UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 59

Docket No. CH-3443-06-0582-C-2

Stephen W. Gingery,

Appellant,

v.

Department of Defense,

Agency.

July 28, 2014

Stephen W. Gingery, Macomb, Michigan, pro se.

Susan L. Lovell, Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant petitions for review of a compliance initial decision that 

denied his petition for enforcement of a final Board order. For the reasons set 

forth below, we DENY the petition for review and AFFIRM the initial decision. 

BACKGROUND

¶2 This matter, originally brought as a claim under the Veterans Employment 

Opportunities Act of 1998 (VEOA), has an involved procedural history that 

includes a 2008 decision by the U.S. Court of Appeals for the Federal Circuit 

reversing a Board decision and remanding this matter to the Board, which in turn 
2

remanded the case to the administrative judge. Gingery v. Department of 

Defense, 550 F.3d 1347 (Fed. Cir. 2008); Gingery v. Department of Defense, 

112 M.S.P.R. 306 (2009). In a remand initial decision, the administrative judge 

found that the agency violated the appellant’s veterans’ preference rights and 

ordered the agency to reconstruct the hiring process for the GS-0511-07/09 

Auditor positions at issue in the appellant’s VEOA appeal. MSPB Docket No. 

CH-3443-06-0582-M-1, Remand File, Tab 21, Remand Initial Decision at 2, 8-10. 

The remand initial decision became the final decision of the Board when neither 

party petitioned for review. 

¶3 Pursuant to the remand initial decision, the agency reconstructed the 

selection process and made the appellant a tentative offer of employment. MSPB 

Docket No. CH-3443-06-0582-C-1, Initial Compliance File (C-1 ICF), Tab 3

at 8-10. A dispute then arose regarding the agency’s reconstruction process, 

including the agency’s requirement that the appellant obtain a security clearance. 

See C-1 ICF, Tabs 1, 3-5. In a compliance recommendation, the administrative 

judge recommended that the appellant’s petition for enforcement be granted, but 

she did not address the security clearance issue. C-1 ICF, Tab 9 at 7. In a

September 2012 decision, the Board found the agency in compliance and,

regarding the appellant’s claim that the requirement that he obtain a security 

clearance was improper, the Board specifically held that “successful completion 

of a security background check was a requirement of the [Auditor] position at the 

time the appellant would have been selected.” MSPB Docket No. CH-3443-06-

0582-X-1, Final Order at 11 (Sept. 18, 2012). 

¶4 Thereafter, the appellant filed the instant second petition for enforcement 

asserting that the agency was in noncompliance because it was requiring him to 

fill out the security clearance forms as of the date he completed them and not as 

of the date he would have completed them had he been properly hired in 2006. 

MSPB Docket No. CH-3443-06-0582-C-2, Initial Compliance File (C-2 ICF),

Tab 1 at 10-13. After affording the parties the opportunity to submit evidence 
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and argument, the administrative judge found in a June 10, 2013 compliance 

initial decision that the agency was in compliance with the Board’s final order 

and she denied the petition for enforcement. C-2 ICF, Tab 17, Compliance Initial 

Decision (CID) at 4-9. 

¶5 The appellant petitions for review of the compliance initial decision in 

which he reiterates the argument he made below. 1

 PFR File, Tab 1 at 8-11. The 

agency responds in opposition to the petition for review and the appellant replies 

to the agency’s response. PFR File, Tabs 7, 8. 

ANALYSIS

¶6 As set forth above, the Board previously found that the agency properly 

could require the appellant to successfully complete a security background check 

because it was a requirement imposed on all selectees for the Auditor position 

and was a requirement for the position at the time of the initial veterans’ 

preference violation. 2

 See Gingery v. Department of Defense, MSPB Docket No. 

 

1 The appellant’s petition for review of the June 10, 2013 compliance initial decision 

was filed 48 days after the July 15, 2013 filing deadline and thus appears to be untimely 

filed, but the appellant asserts that he did not receive the compliance initial decision 

until August 2, 2013, and thus his petition for review was timely filed. Petition for 

Review (PFR) File, Tab 1 at 5; CID at 1, 9. In light of our decision in this matter, we 

need not resolve the timeliness of the appellant’s petition for review. See Vigil v. 

Department of the Army, 63 M.S.P.R. 384, 388 (1994) (finding that the Board did not 

need to decide an issue where the decision would not affect the outcome of the appeal).

2 In his petition for review, the appellant argues that the agency failed to show that all 

selectees were required to complete the background check process, PFR File, Tab 1

at 6-7, 11, but, in the 2012 decision addressing the appellant’s previous petition for 

enforcement, the Board specifically found that a security background check was a 

requirement imposed on all selectees for the Auditor position and was a requirement for 

the position at the time of the initial veterans’ preference violation. Gingery v. 

Department of Defense, MSPB Docket No. CH-3443-06-0582-X-1, Final Order at 11 

(Sept. 18, 2012) (under the law of the case doctrine, a decision on an issue of law made 

at one stage of a proceeding becomes a binding precedent to be followed in successive 

stages of the same litigation). 
4

CH-3443-06-0582-X-1, Final Order at 11 (Sept. 18, 2012). The record includes a 

statement made under penalty of perjury from an agency Security Officer 

explaining that information on the agency security form3 “must be true, accurate, 

up-to-date, and current as of the date that the form is completed.” C-2 ICF,

Tab 12 at 9. According to the agency Security Officer, this requirement is 

indicated on the form and in the instructions. Id. The essence of the appellant’s 

argument is that, because he should have been appointed to the Auditor position 

in 2006 but for the agency’s violation of his veterans’ preference rights, he is 

entitled to an exception to the agency’s usual pre-appointment process. 

¶7 Where the Board finds a violation of an individual’s veterans’ preference 

rights, the Board’s authority is to order the agency to restore the individual to the 

status quo ante; in other words, to the same position that he would have been in

had the veterans’ preference violation not occurred. Lodge v. Department of the 

Treasury, 107 M.S.P.R. 22, ¶ 16 (2007). Where, as here, the reconstruction of 

the hiring process shows that the appellant would have been selected but for the 

veterans’ preference violation, status quo ante relief means that the agency must 

offer the appellant the original position sought or, as near as possible, a 

substantially equivalent position. See Dow v. General Services Administration, 

117 M.S.P.R. 616, ¶ 15 (2012). 

¶8 Having met its obligation to offer the appellant in this matter the Auditor 

position he originally sought, we discern no reason that the agency may not 

subject the appellant to the same pre-appointment process as other employees. 

In Dow, for example, the Board held that the agency in that case was permitted to 

require a retroactively appointed individual to undergo the same suitability 

 

3 The agency refers to the form as a Standard Form 86, which is a questionnaire for 

national security positions. 
5

investigation as it required of all agency employees. 4 Id., ¶ 14. This holding is 

consistent with the well-established principle that status quo ante relief does not 

entitle an appellant to be placed in a better position than he would have enjoyed 

had the personnel action not occurred. See, e.g., Sink v. Department of Energy, 

110 M.S.P.R. 153, ¶ 19 (2008). Accordingly, the administrative judge correctly 

found that by offering the appellant an appropriate position and applying the 

generally applicable pre-appointment process, the agency was in compliance with 

the Board’s final order and properly denied the appellant’s petition 

for enforcement. 

ORDER

¶9 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the

United States Court of Appeals for the Federal Circuit. You must submit your 

request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

 

4 The Board made clear in Dow that the agency could not impose a background 

investigation requirement on an individual appointed retroactively to a time when such 

inquiries were not conducted for candidates for the position to which the individual was 

appointed. Dow, 117 M.S.P.R. 616, ¶¶ 12-13. That holding has no application to the 

instant case because, as discussed above, the background investigation requirement 

imposed on the appellant was consistent with the requirement imposed on all candidates 

for the Auditor position. 
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The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11. 

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.