                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN PAUL JONES, III,                           DOCKET NUMBER
                  Appellant,                         DE-3330-15-0013-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: July 24, 2015
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           John Paul Jones, III, Albuquerque, New Mexico, pro se.

           Corey Thompson, Atlanta, Georgia, 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 Veterans Employment Opportunities Act of 1998 (VEOA) appeal on
     the merits without a hearing. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial


     ∗
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 is a 5-point preference-eligible veteran who applied for a
     Public Health Advisor position with the agency under open competitive vacancy
     announcement HHS-CDC-D4-14-1203072.            Initial Appeal File (IAF), Tab 10
     at 22, 24, 69, 71-75.       The agency rated him ineligible for the position, the
     appellant filed a VEOA complaint with the U.S. Department of Labor (DOL), and
     DOL closed its investigation after finding no veterans’ preference violation. IAF,
     Tab 1 at 9, Tab 10 at 20.
¶3        The appellant filed a Board appeal and requested a hearing. IAF, Tab 1
     at 2-3. The administrative judge found that the appellant established jurisdiction
     over the appeal, but that there were no material facts in dispute and that the
     agency was entitled to judgement as a matter of law.         IAF, Tab 16, Initial
     Decision (ID) at 1-2, 8. He therefore denied the appellant’s request for corrective
     action on the merits without a hearing. Id. The appellant has filed a petition for
     review.     Petition for Review (PFR) File, Tab 1.    The agency has not filed a
     response.
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¶4           On review, the appellant argues that the administrative judge failed to
     address whether the agency violated his right to compete under 5 U.S.C.
     § 3304(f)(1). Id. at 11-12. However, we agree with the administrative judge that
     the appellant failed to establish Board jurisdiction over this claim. IAF, Tab 11
     at 2.   To establish jurisdiction over a right to compete appeal under 5 U.S.C.
     § 3330a(a)(1)(B), an appellant must, among other things, make a nonfrivolous
     allegation that the agency denied him the opportunity to compete for the position.
     Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). In this
     case, it is undisputed that the agency considered the appellant’s application and
     rated him ineligible for the position on the basis that he did not meet the
     minimum qualification requirements. IAF, Tab 10 at 20. Thus, the appellant was
     afforded his right to compete under 5 U.S.C. § 3304(f)(1). See Harellson v. U.S.
     Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010) (the only issue in an appeal
     concerning 5 U.S.C. § 3304(f)(1) is whether the appellant was permitted to
     compete for the position on the same basis as other candidates). The appellant’s
     argument that the agency failed to assess his experience correctly is beyond the
     purview of a VEOA appeal under 5 U.S.C. § 3330a(a)(1)(B). IAF, Tab 1 at 5; see
     Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 11 (2014).
¶5           The appellant also argues that the administrative judge should have
     adjudicated his prohibited personnel practice claims, including his age
     discrimination claim. PFR File, Tab 1 at 12-14. However, the sole issue in a
     VEOA appeal under 5 U.S.C. § 3330a(a)(1)(A) is whether the agency violated the
     appellant’s rights under a statute or regulation relating to veterans’ preference.
     The Board’s jurisdiction in such an appeal does not extend to the adjudication of
     discrimination and other prohibited personnel practice claims.          Haasz v.
     Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 10 (2008); Ruffin v.
     Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001). We agree with the
     administrative judge’s ruling on this issue. IAF, Tab 11 at 2.
                                                                                       4

¶6        The appellant further argues that the administrative judge should have
     granted his request for a hearing. PFR File, Tab 1 at 6-10, 13. He argues that a
     hearing was required in accordance with the initial decision in Jones v.
     Department of Health & Human Services, MSPB Docket No. DE-3330-10-0168-
     I-1, Initial Decision (Apr. 30, 2010). PFR File, Tab 1 at 6-10, 13. We disagree
     because an initial decision issued by an administrative judge has no precedential
     effect. See Rockwell v. Department of Commerce, 39 M.S.P.R. 217, 222 (1988).
     The appellant also argues, citing 5 C.F.R. § 1201.24(d), that “[a]n appellant
     generally has a right to a hearing on the merits if the appeal has been timely filed
     and the Board has jurisdiction over the appeal.” PFR File, Tab 1 at 6. VEOA,
     however, provides an exception to this general rule. 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, 108 M.S.P.R. 349, ¶ 9.
¶7        In this regard, the appellant argues that there was a genuine dispute of
     material fact as to whether the agency credited his military experience as a medic
     as being work in a public health program for the Federal government. PFR File,
     Tab 1 at 10. Under 5 U.S.C. § 3311(2), a preference eligible is entitled to credit
     for all experience material to the position for which examined, including
     experience gained in religious, civic, welfare, service, and organizational
     activities, regardless of whether he received pay therefor.     However, we have
     reviewed the appellant’s arguments, and we find that he is disputing the weight
     that the agency gave to his prior experience rather than whether the agency
     considered that experience in evaluating his application. PFR File, Tab 1 at 10;
     IAF, Tab 11 at 21-25. 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 that the agency accorded these experiences in reaching its
                                                                                          5

     decision that the appellant was not qualified for the position. Miller,
     121 M.S.P.R. 88, ¶ 12. The Board’s assessment does not include a review of the
     weight that the agency gave to the appellant’s prior experiences in determining
     that he was not qualified.      Id., ¶ 9.     Finally, we find that the appellant’s
     allegations of agency malfeasance in unrelated actions and legal proceedings are
     not relevant to the issues in the instant appeal. PFR File, Tab 1 at 10-11, 13.
¶8        For the reasons explained in the initial decision, we agree with the
     administrative judge that there is no genuine dispute of material fact in this
     appeal, and that the agency is entitled to judgment as a matter of law. ID at 6-8.

                      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.
                                                                                     6

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.
     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.
