NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

TODD SCHOENROGGE, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

__________________________ 

2010-3168 

__________________________ 

Petition for review of the Merit Systems Protection 

Board decision in case no. PH315H090360-I-1. 

___________________________ 

Decided: December 8, 2010 

___________________________ 

TODD J. SCHOENROGGE, of St. Francis, Kansas, pro se. 

MICHAEL P. GOODMAN, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and BRIAN M.

SIMKIN, Assistant Director. 

__________________________ 
SCHOENROGGE v. JUSTICE 2

Before BRYSON, GAJARSA, and LINN, Circuit Judges. 

PER CURIAM. 

This is an appeal from the final order of the Merit 

Systems Protection Board (“MSPB” or “Board”) denying 

the petition for review of the action in Schoenrogge v. 

Dep’t of Justice, Docket No. DE-3330-10-0050-I-1 

(M.S.P.B. July 29, 2010), making the initial decision of 

the Administrative Judge (“AJ”) final, except as modified 

by the Board’s final order. Because we agree that Mr. 

Schoenrogge was properly afforded preferential status as 

a veteran pursuant to the Veterans Employment Opportunities Act (“VEOA”), that he did not meet the Board’s 

standard for establishing a claim of bias, and that there is 

no basis for reopening his removal appeal, we affirm. 

BACKGROUND

A. Statement of Facts 

Mr. Schoenrogge is a ten-point preference eligible veteran as a result of his non-compensable, service-connected 

disability. He applied for two Legal Assistant positions 

with the Executive Office for Immigration Review in Eloy, 

Arizona (“the agency”), which were posted under both a 

merit promotion (EOIR-09-0040-MP) and a competitive 

promotion (EOIR-09-0040-DEU) announcement. Upon 

closing of the time period for applying for those positions, 

a human resources management specialist prepared a 

referral list for each vacancy comprised of the qualified 

applicants and forwarded those lists to the selecting 

official. Both lists from which selectees were chosen 

included Mr. Schoenrogge among the listed candidates. 

The selecting official chose two individuals not including 

Mr. Schoenrogge from those lists. 

As a result, Mr. Schoenrogge filed a VEOA complaint 

with the Department of Labor on September 11, 2009. 
3 SCHOENROGGE v. JUSTICE

After investigating the complaint, the Department of 

Labor found “no violation of any laws relating to veterans’ 

preference.” 

B. Course of Proceedings Below 

On November 2, 2009, Mr. Schoenrogge appealed to 

the MSPB alleging that the agency violated his veterans’ 

preference rights regarding his application for two Legal 

Assistant positions. Mr. Schoenrogge submitted a request 

for a hearing in which he outlined his qualifications for 

the positions and attacked the selecting official’s character. The agency responded and filed declarations explaining its compliance with veterans’ preference procedures. 

The AJ issued an order setting a date to close the record 

and ordered the agency to submit the referral lists. The 

AJ noted that the agency’s submissions demonstrated 

compliance with veterans’ preference procedures and 

stated “it appear[s] a hearing may not be necessary.” 

After the agency submitted the referral lists, Mr. 

Schoenrogge filed a motion for interlocutory appeal to 

challenge the Board’s denial of a hearing. In that motion, 

Mr. Schoenrogge accused the selecting official of racism 

and asserted that a hearing was necessary for him to 

prove that his “applications were not evaluated correctly 

without bias and that the Agency intentionally failed to 

credit [his] full range of knowledge, skills, abilities and 

experience.” Mr. Schoenrogge then submitted a motion 

for directed verdict based on his qualifications and a 

supplementation of the record stating that those qualifications were not considered. 

Mr. Schoenrogge also complained that the agency had 

not submitted certain referral lists for the available 

positions, which were limited to the GS-6 level. Mr. 

Schoenrogge later obtained those referral lists from the 

agency and added them to the record. He also submitted 
SCHOENROGGE v. JUSTICE 4

affidavits alleging that the selecting official had not 

selected from those referral lists limited to GS-6 level 

candidates. Premised upon the submitted affidavits, Mr. 

Schoenrogge accused the selecting official and the human 

resources management specialist of perjury by providing 

contradictory testimony. Moreover, he challenged the 

qualifications of one of the individuals selected, claiming 

she was not disabled. 

The AJ reopened the record to consider whether there 

was evidence that the individual selected was disabled. 

The agency responded by submitting a rating letter from 

the Department of Veterans Affairs (“VA”) stating that 

the individual selected had a thirty percent disability 

rating. Mr. Schoenrogge in response asserted that the 

individual selected had not submitted a Standard Form 

15 (“SF-15”) supporting her disability, thus alleging that 

the individual had committed fraud by claiming to be 

disabled and referring the alleged fraud to the VA. Mr. 

Schoenrogge also alleged that the selectee was chosen 

because of improper behavior with the selecting official. 

Finally, Mr. Schoenrogge moved for the disqualification of the AJ and the reopening of the Board’s decision 

that removed Mr. Schoenrogge from Federal Service in 

2003. 

Without a hearing, the AJ reviewed and considered 

all of Mr. Schoenrogge’s VEOA allegations. The AJ 

concluded that the first Legal Assistant position announcement, posted under EOIR-09-0040-MP, was filled 

under merit promotion procedures. The AJ noted that a 

veteran competing for a merit promotion competition is 

entitled only to the right to compete, not to ranking 

preferences. Joseph v. Fed. Trade Comm’n, 505 F.3d 

1380, 1382 (Fed. Cir. 2007). Because Mr. Schoenrogge’s 

name appeared on the referral list from which the select-
5 SCHOENROGGE v. JUSTICE

ing official selected a candidate, the AJ concluded that 

“the agency did not violate the appellant’s rights under 

the VEOA.” 

Regarding the second Legal Assistant position posted 

under EOIR-09-0040-DEIU, the AJ described how the 

competitive process was followed and concluded that “the 

agency properly ranked and considered the candidates . . . in accordance with veterans’ preference rules.” 

With respect to both positions, the AJ concluded that “the 

appellant has failed to show that the agency violated his 

rights under any statute or regulation relating to veterans’ preference with respect to either of the two Legal 

Assistant positions at issue.” 

The AJ also addressed all other allegations, none of 

which was determined to be material to Mr. Schoenrogge’s VEOA claim, and none “create a genuine issue of 

material fact regarding the issues pertinent to the appeal.” 

With respect to Mr. Schoenrogge’s only point relevant 

to the VEOA claim, the disability qualification of the 

selectee, the AJ concluded that “[o]ther than his bare and 

unsupported assertions, the appellant presented nothing 

suggesting that [the selectee] . . . is not a 30% disabled 

veteran.” The AJ explained that “[b]ecause the selectee 

and the appellant are in the same preference category, 

the appellant has no greater preference rights . . . [and] 

has not established a violation of his rights relating to 

veterans’ preference.” The AJ noted that to the extent 

Mr. Schoenrogge was claiming the agency’s decision not to 

select him was a prohibited personnel practice, the MSPB 

lacked jurisdiction to consider such allegations. 

Mr. Schoenrogge filed a petition for review before the 

full Board. The Board denied the petition for review but 

modified the initial decision by holding that petitioner 
SCHOENROGGE v. JUSTICE 6

had not met the Board’s standard for establishing a claim 

of bias. Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362-

63 (Fed. Cir. 2002). The Board also affirmed the AJ’s 

conclusion that Mr. Schoenrogge “provided no support for 

his assertion that . . . [the selectee] is not a disabled 

veteran.” Additionally, it denied Mr. Schoenrogge’s 

request to reopen the case related to his 2003 removal. 

This appeal followed. We have jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9). 

DISCUSSION

This court may reverse a decision of the MSPB only if 

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); Dickey v. Office of Pers. Mgmt., 

419 F.3d 1336, 1339 (Fed. Cir. 2005). 

Mr. Schoenrogge’s first contention is that he “was not 

provided full credit for all . . . [his] experience,” specifically alleging that “the record shows my application was 

never reviewed by agency human resources personnel.” 

However, the AJ found that a human resources specialist 

prepared referral lists containing Mr. Schoenrogge’s name 

and forwarded those lists to the selecting official for 

review. This finding is supported by substantial evidence, 

as the human resources specialist submitted an affidavit 

stating that she reviewed the applications and forwarded 

them to the selecting official. Furthermore, the selecting 

official also submitted an affidavit stating she received 

the lists from the human resources management specialist. 

Mr. Schoenrogge contends that the AJ improperly determined that the selected individual was a disabled 

veteran, alleging that the selectee in question is not 
7 SCHOENROGGE v. JUSTICE

disabled. He made several allegations regarding the 

disability and character of the selected individual, but 

these were considered by the AJ and found to be without 

merit. 

Mr. Schoenrogge also asserts that the AJ ignored evidence of alleged inconsistencies in witness testimony 

related to the number of referral lists that were created in 

this case. However, the AJ explained that “[a]lthough the 

appellant believes the affidavits submitted are not credible because they are inconsistent, I find that none of the 

alleged inconsistencies are material to the outcome of the 

appeal.” Further, the AJ found that the additional referral lists are irrelevant to appellant’s claim because Mr. 

Schoenrogge’s name was included on the lists from which 

both selectees were chosen. Thus, the AJ considered the 

alleged inconsistency in witness testimony and correctly 

concluded that it is immaterial to Mr. Schoenrogge’s 

VEOA claim. 

Mr. Schoenrogge additionally argues that the AJ 

failed to consider his allegations involving the allegedly 

racist and criminal character of the selecting official. 

However, the AJ correctly explained that the MSPB does 

not have jurisdiction to consider an agency’s alleged 

violation of prohibited personnel practices. Ruffin v. Dep’t 

of Treasury, 89 M.S.P.R. 396, 400 (2001) (“The provisions 

of VEOA give the Board no authority to adjudicate the 

merits of any personnel action.”). 

Mr. Schoenrogge’s only legal argument concerning his 

non-selection is that the AJ denied him a hearing under 5 

U.S.C. § 7701(a)(1) “even though the record proves that 

there are genuine issues of material fact in dispute.” This 

court has held that the provisions of § 7701 do not universally apply whenever the Board has jurisdiction over an 

appeal: “absent a reference to 5 U.S.C. § 7701 in the 
SCHOENROGGE v. JUSTICE 8

statute giving rise to the right of action . . . some of its 

guidelines, whether procedural or substantive, may apply 

to an action without invoking all of them.” Kirkendall v. 

Dep’t of Army, 479 F.3d 830, 846 (Fed. Cir. 2007) (citing 

Lindahl v. Office of Pers. Mgmt., 776 F.2d 276 (Fed. Cir. 

1985)). Unlike a claimant filing appeal under the Uniformed Services Employment and Reemployment Rights 

Act (“USERRA”), this court has held that 

[T]he VEOA does not contain any language relating to a “hearing” comparable to the language in 

USERRA that the plurality in Kirkendall . . . relied upon to find an unconditional right 

to a hearing in a USERRA appeal. Compare 5 

U.S.C. §§ 3330a-3330c with 38 U.S.C. § 4324(c)(1). 

Accordingly, the Board has the authority to decide 

a VEOA appeal on the merits, without a hearing, 

where there is no genuine dispute of material fact 

and one party must prevail as a matter of law. 

Haasz v. Dep’t of Veterans Affairs, 108 M.S.P.R. 349, 353 

(2008) (citations omitted). Mr. Schoenrogge does not 

dispute any facts relevant to his VEOA claim. The AJ 

determined that the request for a hearing was to question 

the selecting official and selectee about issues not pertinent to the merits of the selection process. It was not 

error for the AJ to deny Mr. Schoenrogge a hearing. 

On limited review the full Board considered Mr. 

Schoenrogge’s arguments that the AJ was biased against 

him and that the Board should reopen its earlier decision 

removing him in 2003. Because Mr. Schoenrogge’s only 

complaints about the AJ relate to her findings of fact and 

legal rulings, the Board correctly held that such determinations related to the case being adjudicated do not rise to 

the level of bias. Liteky v. United States, 510 U.S. 540, 

555 (1994) (citation omitted) (explaining that “judicial 
9 SCHOENROGGE v. JUSTICE

rulings alone almost never constitute a valid basis for a 

bias or partiality motion”). 

Lastly, Mr. Schoenrogge sought to reopen a case that 

this court decided in 2005. Schoenrogge v. Dep’t of Justice, 148 F. App’x 941 (Fed. Cir. 2005). The Board correctly held that reopening of the earlier case is not 

warranted because there was no basis to reopen that 

earlier, unrelated appeal. The “general rule is that any 

reopening should be obtained within a short and reasonable time period, measured in weeks, not years.” Brewer 

v. Office of Pers. Mgmt., 75 M.S.P.R. 163, 169 (1997). 

We have considered Mr. Schoenrogge’s other arguments and found them to be without merit. Because there 

was substantial evidence for the AJ to conclude that the 

agency properly afforded Mr. Schoenrogge with preferential status as a veteran in accordance with the VEOA, we 

affirm. 

COSTS

No costs.