United States Court of Appeals 

for the Federal Circuit 

__________________________ 

STEPHEN W. GINGERY, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

__________________________ 

2012-3110 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CH3330090712-X-1. 

__________________________ 

Decided: October 5, 2012 

__________________________ 

STEPHEN W. GINGERY, of Macomb, Michigan, pro se. 

DEVIN A. WOLAK, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With him on 

the brief were STUART F. DELERY, Acting Assistant Attorney General, JEANNE E. DAVIDSON, Director, and KIRK T.

MANHARDT, Assistant Director. 

__________________________ 

Before NEWMAN, DYK, and PROST, Circuit Judges. 
ALONZO v. DVA 2

PROST, Circuit Judge. 

Stephen W. Gingery appeals the Merit Systems Protection Board’s (“MSPB” or “Board”) dismissal of his 

petition for enforcement of its earlier order that provided 

guidelines to the Department of Veterans Affairs (“VA”) to 

reconstruct the job selection process of which Mr. Gingery 

was part. Gingery v. Dep’t of Veterans Affairs, No. 

CH3330090712-X-1 (M.S.P.B. May 20, 2011). We affirm. 

BACKGROUND

In February 2009, the VA issued vacancy announcements for a GS-5/6 Accounting Technician position under 

its open competitive process and its merits promotion 

process. The agency accepted Mr. Gingery’s application 

for both vacancies, but the certificate of eligibles only 

included the name of a candidate internal to the agency. 

The VA selected that candidate for the job pursuant to a 

collective bargaining agreement that required the VA to 

consider filling employment vacancies internally before 

considering external applicants. Mr. Gingery appealed 

the selection to the Board, which found that the VA 

violated Mr. Gingery’s rights under the Veterans Employment Opportunity Act (“VEOA”), 5 U.S.C. § 3304(f), 

by following internal policies and thus failing to consider 

him for the position. The Board ordered the VA to reconstruct the hiring process such that Mr. Gingery and any 

other qualified preference eligible veteran could be considered. After two reconstructions that were appealed to 

and reversed by the Board, the Board gave the VA specific 

guidelines for how to reconstruct its selection process. 

Among those guidelines, the Board required the VA to 

provide a sworn statement regarding the process, explain 

the “incomplete” label on the selectee’s application, provide evidence it offered Mr. Gingery an interview, and 
3 ALONZO v. DVA

submit a statement explaining the rationale of its selection. 

On its third attempt at reconstruction, the VA selected the same internal candidate it had originally 

chosen. Mr. Gingery petitioned the Board to enforce its 

earlier order, alleging the VA failed to follow the prescribed guidelines. Before the Board, the VA submitted 

four sworn declarations from VA personnel who participated in the hiring process, addressing each of the guidelines specified by the Board. The Board found, based on 

the VA’s evidence, that Mr. Gingery was provided with 

the same opportunity to interview for the job and asked 

the same questions as the other candidates being considered. Furthermore, the Board accepted the VA’s rationale 

for selecting the candidate in lieu of Mr. Gingery—that 

the candidate’s prior experience at the VA gave her a 

familiarity with the accounting system that Mr. Gingery 

lacked. 

Mr. Gingery appeals the Board’s finding that the VA 

was in compliance resulting in the dismissal of his petition for enforcement as moot. 

DISCUSSION

The scope of review in an appeal from an MSPB decision is limited. We can only set aside a MSPB decision if 

it was “(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 Briggs v. Merit Sys. Prot. 

Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 
ALONZO v. DVA 4

Mr. Gingery makes several arguments for why the 

Board’s decision is wrong. First, he alleges that the 

Board’s reconstruction order conflicts with the VA’s 

internal policy of considering internal candidates first, 

apparently intending to challenge the VA’s policy favoring 

internal candidates. Yet, this is not a live issue before us 

because Mr. Gingery already prevailed on this issue 

before the Board in 2010, and no appeal was taken. Mr. 

Gingery admits as much in his brief, explaining that 

“remand is not actually necessary because this conflict 

doesn’t actually exist.” Appellant’s Br. 10. Second, Mr. 

Gingery argues that the final selection violated his VEOA 

rights because he did not receive a “bona fide selection.” 

He alleges that the selected candidate was the least 

qualified and that the VA did not comply with the Board’s 

specifications because it did not file a candidate scoring 

sheet. Yet, the VA submitted sworn declarations and 

statements explaining its selection process and explained 

that the candidate was selected over others, including Mr. 

Gingery, because she had prior experience at the VA that 

rendered her familiar with the accounting system in 

place. The Board’s reliance on this evidence to uphold the 

reconstruction result is not an abuse of discretion. To the 

extent that Mr. Gingery’s complaint is that he was not 

awarded the position despite his VEOA rights, he is 

mistaken that his status entitles him to the job itself; it 

only entitles him to a lawful selection process. Finally, 

Mr. Gingery appears to challenge the reconstruction 

process as an improper remedy under 5 U.S.C. § 3330c(a), 

which requires the MSPB to “order the agency to comply 

with” portions of the VOEA it violated. Yet, as Mr. Gingery indicates in his brief, this court recognized that 

reconstruction of the selection process is a proper means 

of complying with § 3330c(a) where it is uncertain 

whether the veteran would be selected for the position. 

Marshall v. Dep’t of Health & Human Servs., 587 F.3d 
5 ALONZO v. DVA

1310, 1317 (Fed. Cir. 2009); see Kirkendall v. Dep’t of the 

Army, 573 F.3d 1318, 1325 (Fed. Cir. 2009). Here, contrary to Mr. Gingery’s representations, it was uncertain 

whether he would have been selected for the position 

under the proper competitive selection process, thus it 

was proper to require the VA to complete a reconstruction 

of the selection process. 

Because the Board properly found the VA in compliance with its earlier decision and dismissed Mr. Gingery’s 

petition for enforcement as moot, we affirm. 

COSTS

Each party shall bear its own costs. 

AFFIRMED