Gingery v. Department of the Treasury

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHEN W. GINGERY,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
2012-3057
__________________________
Petition for review from the Merit Systems Protection
Board in consolidated case nos. CH3330110126-I-1 and
CH3330110127-I-1.
__________________________
Decided: August 13, 2012
__________________________
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 STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director
__________________________
GINGERY v. TREASURY 2
Before RADER, Chief Judge, PROST, and REYNA, Circuit
Judges.
PER CURIAM.
Petitioner Stephen W. Gingery, pro se, appeals the de-
cision of the Merit Systems Protection Board (“Board”),
denying his claim that the United States Department of
the Treasury (“Treasury”) violated his rights under the
Veterans Employment Opportunity Act of 1998 (“VEOA”)
when Treasury, as part of a Board-mediated settlement,
filled a vacancy for an Examination Technician (“ET”)
position. Petitioner challenges the Treasury’s decision to
internally fill the ET vacancy by reinstating an Internal
Revenue Agent. Upon careful consideration, we affirm for
the reasons outlined below.
I.
Mr. Gingery is a ten-point preference-eligible veteran
who sustained a service-connected disability while serving
in the United States Navy. In May and June 2010,
Treasury posted vacancy announcements on its internal
Career Opportunity Listing (“COL”) and on the USAJOBS
website (“503 Announcement”), seeking to fill an ET
position. On June 3, 2010, Mr. Gingery applied for the
position in response to the 503 Announcement, and later
submitted proof that he was a preference-eligible veteran,
which prompted Treasury to add ten points to his rating.
On June 30, 2010, a promotion certificate for the in-
ternal COL announcement was prepared and forwarded
to the selecting official, who did not select any of the
candidates because the position had been or was going to
be filled as the result of a Board-mediated settlement
agreement. The settlement agreement arose from Treas-
ury’s removal of an Internal Revenue Agent for poor
performance in February 2010. The Internal Revenue
3 GINGERY v. TREASURY
Agent sought Board review, and the parties agreed to
mediate the dispute. In anticipation of the mediation, the
selecting official for the ET position had advised the
Human Resources Specialist that the position would not
need to be announced externally. As part of the media-
tion, which occurred on July 30, 2010, and the settlement
agreement in which it culminated, the former Internal
Revenue Agent requested a voluntary downgrade to the
ET position at issue.
No action was taken on the 503 Announcement until
July 29, 2010, when the Human Resources Specialist
administering it discovered that the position had been
filled and cancelled the announcement. On September 2,
2010, Treasury notified Mr. Gingery that the position had
been filled, and the next day, Mr. Gingery asked if he had
been considered for the position. On September 11, 2010,
Mr. Gingery filed a VEOA complaint with the Department
of Labor (“DOL”), generally alleging that Treasury had
violated his VEOA rights by filling the ET position with
the former Internal Revenue Agent. The DOL issued its
determination on October 25, 2010, finding Mr. Gingery’s
complaint to be unsupported by the evidence.
On November 8, 2010, Mr. Gingery filed a petition
with the Board, again challenging the selection of the
former Internal Revenue Agent for the ET position. The
administrative judge (“AJ”) denied Mr. Gingery’s request
for corrective action because he failed to establish a
violation of his VEOA rights.
Mr. Gingery appealed the initial decision to the full
Board, which denied his petition. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1295a(9).
GINGERY v. TREASURY 4
II.
This court shall hold unlawful and set aside any
Board action, findings, or conclusions found to be “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
The VEOA provides in relevant part that “veterans. . .
may not be denied the opportunity to compete for vacant
positions for which the agency making the announcement
will accept applications from individuals outside its own
workforce under merit promotion procedures.” 5 U.S.C.
§ 3304(f)(1). The VEOA only prohibits an agency from
denying a preference-eligible veteran the opportunity to
compete for a position; it does not guarantee that the
veteran will be selected. See Gingery v. MSPB, 2012 WL
1606354, at *3 (Fed. Cir. May 9, 2012) (internal citation
omitted). A preference-eligible veteran who alleges that
an agency violated his rights under a statute or regula-
tion relating to veterans’ preference must first file a
complaint with the Secretary of Labor before appealing
the alleged violation to the Board. See 5 U.S.C.
§ 3330a(d)(a); see also 5 C.F.R. § 1208.2(b) (“[A] prefer-
ence eligible. . . may file an appeal with the Board, pro-
vided that he has satisfied the statutory requirements for
first filing a complaint with the Secretary of Labor and
allowing the Secretary at least 60 days to attempt to
resolve the complaint.”). Accordingly, to establish Board
jurisdiction over an appeal brought under the VEOA, an
appellant must show, among other things, that he ex-
hausted his administrative remedies with the Depart-
ment of Labor. Lazaro v. Dep’t of Veterans Affairs, 666
F.3d 1316, 1319 (Fed. Cir. 2012).
5 GINGERY v. TREASURY
III.
Substantial evidence, including the plain language of
the settlement agreement and an email from the selecting
official, supports the Board’s finding that the position was
lawfully filled by the former Internal Revenue Agent. In
particular, regulation 5 C.F.R. § 335.102 authorizes this
type of reassignment of a former employee to a new
position. Mr. Gingery claims that certain conditions are
required before such a reassignment must occur, but he
does not identify with specificity what those conditions
are and thus, proves no violation of them. He fails to cite
authority supporting his contention that the terms of
settlement agreement should not be carried out merely
because non-pertinent language in the agreement had
been redacted. In any event, the Board’s credibility
determinations are virtually unreviewable on appeal. See
Chamber v. Dep’t of Interior, 515 F.3d 1362, 1370 (Fed.
Cir. 2008).
Mr. Gingery argues that once he established Board
jurisdiction, the burden of proof shifted to Treasury to
prove by preponderant evidence that its actions were
lawful and did not violate his VEOA rights. To the con-
trary, it is well settled that to prevail, the appellant, not
the agency, must prove by preponderant evidence that the
agency’s action violated one or more of his statutory or
regulatory veterans’ preference rights in the selection
process. See Dale v. Dep’t of Veterans Affairs, 102
M.S.P.R. 646, ¶ 10, review dismissed, 199 F. App’x 948
(Fed. Cir. 2006); (citing Hillman v. Tennessee Valley
Authority, 95 M.S.P.R. 162, ¶ 16 (2003) (“If on remand the
appellant shows that his VEOA appeal is within the
Board’s jurisdiction and is not time barred, he must prove
by preponderant evidence that the agency’s selection
violated one or more of these statutory or regulatory
provisions.”)).
GINGERY v. TREASURY 6
Mr. Gingery also challenges the AJ’s finding that
Treasury acted within its discretion in filling the ET
position with the former Internal Revenue Agent as a
result of a Board-mediated settlement agreement because
there is no evidence that the former Internal Revenue
Agent was excepted from competitive service. Treasury
may fill a vacant position by any properly authorized
method, including reinstatement. 5 C.F.R. § 330.101-102.
Indeed, an agency may fill a position through reinstate-
ment rather than competitive examination process with-
out violating VEOA. See Sherwood v. Dep’t of Veterans
Affairs, 88 M.S.P.R. 208, ¶ 10 (2001) (“Likewise, although
the agency could have used the competitive examining
process . . . it was not required to use that method. Again,
Civil Service Rule 7.1 and 5 C.F.R. § 330.101, as well as 5
U.S.C. § 3316, gave the agency the discretion to fill the
Civilian Pay Technician position by reinstatement instead
of by competitive examining.”). Treasury may appoint by
reinstatement to a competitive service position a person
who was previously employed under career or career-
conditional appointment (or equivalent). 5 C.F.R.
§ 315.401(a). Here, the former Internal Revenue Agent
occupied a position in the competitive service under a
career or career-conditional appointment at the time of
her removal, making her eligible for reinstatement.
Therefore, the Board did not err. 1
Mr. Gingery also claims that the AJ erred in deter-
mining that Treasury was not obligated to consider him
1 To the extent Mr. Gingery challenges the docu-
mentary evidence supporting the government’s contention
that the former Internal Revenue Agent was reinstated,
the Board’s factual determinations are virtually unre-
viewable on appeal. In any event, we will not overturn
the Board’s factual findings based solely upon conclusory
assertions by Mr. Gingery that the documents were not
definitive.
7 GINGERY v. TREASURY
for the ET position because during the period of time that
the vacancy announcement was open, the “area of consid-
eration was not extended outside of the agency’s own
workforce.” Mr. Gingery argues that the AJ misconstrued
Montee v. Dep’t of the Army, 110 M.S.P.R. 271, ¶ 6 (2008)
because here, the 503 Announcement was open at the
same time as the internal COL announcement, thus
satisfying the statutory requirements to consider prefer-
ence-eligible veterans. He also relies upon Gingery v.
Dep’t of Veterans Affairs, 114 M.S.P.R. 175, ¶ 9 (2010), in
which the Board held that, “[b]ecause the agency accepted
applications from individuals outside its own workforce
but considered only applications from internal candidates,
the agency did not afford the appellant a bona fide oppor-
tunity to compete in violation of § 3304(f)(1).”
This case is distinguishable, however, because here,
the selecting official non-selected all of the putative
appointees on the internal COL announcement when he
learned that the position had been filled pursuant to a
settlement agreement. Therefore, the selecting official
did not consider applications received as a result of the
internal announcement. Human Resources Assistant
Lanita Barren provided a declaration, stating that Treas-
ury only accepted applications from its employees for the
vacancy announcement because it was only open to inter-
nal candidates. A certificate of eligibles was prepared
only for applications received as a result of the internal
COL announcement. Mr. Gingery’s name was not in-
cluded on the certificate because he could not apply under
the internal vacancy announcement. The certificate was
referred to the selecting official, who returned the certifi-
cate stating no selection was made. The agency never
issued an external certificate of eligibles for applications
received pursuant to the 503 Announcement because it
cancelled that announcement and filled the position with
GINGERY v. TREASURY 8
the former Internal Revenue Agent. Mr. Gingery cites no
authority to support his assertion that the exclusion of an
external applicant’s name on a certificate of eligibles
prepared solely as a result of the receipt of applications in
response to an internal announcement violates VEOA.
Nor does the Treasury violate veterans’ preference rights
when it cancels a recruitment action for any lawful rea-
son. See Abell v. Dep’t of the Navy, 343 F.3d 1378, 1383-
84 (Fed. Cir. 2003). 2 Here, cancellation because the
position had been filled neither demonstrated bad faith
nor violated the law.
We have considered Mr. Gingery’s other arguments
made on appeal and find that they provide no basis for
relief. For the foregoing reasons, the decision of the
Board is hereby
AFFIRMED
COSTS
Each party shall bear its own costs.
2 The fact that Treasury erred in stating that the
position had been filled with an internal applicant rather
than pursuant to the settlement agreement does not alter
this result.