NOTE: This disposition is nonprecedential.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 General Counsel, Merit Systems Protection Board, of Washington, 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 General 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 interviewed 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 appeal at the Board. Id. at 16. A day later, the administrative 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 October 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 issued an initial decision dismissing Gingery’s claim because 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 administrative judge noted that the record unequivocally demonstrated that Gingery applied for the position, that he was 

one of the top three referrals, that he was given an interview, 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 administrative 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 position; his name was among those forwarded to the selecting 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 position.” 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 circumscribed 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 jurisdiction 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 Department 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, therefore, 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 jurisdiction. Gingery contends that he made numerous nonfrivolous 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 jurisdiction 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, because 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 insufficiently 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 guarantee 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 establish 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 compete. 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-preferenceeligible 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 nonselection 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