NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

SHERROD LEWIS BUMGARDNER, JR.,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2023-1713

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-3330-22-0043-I-1.

______________________ 

Decided: May 13, 2024 

______________________ 

THOMAS FRITZ MUTHER, JR., Minahan Muther Klinger, 

PC, Denver, CO, for petitioner.

 DANIEL BERTONI, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE NIOSI. 

______________________ 

Before REYNA, TARANTO, and HUGHES, Circuit Judges.

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2 BUMGARDNER v. NAVY

PER CURIAM. 

Sherrod Lewis Bumgardner, Jr., is a disabled veteran 

who qualifies for a 10-point preference relevant to certain 

hiring contexts. See 5 U.S.C. §§ 2108, 3309. When he applied for an excepted-service attorney position in the Department of the Navy, Office of the General Counsel (OGC), 

he was not selected. Mr. Bumgardner unsuccessfully 

sought relief from the Department of Labor, asserting a violation of the Veterans Employment Opportunities Act of 

1998 (VEOA), Pub. L. No. 105-339, 112 Stat. 3182 (codified 

as amended in part at 5 U.S.C. § 3330a). Mr. Bumgardner 

then appealed to the Merit Systems Protection Board, 

which decided that the Navy did not violate his veteranpreference rights. J.A. 1–14; Bumgardner v. Department 

of the Navy, No. DC-3330-22-0043-I-1, 2022 WL 595769 

(Feb. 23, 2022). We now affirm the Board’s decision. 

I 

In January 2021, the Navy’s OGC announced an anticipated vacancy in the Office of the Assistant General Counsel (National Security Law) for an attorney to serve in the 

position of Counsel, Joint Force Command Norfolk. The 

announcement noted that the position was an exceptedservice attorney position. J.A. 38. As a result, the hiring 

process was generally not subject to the formal veteranpreference rating system that is based on the Veterans’ 

Preference Act of 1944 (VPA), Pub. L. No 78–359, 58 Stat.

387 (codified as amended in part at 5 U.S.C. §§ 3309–20). 

See 5 U.S.C. § 3320; 5 C.F.R. § 302.101; Jarrard v. Department of Justice, 669 F.3d 1320, 1322–23 (Fed. Cir. 2012). 

OGC did, however, have an internal policy of giving 

veterans certain preferences in excepted-service attorney 

selection. This policy had two components. First, OGC

deemed veteran-preference eligibility a positive factor at 

all stages of review, meaning that at each candidate-eliminating step in the review process, OGC would continue to 

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BUMGARDNER v. NAVY 3

eligible veterans. J.A. 41. Second, when making final selections, OGC would offer a position to a preference-eligible 

veteran over a non-preference-eligible candidate if, based 

on all relevant considerations, the two were equally qualified for the position; and if multiple final candidates were 

preference eligible, OGC would offer the position first to

disabled veterans within the 10-point-preference group 

(with others in that group next in line), though OGC would 

not otherwise use a numerical scoring system for attorney 

selection. J.A. 41–42. 

Mr. Bumgardner applied for the counsel position as an 

external candidate on January 21, 2021. Mr. Bumgardner

said in his application that he is a disabled veteran who 

qualifies for a 10-point preference under the preference 

system. J.A. 44, 63–67. An OGC selection panel, reviewing 

the applications for the position, determined that Mr. Bumgardner and one other candidate, T.R., met the minimum 

qualifications for the position and were significantly better 

qualified than all the other candidates. Like Mr. Bumgardner, T.R. is a disabled veteran who qualifies for a 10-point 

preference (and so stated in his application). J.A. 44, 246–

50. But unlike Mr. Bumgardner, T.R. was already an OGC

attorney and was treated as an internal candidate. J.A. 44. 

After interviewing both Mr. Bumgardner and T.R., the selection panel unanimously determined that, while both 

candidates could do the job, T.R. was the better candidate. 

J.A. 46–47. On April 2, 2021, OGC selected T.R. for the 

counsel position based on the recommendation of the panel. 

J.A. 254. 

On August 16, 2021, Mr. Bumgardner filed a complaint 

with Labor, asserting a claim under the VEOA. After an 

investigation of Mr. Bumgardner’s complaint, Labor concluded that the Navy had not violated Mr. Bumgardner’s

veteran-preference rights because it had selected the person it believed had the most experience for the position and 

performed better during the interview and because the selection process for excepted-service attorneys is not subject 

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4 BUMGARDNER v. NAVY

to the formal veteran-preference rating system. J.A. 85–

86. Mr. Bumgardner appealed Labor’s decision to the 

Board. 

On February 23, 2022, the Board administrative judge 

assigned to the appeal issued an initial decision, which determined that the Navy did not violate Mr. Bumgardner’s 

veteran-preference rights. In particular, the administrative judge determined that “as a matter of law, [the Navy] 

could not have violated [Mr. Bumgardner’s] veteran[-]preference rights when it selected T.R. for the position because 

[Mr. Bumgardner] and T.R. [were] entitled to the same exact statutory benefits under the VEOA and agency policy.” 

J.A. 11. The Board then denied Mr. Bumgardner’s petition 

for review and affirmed the administrative judge’s initial 

decision, which thus became the final decision of the Board 

on January 31, 2023. J.A. 23–24. 

Mr. Bumgardner timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. 

§ 7703(b)(1)(A).

II

Our scope of review of decisions by the Board is limited 

by statute. We must affirm a decision by the Board unless 

it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c); see Brown v. Department of Veterans Affairs, 247 F.3d 1222, 1223 (Fed. Cir. 2001). Additionally, 

we review the Board’s determination that an appellant is 

not entitled to a hearing for an abuse of discretion. Dean 

v. Department of Labor, 808 F.3d 497, 504 (Fed. Cir. 2015) 

(citing 5 U.S.C. § 7703(c)). A decision on the merits without 

a hearing is appropriate when there is no genuine dispute 

of material fact and one party must prevail as a matter of 

law. Id. (citing Waters-Lindo v. Department of Defense, 112 

M.S.P.R. 1, ¶ 5 (2009); 5 U.S.C. § 3330a(d)(1)). 

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BUMGARDNER v. NAVY 5

Both Mr. Bumgardner and T.R. are disabled veterans 

who qualify for a 10-point preference, and thus neither was 

entitled to a greater statutory benefit than the other under 

the VEOA and agency policy. For that reason, and because

the selection panel determined that T.R. overall was the 

better candidate, we agree with the Board that the Navy

could not have violated Mr. Bumgardner’s veteran-preference rights when it selected T.R. for the counsel position. 

Given that there is no dispute of material fact underlying 

that determination, the Board did not abuse its discretion 

by denying Mr. Bumgardner a full hearing and deciding

the appeal as a matter of law based on the written record. 

Accordingly, we affirm. 

A 

Attorney selection within the excepted service is exempt from the formal veteran-preference rating system, 

and agencies need only follow the principle of veteran preference as far as administratively feasible. See 5 U.S.C. 

§ 3320 (requiring excepted-service selection to be in “the 

same manner and under the same conditions” as competitive-service selection); 5 C.F.R. § 302.101 (requiring attorney selection in the excepted service only to “follow the 

principle of veteran preference as far as administratively 

feasible”); see also Patterson v. Department of the Interior, 

424 F.3d 1151, 1157–59 (Fed. Cir. 2005) (determining that 

the Office of Personnel Management acted within its delegated authority in interpreting 5 U.S.C. § 3320 and in 

promulgating 5 C.F.R. § 302.101). We have held that an 

agency’s consideration of a candidate’s veteran status as a 

“positive factor” is sufficient to find no violation of that candidate’s veteran-preference rights. Id. at 1160; see Jarrard, 669 F.3d at 1323. Moreover, in the absence of clear 

evidence to the contrary, we presume that public officers 

have properly discharged their official duties. See Miley v. 

Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). 

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6 BUMGARDNER v. NAVY

B 

Both Mr. Bumgardner and T.R. are disabled veterans 

who qualify for a 10-point preference, entitling them to the 

exact same veteran-preference benefits under the relevant 

law and agency policy. And both, in their applications, submitted documentation to confirm their status in that regard. On that basis, the Board concluded that the Navy’s 

decision to give the position to T.R. as “the better candidate,” J.A. 46–47, could not have violated Mr. Bumgardner’s veteran-preference rights. We see no error in that 

conclusion.

Mr. Bumgardner argues that he and T.R. are not entitled to the exact same veteran-preference benefits, because 

Mr. Bumgardner was an external candidate for the counsel 

position entitled to veteran preference, while T.R. was an 

internal candidate and, as such, was not entitled to veteran 

preference. Bumgardner Opening Br. at 11–16. We see no 

such distinction under either the OGC policy or the relevant statutory and regulatory provisions. 

Regarding OGC’s internal policy on veteran preference

in excepted-service attorney selection: Nothing in that policy compels different treatment of internal and external 

preference-eligible veteran candidates. The internal policy 

states only that OGC deems veteran-preference eligibility 

to be a positive factor in attorney selection at all stages of 

the review process and that, when making final selections, 

if all relevant considerations for the position are deemed 

equal, OGC will offer the position to a preference-eligible 

veteran as opposed to an equally well-qualified non-preference-eligible candidate. J.A. 41–42. That policy does not 

distinguish internal from external candidates having the 

same preference-eligible status. 

It is true that the selection panel stated that “[o]nly one 

candidate, [Mr. Bumgardner] was deemed preference eligible and was given a positive factor,” and “[t]he second candidate, [T.R.], is a current OGC attorney and is treated as 

Case: 23-1713 Document: 28 Page: 6 Filed: 05/13/2024
BUMGARDNER v. NAVY 7

an internal selection; therefore, veteran[] preference does 

not apply.” J.A. 44. But the premise that T.R. was not 

preference eligible (at the same 10-point level) is simply a 

mistake; it is flatly contradicted by the record evidence. 

See J.A. 246–50, 251. The Board determined that both Mr. 

Bumgardner and T.R. were preference eligible. J.A. 10. 

And there is no evidence that could undermine that determination. Accordingly, we see no basis in the agency policy 

for requiring OGC, in the selection process at issue here, to 

have recognized Mr. Bumgardner’s preference-eligibility 

status but disregarded the same status for T.R. 

Regarding the relevant statutory and regulatory provisions: Mr. Bumgardner does not identify anything in the 

applicable statutes and regulations, see 5 U.S.C. § 3320; 5 

C.F.R. § 302.101, that calls for different treatment of internal and external preference-eligible veteran candidates for 

the same excepted-service attorney position. Nor has Mr. 

Bumgardner identified any precedent of this court calling 

for such different treatment. See Bumgardner Opening Br. 

at 11–16. 

Even in competitive-service selection, we have never 

ruled that veteran-preference benefits apply differently to 

internal and external preference-eligible veteran candidates vying for the same position. What we have done, as 

Mr. Bumgardner points out, Bumgardner Opening Br. at 

11–13, is to distinguish, in the context of competitive-service selection, between veteran-preference benefits during

initial appointment to the competitive service and subsequent transfer or promotion. Thus, in Kerner v. Department of the Interior, we said that “[c]ourts have interpreted 

the [VPA] to give preference in a veteran’s initial appointment to the federal civil service, but not to an employee’s 

transfer or other intra-agency movement, such as promotions,” and we also said that “[t]he text of the VEOA shows 

that it is intended to assist veterans in gaining access to 

federal civil service employment, not to give veterans preference in merit promotions.” 778 F.3d 1336, 1338 (Fed. Cir. 

Case: 23-1713 Document: 28 Page: 7 Filed: 05/13/2024
8 BUMGARDNER v. NAVY

2015). In other words, we have differentiated, in competitive-service selection, between open-competition selection, 

which “generally is used for employees seeking to join the 

competitive service and often is used for reviewing applicants outside the agency,” and merit-promotion appointment, which is “used when the position is to be filled by an 

employee of the agency or by an applicant from outside the 

agency who has ‘status’ in the competitive service.” Joseph 

v. Federal Trade Commission, 505 F.3d 1380, 1381–82

(Fed. Cir. 2007). But differentiating between two distinct

types of competitive-service selection to fill vacancies—

open-competition selection and merit-promotion selection—is not the same as differentiating between internal 

and external preference-eligible veteran candidates for the 

same position. 

We also have recognized, as Mr. Bumgardner points 

out, Bumgardner Opening Br. at 11–13, that in competitive-service merit-promotion selection in particular, agencies need not grant to internal preference-eligible veteran 

candidates each of the veteran-preference benefits that 

would have been available to those candidates in competitive-service open-competition selection. See Kerner, 778 

F.3d at 1339 (not granting an internal preference-eligible 

veteran candidate certain veteran-preference benefits). 

But the agencies also need not grant those benefits to external preference-eligible veteran candidates. See Joseph, 

505 F.3d at 1383–85 (not granting an external preferenceeligible veteran candidate certain veteran-preference benefits). Moreover, the only benefit to which external preference-eligible veteran candidates in competitive-service 

merit-promotion selection are entitled—the opportunity to 

compete for vacant positions—is one to which internal preference-eligible veteran candidates are already entitled. 

See 5 U.S.C. § 3304 (reciting “[p]reference eligibles . . . may 

not be denied the opportunity to compete for vacant positions” but noting “[t]his subsection shall not be construed 

to confer an entitlement to veteran[] preference that is not 

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BUMGARDNER v. NAVY 9

otherwise required by law”); see also Joseph, 505 F.3d at 

1382; Abell v. Department of the Navy, 343 F.3d 1378, 

1383–85 (Fed. Cir. 2003).

There is, in short, no persuasive support for Mr. Bumgardner’s argument that the Navy was required, when 

faced with two candidates (like him and T.R.) having the 

same preference-eligible status, to deny the benefit of that 

status to the internal candidate while giving the benefit of 

that status to the external candidate. We therefore see no 

basis for setting aside the Board’s conclusion that no violation was present when the Navy, considering two candidates equal in status regarding preference eligibility, chose 

the one better qualified for the job.

III

We have considered Mr. Bumgardner’s remaining arguments and find them unpersuasive. For the foregoing 

reasons, we affirm the decision of the Merit Systems Protection Board.

The parties shall bear their own costs.

AFFIRMED

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