The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PAUL JONES, III, DOCKET NUMBER
Appellant, DE-3330-15-0005-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THIS FINAL ORDER IS NONPRECEDENTIAL *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.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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§ 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
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.