UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN PAUL JONES, III,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-3330-15-0005-I-1

DATE: July 24, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

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

Joan M. Zanzola, Chicago, Illinois, 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) on the merits without a hearing. Generally, 

we grant petitions such as this one only when: the initial decision contains 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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erroneous findings of material fact; 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, applied for the position 

of GS-12/13 Public Health Advisor under open competitive vacancy 

announcement HHS-SAMHSA-14-1171649. Initial Appeal File (IAF), Tab 8 at 8,

37-38, Tab 9 at 4-10. The agency rated him ineligible for the position based on a 

lack of qualifying education and experience. IAF, Tab 8 at 39-40. After 

exhausting his administrative remedies before the U.S. Department of Labor, the 

appellant filed a VEOA appeal with the Board and requested a hearing. IAF, 

Tab 1 at 2-5, 9. 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 judgment as a matter of law. IAF, Tab 18, Initial 

Decision (ID) at 1-2, 9. 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 filed a response 

in opposition. PFR File, Tab 3.

¶3 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. 
3

§ 3304(f)(1). PFR File, Tab 1 at 12. However, we agree with the administrative 

judge that the appellant failed to establish Board jurisdiction over this claim. 

IAF, Tab 12 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 8 at 39-40, Tab 9 

at 11-13. 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).

¶4 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 12-13. 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 12 at 2.

¶5 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 
4

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.

¶6 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 13 at 5, 21-26. 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 

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 
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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 10-12.

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.
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board