John Paul Jones, III v. Department of Health and Human Services

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0105-I-1
v.
DEPARTMENT OF HEALTH AND DATE: July 23, 2015
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Paul Jones, III, Albuquerque, New Mexico, pro se.
James E. Simpson, 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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 2 Therefore, we DENY the petition for review and AFFIRM
2
We have considered the appellant’s arguments on review, most of which pertain to the
agency’s actions in his prior VEOA appeals and his analysis of the “disgraceful
treatment of veterans” and the Board’s obligations to veterans, and we find no basis for
disturbing the initial decision. Petition for Review (PFR) File, Tab 1 at 5-22. Contrary
to the appellant’s arguments on review, the Board may decide a VEOA claim on the
merits without holding a hearing when there is no genuine issue of material fact and one
party must prevail as a matter of law. Id. at 8, 21; see Davis v. Department of Defense,
105 M.S.P.R. 604, ¶ 12 (2007). Under 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d),
the Board’s role is limited to determining whether the hiring agency improperly
omitted, overlooked, or excluded a portion of the appellant’s experiences or work
history in assessing his qualifications for the vacancy, and the Board will not reevaluate
the weight the agency accorded these experiences in reaching its decision that the
appellant was not qualified for a given position of employment. Miller v. Federal
Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 12 (2014). Although the appellant
argues that the administrative judge should not have accepted the agency’s declaration
that he lacked the required 1 year of qualifying experience for the position, he fails to
identify any specific qualifying experience or work history included in his application
which the agency purportedly omitted, overlooked, or excluded in determining that he
was not qualified. PFR File, Tab 1 at 13; see Miller, 121 M.S.P.R. 88, ¶ 12. Regarding
the appellant’s argument that the administrative judge was biased, we find no evidence
that the administrative judge’s comments and actions in this appeal show “a deep-seated
favoritism or antagonism that would make fair judgment impossible.” PFR File, Tab 1
at 8; see Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)).
Although the appellant also claims that he was denied the opportunity to prove that the
agency committed prohibited personnel practices, the Board has no jurisdiction under
VEOA to consider this claim. PFR File, Tab 1 at 14; see Goldberg v. Department of
Homeland Security, 99 M.S.P.R. 660, ¶ 11 (2005). The appellant offers no new and
3
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
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 Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
material evidence or argument on review that was unavailable before the record closed,
and he has not shown that administrative judge erroneously interpreted a statute or
regulation. See 5 C.F.R. § 1201.115.
4
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.