, John Paul Jones, III,
appeals from two final orders of the Merit Systems Pro-
tection Board denying his requests for corrective action
under the Veterans Employment Opportunity Act of 1998
(“VEOA”). We affirm.
I
Mr. Jones is a preference-eligible veteran who served
in the U.S. Army from March 25, 1968, to December 24,
1969. Since 2012, he has unsuccessfully appealed from
six different Board decisions in five cases before this court
as part of his efforts to obtain federal employment. See
Jones v. Dep’t of Veterans Affairs, No. 2015-3123 (Fed.
Cir. 2015); Jones v. Dep’t of Health & Human Servs., No.
2015-3038 (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).
II
In 2014, Mr. Jones applied for a position as a Health
Communications Specialist at the Centers for Disease
Control and Prevention, an agency within the Depart-
ment of Health and Human Services (“HHS”). The posi-
tion was advertised at the GS-12/13 grade level, and Mr.
Jones applied at the GS-13 level. The position required
one year of experience at the GS-12 level of difficulty and
responsibility. Candidates for the position at the GS-13
level were expected to have “experience translating and
disseminating public health information to various audi-
JONES v. HHS 3
ences and providing technical assistance and consultation
on health communication and marketing strategies.” Mr.
Jones completed a self-assessment questionnaire as part
of his application and rated himself as an expert in every
listed category of knowledge, skill, or ability. As a result
of his self-assessment, he was initially given a “Best
Qualified” rating for the position.
An HHS human resources specialist reviewed Mr.
Jones’s self-assessment and determined that his answers
were not supported by the experiences described in his 30-
page resume. As a result, HHS found that Mr. Jones was
not eligible for the position.
Mr. Jones then filed a complaint with the Department
of Labor claiming that HHS had violated his rights under
the VEOA when it found that he lacked the necessary
experience for the position. When the Department of
Labor did not grant Mr. Jones’s request for corrective
action, he filed a petition for review by the Merit Systems
Protection Board.
The administrative judge assigned to the case denied
Mr. Jones’s petition. The administrative judge found that
HHS had properly credited Mr. Jones with all of his
experience material to the Health Communications Spe-
cialist position but that HHS had nonetheless found him
unqualified for the position. The full Board affirmed the
administrative judge’s decision, and Mr. Jones appealed
to this court.
III
In 2014, Mr. Jones applied for three more positions at
HHS: Supervisory Public Health Advisor at the GS-15
grade level, Public Health Advisor at the GS-13 grade
level, and Public Health Advisor at the GS-12/13 grade
level. Each position required one year of specialized
experience at or equivalent to the next lower grade. Mr.
4 JONES v. HHS
Jones submitted lengthy, narrative-style resumes for each
position.
For the Supervisory Public Health Advisor position,
applicants were required to have one year of experience
“managing, directing, and implementing broad/complex
programs oriented to preventing mental, emotional, and
behavioral disorders and promoting mental health.” The
Subject Matter Expert (“SME”) who reviewed Mr. Jones’s
application found that he did not have the requisite
experience managing, directing, or implementing mental
health programs, and that the portion of his resume
dealing with mental health simply described personal
experiences observing others dealing with mental health
issues. In another portion of his resume, Mr. Jones
described working with an Alzheimer’s treatment pro-
gram. However, the SME found that Alzheimer’s disease
is more properly characterized as a neurological disease,
not a mental health condition. The SME found that
another reference to mental health in Mr. Jones’s resume
did not show specific experience managing, directing, or
implementing mental health programs. Consequently,
the SME found that Mr. Jones was not qualified for the
position.
For the Public Health Advisor position at the GS-13
level, applicants were required to have one year of experi-
ence “providing complex public health guidance and
leadership to ensure that program and project activities
in the areas of child trauma meet the needs of children,
adolescents and their families affected by trauma.” The
human resources specialist who reviewed Mr. Jones’s
application found that his resume did not demonstrate
the necessary specialized experience related to child
trauma and determined that he was not qualified for the
position.
For the Public Health Advisor position at the GS-
12/13 level, applicants were required to have one year of
JONES v. HHS 5
experience “developing policy initiatives designed to
improve the organization and delivery of family planning
services, training, information, and education and experi-
ence providing oversight for Title X family planning
grants.” The human resources specialist who reviewed
Mr. Jones’s application found that his resume did not
demonstrate experience relating to family planning policy
initiatives or Title X family planning grants and deter-
mined that he was not qualified for the position.
Mr. Jones commenced three separate proceedings at
the Department of Labor claiming that HHS had violated
his rights under VEOA when it found that he lacked the
necessary experience for each of the three positions. The
Department of Labor denied Mr. Jones’s request for
corrective action, and he petitioned for review by the
Merit Systems Protection Board.
The administrative judge assigned to the case denied
Mr. Jones’s petition. The administrative judge found that
HHS had properly credited Mr. Jones with all of the
experience material to the three positions but found him
unqualified for any of them. The full Board affirmed the
initial decision, and Mr. Jones appealed to this court.
IV
Mr. Jones argues that the agency did not credit his
experience when reviewing his applications for the four
HHS positions. Under the VEOA, agencies are required
to give a preference-eligible veteran credit for “all experi-
ence material to the position for which examined, includ-
ing experience gained in religious, civic, welfare, service,
and organizational activities, regardless of whether he
received pay therefor.” 5 U.S.C. § 3311(2); see 5 C.F.R.
§ 302.302(d). The Board’s role in a VEOA appeal is lim-
ited: “the VEOA does not empower the Board to supplant
the [agency’s] criteria with its own.” Jones v. Dep’t of
Veterans Affairs, No. 2015-3123, 2015 WL 5929394 at *4
(Fed. Cir. Oct. 13, 2015).
6 JONES v. HHS
Mr. Jones argues that Lazaro v. Dep’t of Veterans Af-
fairs, 666 F.3d 1316 (Fed. Cir. 2012), stands for the propo-
sition that in a VEOA appeal, the Board must
independently review whether the agency properly
weighed a veteran’s experiences. Lazaro, however, does
not stand for that proposition. Lazaro addresses the
situation in which an agency fails to take into account all
of the veteran’s experiences. See id. at 1321 (“the record
indicates . . . that Mr. Lazaro did not meet the specialized
experience requirements for the position because his
‘experience as an assistant Automated Data Processing
Applications Coordinator for 6 months did not fulfill the
experience requirements for the position at GS-11 level.’
There is no reference in the record indicating that Mr.
Lazaro’s other valuable experience was considered . . . .”).
In this case, the Board found that HHS had reviewed all
of Mr. Jones’s recited experiences when reviewing his
applications for the four positions at issue, and Mr. Jones
has not shown that finding to be erroneous.
We conclude that the Board’s decisions in these two
cases are supported by substantial evidence. For each
position at issue, the Board permissibly found that the
unrebutted evidence showed that the agency considered
the full range of Mr. Jones’s military, post-military, and
unpaid experience.
Mr. Jones also argues that he should have been
granted a hearing before the administrative judge in both
cases. The Board, however, 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 Veter-
ans Affairs, 108 M.S.P.R. 349, 353 (2008); see 5 C.F.R.
§ 1208.23(b) (“[a] hearing may be provided to the appel-
lant”). Mr. Jones has failed to create any genuine dispute
as to whether the agency officials considered his entire
resume for each position. Because Mr. Jones has not
pointed to any genuine dispute of material fact, the ad-
JONES v. HHS 7
ministrative judge did not err when he declined to conduct
a hearing in either case.
We have considered Mr. Jones’s remaining arguments
but find them unpersuasive.
No costs.
AFFIRMED