Schoenrogge v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TODD J. SCHOENROGGE,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2010-3100
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA3330090467-I-1.
___________________________
Decided: July 14, 2010
___________________________
TODD J. SCHOENROGGE, of St. Francis, Kansas, pro se.
MATTHEW H. SOLOMSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
SCHOENROGGE v. JUSTICE 2
Before DYK, FRIEDMAN, and MOORE, Circuit Judges.
PER CURIAM.
Todd J. Schoenrogge (“Schoenrogge”) petitions for re-
view of an order of the Merit Systems Protection Board
(“MSPB” or “Board”) granting his request for corrective
action pursuant to the Veterans Employment Opportuni-
ties Act of 1998 (“VEOA”). Schoenrogge v. Dep’t of Justice,
No. DA3330090467-I-1 (M.S.P.B. Feb. 17, 2010) (“Final
Order”). The Board ordered the Department of Justice
(“the agency”) to reconstruct the hiring process and to
evaluate Schoenrogge for the position of Legal Assistant.
Schoenrogge contends that the Board should have ordered
his appointment and awarded him back pay. We conclude
that the decision of the Board was not final and therefore
we lack jurisdiction. We dismiss Schoenrogge’s petition.
BACKGROUND
On March 29, 2009, Schoenrogge applied as a prefer-
ence-eligible veteran for a position with the agency as a
Legal Assistant, GS-0986-05. The agency did not hire
him for the position. Schoenrogge claimed that the
agency failed to properly consider his application, in
violation of his rights under the VEOA. He filed a com-
plaint with the U.S. Department of Labor on April 9,
2009, which dismissed his complaint as without merit.
Schoenrogge then appealed to the Board.
In a September 28, 2009, initial decision, an Adminis-
trative Judge (“AJ”) determined that the Board had
jurisdiction over Schoenrogge’s non-selection claim under
the VEOA. Schoenrogge v. Dep’t of Justice, No.
DA3330090467-I-1 (M.S.P.B. Sept. 28, 2009) (“Initial
3 SCHOENROGGE v. JUSTICE
Decision”); see 5 U.S.C. § 3330a. 1 The AJ then found that
Schoenrogge is “preference eligible” as defined under 5
U.S.C. § 2108(3), and that he was therefore entitled to
have the agency consider and credit him with “all experi-
ence material to the position.” Initial Decision, slip op. at
4 (citing 5 U.S.C. § 3311(2)). The AJ determined that the
agency did not give Schoenrogge proper credit for certain
typing training reflected on his military documentation,
and thus found that the agency violated Schoenrogge’s
rights under the VEOA. The AJ concluded that Schoen-
rogge was entitled to corrective action. The AJ ordered
the agency to reconstruct the selection process within
twenty calendar days of the date the initial decision
became final. The AJ further ordered the agency to
inform Schoenrogge in writing of all actions taken to
comply with the order and the date on which the agency
believes it has fully complied. The AJ specifically noted
that “[i]n making this determination, I express no opinion
regarding whether the appellant should have been on the
final certificate of qualified candidates, or whether he
should have been appointed to the position.” Initial
Decision, slip op. at 4 n.2. 2
1 For the Board to have jurisdiction over an appeal
brought under the VEOA, an appellant must 1) show that
he exhausted his remedy with the Secretary of the De-
partment of Labor, and 2) make non-frivolous allegations
that i) he is preference eligible within the meaning of the
VEOA, ii) the action(s) at issue took place on or after the
October 30, 1998, enactment date of the VEOA, and iii)
the agency violated his rights under a statute or regula-
tion relating to veterans’ preference. Downs v. Dep’t of
Veterans Affairs, 110 M.S.P.R. 139, 143 (2008).
2 The AJ also found that the Board lacked jurisdic-
tion over Schoenrogge’s discrimination claims.
SCHOENROGGE v. JUSTICE 4
Schoenrogge filed a petition for review with the full
Board, contending, among other things, that the AJ erred
in ordering reconstruction of the hiring process and
arguing that the Board should order his appointment to
the position of Legal Assistant, including back pay. The
full Board denied review on February 17, 2010, making
the initial decision of the AJ the final decision of the
Board. In its final decision, the Board ordered the agency
to reconstruct the hiring process. The Board further
noted that “[n]o later than 30 days after the agency tells
the appellant that it has fully carried out the Board’s
Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this
appeal if the appellant believes that the agency did not
fully carry out the Board’s Order.” Final Decision, slip op.
at 2. There is no indication from the parties’ briefs as to
the status of the agency’s compliance with the Board’s
order. Nonetheless, Schoenrogge filed a petition for
review in this court.
DISCUSSION
On appeal, Schoenrogge argues that under our deci-
sion in Marshall v. Department of Health and Human
Services, 587 F.3d 1310 (Fed. Cir. 2009), the Board should
have ordered retroactive reinstatement, including the
payment of compensation and lost wages and benefits,
rather than order the agency to reconstruct the selection
process. The government points out that Marshall made
clear that retroactive reinstatement is the appropriate
remedy only where the agency admits that it would have
selected the veteran but for the agency’s violation of the
veteran’s preference rights. See id. at 1316. In contrast,
reconstruction of the selection process is an appropriate
remedy where, as here, “it is unknown whether a veteran
would have been selected for a position.” Id.5 SCHOENROGGE v. JUSTICE
We do not reach the merits for we agree with the gov-
ernment that we lack jurisdiction over this appeal under
28 U.S.C. § 1295(a)(9). Our jurisdiction under 28 U.S.C. §
1295(a)(9) extends only to “appeal[s] from a final order or
a final decision of the Board.” Weed v. Soc. Sec. Admin.,
571 F.3d 1359, 1361 (Fed. Cir. 2009) (quotations omitted).
We have held that the final judgment rule applies to
appeals from the MSPB, and that under the Board’s
regulations, “[i]f the Board grants a petition for review or
a cross petition for review, or reopens or dismisses a case,
the decision of the Board is final if it disposes of the entire
action.” Id. at 1362; see 5 C.F.R. § 1201.113(c). “The
Supreme Court has consistently held that as a general
rule an order is final only when it ends the litigation on
the merits and leaves nothing for the court to do but
execute the judgment.” Weed, 571 F.3d at 1361 (quota-
tions and alterations omitted). Where a decision of the
Board requires that the agency conduct further proceed-
ings, we have held that such a decision is not final for
jurisdictional purposes as it does not “leave nothing for
the court to do but execute the judgment” and does not
“dispose of the entire action.” Id. at 1362 (alterations
omitted). In particular, in Marshall, we remarked that
where the Board remands a case to an agency to “recon-
struct the selection process,” a petitioner’s request for
review to this court is “premature.” 587 F.3d at 1315; see
also Patterson v. Office of Pers. Mgmt., 111 F. App’x 590,
593 (Fed. Cir. 2004) (holding that a request for retroactive
appointment and backpay is not ripe for appellate review
when the Board has remanded to the agency for recon-
struction because these items may still be granted on
remand).
Here, Schoenrogge sought review of the Board’s deci-
sion ordering the agency to reconstruct the selection
process. Because the Board’s February 17, 2010, decision
SCHOENROGGE v. JUSTICE 6
effectively remanded to the agency for further adjudica-
tion, it was not a final decision for jurisdictional purposes.
We therefore conclude that we lack jurisdiction over this
petition for review, and we dismiss Schoenrogge’s peti-
tion.
DISMISSED
COSTS
No costs.