Schoenrogge v. Department of Justice , 410 F. App'x 314 ( 2010 )

NOTE: This disposition is nonprecedential.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 Depart-
ment 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 Oppor-
tunities 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 vet-
eran 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 charac-
ter. The agency responded and filed declarations explain-
ing 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 qualifi-
cations 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 disqualifica-
tion 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 an-
nouncement, 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 candi-
dates . . . 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 veter-
ans’ 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. Schoen-
rogge’s VEOA claim, and none “create a genuine issue of
material fact regarding the issues pertinent to the ap-
peal.”
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 with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 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,” specifi-
cally 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 special-
ist.
Mr. Schoenrogge contends that the AJ improperly de-
termined 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 evi-
dence 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 credi-
ble 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 refer-
ral 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 univer-
sally 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 Uni-
formed Services Employment and Reemployment Rights
Act (“USERRA”), this court has held that
[T]he VEOA does not contain any language relat-
ing to a “hearing” comparable to the language in
USERRA that the plurality in Kirken-
dall . . . 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 perti-
nent 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 determi-
nations 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 Jus-
tice, 148 F. App’x 941 (Fed. Cir. 2005). The Board cor-
rectly 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 reason-
able 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 argu-
ments 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 preferen-
tial status as a veteran in accordance with the VEOA, we
affirm.
COSTS
No costs.