Gingery v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHEN W. GINGERY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3225
__________________________
Petition for review from the Merit Systems Protection
Board in Case No. CH3330101038-I-1.
____________________________
Decided: May 9, 2012
____________________________
STEPHEN W. GINGERY, of Macomb, Michigan, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the Gen-
eral Counsel, Merit Systems Protection Board, of Wash-
ington, DC, for respondent. With her on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
GINGERY v. MSPB 2
Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.
PER CURIAM.
Stephen W. Gingery appeals from the final order of
the Merit Systems Protection Board (the “Board”) denying
for lack of jurisdiction his petition for review of an
agency’s failure to appoint him. See Gingery v. Dep’t of
the Army, No. CH-3330-10-1038-I-1, slip op. (M.S.P.B.
July 18, 2011) (“Final Order”). We affirm.
BACKGROUND
In March 2010, Gingery applied for one of two Gen-
eral Accounting Specialist positions at the U.S. Army
Tank-Automotive and Armament Command in Warren,
Michigan. Gingery received a 10-point 30% compensable
disability preference. In April 2010, Gingery was inter-
viewed for the position. According to Gingery, on the day
of his interview there were no available parking spaces
near the building where the interview was held. He was
thus required to park some distance from the building,
causing him to be late for his interview, which he asserts
caused him extreme anxiety and impaired his ability to
perform well in the interview. Ultimately, Gingery was
not selected for a position.
On July 24, 2010, Gingery filed a complaint at the
Department of Labor claiming that agency violated his
veterans’ preference rights. Gingery alleged that (1) as a
compensable 10-point preference-eligible veteran, “[he]
should have been placed at the top of the certificate of
eligibles”; and (2) his “HR contact failed to inform [him]
that parking was nearly impossible making [him] 45
minutes late for [his] interview and stressing [him] out
3 GINGERY v. MSPB
because [he] was late.” Resp’t App. 31. On September 9,
2010, the Department of Labor informed Gingery of its
determination that the agency had not violated Gingery’s
veterans’ preference rights, because “[Gingery’s] name
was at the top of the certificate of eligible candidates, and
2 preference eligible veterans were selected to fill the 2
positions.” Id. at 27.
On September 27, 2010, Gingery filed an initial ap-
peal at the Board. Id. at 16. A day later, the administra-
tive judge issued an order requesting evidence to
determine the Board’s jurisdiction to review the appeal,
which appeared to raise a claim under the Veterans
Employment Opportunities Act of 1998 (the “VEOA”). Id.
at 41. On October 4, 2010, Gingery filed a response to the
order, in which he alleged that the agency unlawfully
impaired his ability to compete as a preference-eligible
veteran by “[i]nterviewing him under adverse, extreme,
and disparate conditions . . .” and “[u]nlawfully using
category or alternative rating and ranking . . . instead of
numerical rating and ranking . . . .” Id. at 51. On Octo-
ber 18, 2010, the government submitted its response
seeking dismissal of the appeal for lack of jurisdiction. Id.
at 54.
On December 10, 2010, the administrative judge is-
sued an initial decision dismissing Gingery’s claim be-
cause he failed to establish that the Board had
jurisdiction over the appeal. Initial Decision, Gingery v.
Dep’t of the Army, No. CH-3330-10-1038-I-1, slip op.
(M.S.P.B. Dec. 10, 2010). In so concluding, the adminis-
trative judge noted that the record unequivocally demon-
strated that Gingery applied for the position, that he was
one of the top three referrals, that he was given an inter-
view, and that the two selectees were preference eligible.
The administrative judge further noted that even if the
GINGERY v. MSPB 4
agency used an alternative rating and ranking procedure,
Gingery did not suffer any adverse effect because he was
one of the top three candidates on the referral list and he
was interviewed for the position.
Gingery petitioned the full Board to review the ad-
ministrative judge’s initial decision. In its Final Order
dated July 18, 2011, the Board denied Gingery’s petition
for review. As the Board explained, Gingery “was clearly
allowed to compete for the . . . position, in that: he applied
for the position; the agency considered him for the posi-
tion; his name was among those forwarded to the select-
ing official for consideration under the job announcement;
and he was interviewed for the position.” Final Order,
slip op. at 2. The Board further explained that even if it
were true that the agency used a category rating and
ranking procedure rather than a numerical procedure,
this “did not impair [his] ability to compete, as he was one
of the top three candidates on the referral list and he was
interviewed for the position.” Id. at 2–3. The Board also
observed that “the record shows that the two applicants
selected were preference-eligible veterans,” and “the fact
that the agency exercised its discretion to fill the vacancy
by hiring two other preference-eligible candidates did not
deny [Gingery] the opportunity to compete for the posi-
tion.” Id. at 3.
Gingery appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of a final decision of the Board is circum-
scribed by statute. We may reverse a decision of the
Board only if it is: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
5 GINGERY v. MSPB
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence[.]” 5 U.S.C. § 7703(c). “Whether the
board had jurisdiction to adjudicate a case is a question of
law, which we review de novo.” Forest v. Merit Sys. Prot.
Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). The Board’s juris-
diction is “limited to those areas specifically granted by
statute or regulation.” Cowan v. United States, 710 F.2d
803, 805 (Fed. Cir. 1983). The burden of establishing
jurisdiction by a preponderance of the evidence rests with
the appellant, 5 C.F.R. § 1201.56(a)(2)(i), who “must make
a nonfrivolous allegation of jurisdictional facts,” Lourens
v. Merit Sys. Prot. Bd., 193 F.3d 1369, 1370 (Fed. Cir.
1999).
Jurisdiction under the VEOA requires an appellant
to: (1) show that he exhausted his remedies at the De-
partment of Labor and (2) make nonfrivolous allegations
that (i) he is a 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
regulation relating to veterans’ preference. See 5 U.S.C.
§ 3330a; Abrahamsen v. Dep’t of Veterans Affairs, 94
M.S.P.R. 377, 379 (2003). A nonfrivolous allegation
requires more than a “bare claim” that a violation of
preference-eligible rights occurred. Abrahamsen, 94
M.S.P.R. at 379.
In this case it is undisputed that Gingery exhausted
his remedies at the Department of Labor, that he is
preference-eligible, and that the action occurred after the
enactment of the VEOA. The only disputed issue, there-
fore, is whether Gingery made a nonfrivolous allegation
that the agency violated his rights under a statute or
regulation relating to veterans’ preference.
GINGERY v. MSPB 6
Gingery asserts that the Board erred by concluding
that he failed to make a nonfrivolous allegation that his
preference rights were violated. According to Gingery,
the Board erroneously ruled on the merits of his claim,
rather than limiting its analysis to the question of juris-
diction. Gingery contends that he made numerous non-
frivolous allegations and that the Board never found that
these allegations, if true, would not constitute violations
of his preference rights.
The government, in response, contends that the Board
correctly dismissed Gingery’s appeal for lack of jurisdic-
tion under the VEOA. According to the government,
Gingery failed to make a nonfrivolous allegation that the
agency violated his veterans’ preference rights. The
government contends that each of Gingery’s proffered
allegations is frivolous and lacks merit.
We agree with the government that Gingery failed to
establish the Board’s jurisdiction under the VEOA, be-
cause Gingery failed to make a nonfrivolous allegation
that his veterans’ preferences rights were violated. For
example, as the Board correctly concluded, Gingery’s
allegation of a lack of suitable parking spaces insuffi-
ciently alleges a violation of his rights. Even though
Gingery was not ultimately selected for the position he
sought, it is clear that he was permitted to compete.
Final Order, slip op. at 2. The VEOA only prohibits an
agency from denying a preference-eligible veteran the
opportunity to compete for a position; it does not guaran-
tee that the veteran will be selected. See Dale v. Dep’t of
Veterans Affairs, 102 M.S.P.R. 646, 652 (2006).
Moreover, as the Board noted, Gingery failed estab-
lish the Board’s jurisdiction by asserting that the agency
used an alternative method of rating and ranking candi-
7 GINGERY v. MSPB
dates. Final Order, slip op. at 2–3. Even assuming that
the agency used category rating and ranking under 5
U.S.C. § 3319 instead of numerical rating and ranking
under 5 U.S.C. § 3318, Gingery’s ability to compete was
not impaired. Under either methodology, Gingery was
one of the top three candidates on the referral list and
was interviewed for the position; thus, he suffered no
impairment of his ability to compete. Id. at 2–3; see also 5
U.S.C. §§ 3318(a), 3319(b). In any event, the evidence of
record indicates that, contrary to Gingery’s allegations,
the agency did not use category rating and ranking. See
Respondent’s App. 27, 61.
Gingery’s next allegation, that the two selectees were
neither preference-eligible nor qualified, similarly fails to
advance a nonfrivolous allegation in support of the
Board’s jurisdiction. The VEOA does not guarantee that a
veteran will be selected, only that the veteran may com-
pete. See Scharein v. Dep’t of the Army, 91 M.S.P.R. 329,
334 (2002) (“The VEOA does not guarantee a preference
eligible a position but only an opportunity to compete
with the other candidates on the certificate of eligibles.”).
As the Board explained, Gingery competed fully and fairly
for the open position. See Final Order, slip op. at 3.
Merely alleging inaccurately that a non-preference-
eligible candidate, rather than the appellant, received an
appointment is not a nonfrivolous allegation of a violation
of veterans’ preference rights under the VEOA.
Finally, Gingery’s general allegation that his non-
selection was unlawful also does not confer jurisdiction on
the Board, as this is, again, no more than a bare claim
that a violation of preference eligible rights occurred. See
Abrahamsen, 94 M.S.P.R. at 379.
GINGERY v. MSPB 8
CONCLUSION
We have considered Gingery’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
final decision of the Board.
AFFIRMED