Gingery v. Department of the Treasury , 403 F. App'x 498 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHEN W. GINGERY,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
2010-3093
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH3330090303-I-1.
___________________________
Decided: October 7, 2010
___________________________
STEPHEN W. GINGERY, of Macomb, Michigan, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KIRK T, MANHARDT,
Assistant Director.
__________________________
GINGERY v. TREASURY 2
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Petitioner Stephen W. Gingery challenges the decision
of the Merit Systems Protection Board denying his re-
quest for relief under the Veterans Employment Oppor-
tunities Act of 1998 (“VEOA”). We affirm.
BACKGROUND
Mr. Gingery is a preference-eligible veteran with a
service-connected disability rating of 30 percent. On June
2, 2008, he applied for a position as an Internal Revenue
Agent, GS-05/11, pursuant to vacancy announcement
08PH3-SB0189-512-5T11 (“the 5T11 announcement”). He
expressed an interest in the Detroit, Mount Clemens, and
Pontiac, Michigan offices. The 5T11 announcement
stated that it sought to establish “a standing inventory of
eligible applicants.” The announcement further specified
that applicants who applied before April 28, 2008, would
be considered for a position to be filled in September 2008
and that applicants who applied on or after April 28,
2008, would receive consideration for future vacancies.
Among the offices designated “for the September 2008
hire” was Pontiac, Michigan. Based on his application
date of June 2, 2008, Mr. Gingery was not eligible for
consideration for any of the September 2008 positions.
The 5T11 announcement explained that the agency
would first determine whether an applicant was “eligible
and tentatively qualified” based on his responses to the
application questions. Next, the applicant would be
invited to complete an on-line assessment. If he passed
the on-line assessment, he would be placed into a tenta-
3 GINGERY v. TREASURY
tive category and would be interviewed. If the applicant
passed the interview, according to the announcement, he
would be “assigned to one of three category groups (A, B,
or C)” and veterans’ preferences would be applied. For
grade levels 5 and 7, the announcement explained,
[q]ualified veterans who claim preference based
on a compensable service-connected disability of
30% or more . . . and those with a compensable
service-connected disability of 10% but less than
30% . . . move from their assigned category group
to the top of the highest category group (A).
The 5T11 announcement stated that applicants “may be
‘tentatively’ assigned to a category group pending qualifi-
cations validation and assessment results. Final category
assignment does not occur until referral on a certificate.”
In August 2008, after being notified that he was “ten-
tatively” eligible for the Internal Revenue Agent position
at the GS-5, -7, and -9 levels, Mr. Gingery was invited to
complete the on-line assessment, which he did. Following
his on-line assessment, Mr. Gingery was assigned a
“Potential Rating” of “Category B Highly Qualified.”
Rather than scheduling an interview in accordance
with the prescribed application process, Mr. Gingery filed
a VEOA complaint with the Department of Labor
(“DOL”). Mr. Gingery’s complaint, which referenced the
5T11 announcement, alleged that the Department of the
Treasury had violated his veterans’ preference rights. In
particular, he alleged that “as a 10-point preference
eligible with a 30% disability rating, I am entitled to be
placed at the top of category A with similar preference
eligibles, but I was notified that I was placed in category
B.” He requested “that my veterans’ preference be cor-
rectly applied and that I receive all due and proper con-
GINGERY v. TREASURY 4
sideration for the January 2009 hiring time frame.” On
January 9, 2009, the DOL closed its investigation of Mr.
Gingery’s complaint without resolution.
Mr. Gingery filed a timely appeal with the Board, as-
serting that the agency violated 5 U.S.C. § 3319(b) when
it “failed to accord the Appellant his veteran’s preference
with regards to grade levels GS-5 and 7 by failing to place
him at the top of Category A” in connection with his job
application under the 5T11 announcement. In response,
the agency argued that Mr. Gingery’s claim was prema-
ture because no final category rating had been (or could
be) assigned absent an interview and referral on a certifi-
cate of eligibles. In the course of the proceedings before
the administrative judge, the Department of the Treasury
submitted a declaration addressing the hiring process and
Mr. Gingery’s progress through that process. The decla-
ration stated that Mr. Gingery had completed the initial
application and on-line assessment stages but had not yet
participated in an interview. As such, Mr. Gingery had
received only a “tentative” category rating. According to
the declaration, he “will receive a final rating after he is
interviewed. If he passes the interview he will then be
referred to the business unit on a Certificate of Eligibles.
At that time, Mr. Gingery will be placed at the top of
Category A . . . for grades 5 and 7 and at the top of Cate-
gory B for grade 9.” The declaration also noted that on
September 15, 2008, one individual was hired as an
Internal Revenue Agent in Pontiac, Michigan, through
the Federal Career Intern Program (“FCIP”). In response
to the agency’s submission, Mr. Gingery challenged the
validity of the FCIP and argued that the agency’s use of
that program to fill the September 2008 Pontiac vacancy
had “deprived [him] of his veterans’ preference rights.”
5 GINGERY v. TREASURY
The administrative judge denied Mr. Gingery’s re-
quest for corrective action, concluding that “the record
reflects that the appellant has not yet received a final
rating, nor been referred on a certificate of eligibles, for
the vacancies in question, and that therefore he cannot
presently demonstrate any infringement of his preference
rights under the VEOA.” The administrative judge also
addressed the Pontiac FCIP hire, finding that the
agency’s “filling of such a position in Pontiac pursuant to
a separate announcement under the FCIP, did not consti-
tute a violation of [Mr. Gingery’s] rights.” The full Board
affirmed the administrative judge’s decision with respect
to the 5T11 announcement and dismissed Mr. Gingery’s
claim regarding the FCIP hire for lack of jurisdiction. Mr.
Gingery then petitioned for review by this court.
DISCUSSION
1. Mr. Gingery requests that this court “disqualify
the Merit Systems Protection Board in its entirety and
take jurisdiction over the adjudication of the merits of the
instant case utilizing the record as modified.” In particu-
lar, he argues that the Board has “acted hostilely and
purposely prejudiced and injured” him, listing various
reasons for “the Board’s virtual inability to render a ‘fair’
decision.”
To warrant recusal or a new hearing on the basis of
prejudice, Mr. Gingery was required to show that the
administrative judge or the Board exhibited “a deep-
seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Dep’t of the Army, 287
F.3d 1358, 1362 (Fed. Cir. 2002). “[J]udicial remarks . . .
that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge” unless they derive
GINGERY v. TREASURY 6
from an extra-administrative source. Id. After reviewing
Mr. Gingery’s claims of prejudice, we conclude that none
of them even remotely satisfies the required standard for
bias. We therefore decline the relief Mr. Gingery seeks.
2. On the merits of his appeal, Mr. Gingery does not
contest the Board’s conclusion that his VEOA claim
concerning the 5T11 announcement was premature, nor
does he dispute any of the factual findings underlying
that decision. Rather, he challenges the agency’s use of a
“tentative” rating, arguing that the use of a tentative
rating is impermissible under the statutes and regula-
tions governing veterans’ preference rights, and that even
assuming the use of a tentative rating is permissible in
some instances, the agency was nevertheless required by
the applicable regulation to issue a final rating in his
case. We disagree.
Under 5 U.S.C. § 3319(a), an agency may establish
category rating systems, in lieu of numerical ratings, for
evaluating applicants for positions in the competitive
service. When an agency establishes a category rating
system, “preference-eligibles shall be listed ahead of
individuals who are not preference eligibles.” Id. §
3319(b). The statute further provides that for other than
scientific and professional positions at or above the GS-9
level, “qualified preference-eligibles who have a com-
pensable service-connected disability of 10 percent or
more shall be listed in the highest quality category.” Id.
The statute’s implementing regulations provide general
guidelines for an agency’s use of a category rating system.
See 5 C.F.R. §§ 337.303 to -.304. However, neither the
statute nor the regulations specify any particular method
for rating applicants, leaving such details to the hiring
agency’s discretion. Thus, while an agency must “[p]lace
applicants in categories based upon their job-related
7 GINGERY v. TREASURY
competencies or their knowledge, skills, and abilities,” see
5 C.F.R. § 337.303, nothing in the statute or regulations
prescribes the particular categories or levels of compe-
tence that must be used, and nothing dictates how and
whether tentative ratings may be used prior to the issu-
ance of final ratings.
Accordingly, there is no legal support for Mr. Gin-
gery’s argument that the Treasury Department’s use of
tentative ratings was improper. Not only do the applica-
ble rules permit the agency to apply tentative ratings in
general, but the 5T11 announcement specifically stated
that the agency would apply veterans’ preferences in
accordance with 5 U.S.C. § 3319(b) upon an applicant’s
successful completion of an interview. The 5T11 an-
nouncement also provided clear notice that, after complet-
ing the on-line assessment but before passing the
interview, an applicant would be placed into a rating
category that would be “tentative.”
We likewise reject Mr. Gingery’s assertion that the
agency was required to assign him a final rating pursuant
to 5 C.F.R. § 332.402. That regulation provides that
“OPM or a Delegated Examining Unit (DEU) will refer
candidates for consideration by simultaneously listing a
candidate on all certificates for which the candidate is
interested, eligible, and within reach. . . .” The regulation
imposes no requirement to assign any category ratings,
whether final or tentative. In addition, the regulation
requires that an applicant be “eligible,” not merely “tenta-
tively eligible.” While Mr. Gingery’s application indicated
that he was both “interested in” and “within reach of”
positions in Detroit, Mount Clemens, and Pontiac, Michi-
gan, it is clear that under the agency’s procedures, Mr.
Gingery would not be regarded as “eligible” for those
positions until he successfully passed the required inter-
GINGERY v. TREASURY 8
view. Prior to verification of eligibility, the agency was
not obligated to refer Mr. Gingery on a certificate of
eligibles, nor was it obligated to assign him a final cate-
gory rating. Accordingly, the agency did not act improp-
erly by assigning Mr. Gingery a “Potential Rating” of
Category B, without applying the veteran’s preference,
prior to his successful completion of an interview under
the 5T11 announcement.
Nor is there anything in the record to indicate that
Mr. Gingery was prejudiced by the agency’s use of a
“potential” rating. In fact, the agency’s unrebutted evi-
dence establishes that Mr. Gingery will be moved to the
top of Category A (the highest category) for grades 5 and 7
if he passes the interview. Because Mr. Gingery’s appeal
regarding the 5T11 announcement is premature in the
absence of a final rating, we affirm the Board’s denial of
relief under the VEOA.
3. Mr. Gingery also argues that the Board erred in
dismissing his claim that the agency violated his veter-
ans’ preference rights by using the FCIP to fill the Sep-
tember 2008 vacancy in Pontiac, Michigan. In particular,
Mr. Gingery asserts that the Board improperly inter-
preted the law to require him to exhaust his administra-
tive remedies as to each individual vacancy
announcement. He further argues that the 2008 FCIP
hire, even if made under a separate vacancy announce-
ment, nevertheless filled the same position (Internal
Revenue Agent) at the same location (Pontiac, Michigan)
specified by Mr. Gingery in his DOL complaint concerning
the 5T11 announcement. Thus, he contends, he has
sufficiently exhausted his administrative remedies as to
his FCIP claim. We disagree.
9 GINGERY v. TREASURY
The VEOA requires an individual to exhaust his ad-
ministrative remedies with the DOL before filing an
appeal with the Board. 5 U.S.C. § 3330a(d); see Waddell
v. U.S. Postal Serv., 94 M.S.P.R. 411, 414 (2003). In cases
of nonselection under the VEOA, the Board typically
determines whether an appellant has exhausted his
remedies with the DOL based on whether the appellant
submitted a complaint to the DOL “asserting that the
agency violated his rights in connection with a specific
position or vacancy announcement.” Wheeler v. Dep’t of
Def., 113 M.S.P.R. 376, 380 (2010).
Even when a complaint refers to a specific position or
vacancy announcement, it may nevertheless be insuffi-
cient to constitute exhaustion as to particular claims if
the complaint does not adequately set forth the basis for
those claims, so that the DOL can undertake an appropri-
ate investigation. As this court has held in the analogous
context of whistleblowing claims, exhaustion requires
that an appellant “inform the [reviewing agency] of the
precise ground of his charge” and provide it with “suffi-
cient basis to pursue an investigation which might have
led to corrective action.” Briley v. Nat’l Archives & Re-
cords Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001),
quoting Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526
(Fed. Cir. 1992); see also Mintzmyer v. Dep’t of the Inte-
rior, 84 F.3d 419, 422 (Fed. Cir. 1996) (no Board jurisdic-
tion over four of eight alleged acts of whistleblower
reprisal, because the appellant failed to raise those four
alleged agency actions in her complaint before the Office
of Special Counsel). While “allegations of a VEOA viola-
tion should be liberally construed,” see Wheeler, 113
M.S.P.R. at 380, the VEOA requires that complaints to
the DOL “contain a summary of the allegations that form
the basis for the complaint.” 5 U.S.C. § 3330a(a)(2)(B).
Thus, when an appellant’s complaint entirely fails to
GINGERY v. TREASURY 10
inform the DOL of a particular alleged violation or ground
for relief, the Board lacks jurisdiction over the claim.
Here, Mr. Gingery contends that his DOL complaint
asserted a violation of his rights in connection with the
specific position that was filled through the FCIP pro-
gram in September 2008. However, the violation he
asserted relates only to the agency’s application of veter-
ans’ preference to his category rating, not to its use of the
FCIP to fill the September 2008 vacancy. The complaint
contains no reference to the FCIP. Because Mr. Gingery’s
DOL complaint did not refer to his FCIP-related allega-
tions or in any way inform the DOL of the need to investi-
gate that claim, Mr. Gingery failed to exhaust his
administrative remedies as to that issue. 1
4. Finally, Mr. Gingery contends that the Board erred
in dismissing his claims “with prejudice.” He suggests
that the Board’s “ruling[s] on the merits” trigger the
“operation of res judicata” and foreclose any opportunity
for him to correct jurisdictional deficiencies or to renew
his claims once they ripen. The record reflects that the
Board’s orders do not have the preclusive effect that he
claims.
With respect to the 5T11 announcement, the adminis-
trative judge noted Mr. Gingery’s own concession that his
claims were premature and stated, “When the agency has
1 In any event, to the extent that Mr. Gingery con-
tends that he should have been considered for the Sep-
tember 2008 vacancy, his claim would appear to have two
significant flaws: He failed to meet the filing deadline for
that position, and he had not been assigned a final rating
or been placed on a certificate of eligibles at the time that
position was filled. In view of Mr. Gingery’s ineligibility
for that position, we reject his procedural arguments as to
the agency’s use of the FCIP to fill the Pontiac vacancy.
11 GINGERY v. TREASURY
issued him a final rating and referred him on a certificate
for the vacancies he is seeking, the appellant may again
appeal any alleged violation of his rights under the VEOA
implicated by these actions.” With respect to Mr. Gin-
gery’s other claim, the Board’s dismissal rested solely on
Mr. Gingery’s failure to exhaust his administrative reme-
dies. Nothing in the Board’s jurisdictional ruling pre-
cludes Mr. Gingery from re-filing such an appeal, after his
claim has ripened and he has met all the jurisdictional
requirements for obtaining Board review of the merits of
his claim.
AFFIRMED