Sherrod Lewis Bumgardner, Jr. v. Department of the Navy

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERROD LEWIS BUMGARDNER, JR.,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2023-1713
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-22-0043-I-1.
______________________
Decided: May 13, 2024
______________________
T HOMAS F RITZ M UTHER, J R., Minahan Muther Klinger,
PC, Denver, CO, for petitioner.
D ANIEL BERTONI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , CORINNE ANNE N IOSI.
______________________
Before REYNA, T ARANTO, and HUGHES , Circuit Judges.
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BUMGARDNER v. NAVY 2
P ER CURIAM .
Sherrod Lewis Bumgardner, Jr., is a disabled veteran
who qualifies for a 10-point preference relevant to certain
hiring contexts. See 5 U.S.C. §§ 2108, 3309. When he ap-
plied for an excepted-service attorney position in the De-
partment of the Navy, Office of the General Counsel (OGC),
he was not selected. Mr. Bumgardner unsuccessfully
sought relief from the Department of Labor, asserting a vi-
olation of the Veterans Employment Opportunities Act of
1998 (VEOA), Pub. L. No. 105-339, 112 Stat. 3182 (codified
as amended in part at 5 U.S.C. § 3330a). Mr. Bumgardner
then appealed to the Merit Systems Protection Board,
which decided that the Navy did not violate his veteran-
preference rights. J.A. 1–14; Bumgardner v. Department
of the Navy, No. DC-3330-22-0043-I-1, 2022 WL 595769
(Feb. 23, 2022). We now affirm the Board’s decision.
I
In January 2021, the Navy’s OGC announced an antic-
ipated vacancy in the Office of the Assistant General Coun-
sel (National Security Law) for an attorney to serve in the
position of Counsel, Joint Force Command Norfolk. The
announcement noted that the position was an excepted-
service attorney position. J.A. 38. As a result, the hiring
process was generally not subject to the formal veteran-
preference rating system that is based on the Veterans’
Preference Act of 1944 (VPA), Pub. L. No 78–359, 58 Stat.
387 (codified as amended in part at 5 U.S.C. §§ 3309–20).
See 5 U.S.C. § 3320; 5 C.F.R. § 302.101; Jarrard v. Depart-
ment of Justice, 669 F.3d 1320, 1322–23 (Fed. Cir. 2012).
OGC did, however, have an internal policy of giving
veterans certain preferences in excepted-service attorney
selection. This policy had two components. First, OGC
deemed veteran-preference eligibility a positive factor at
all stages of review, meaning that at each candidate-elimi-
nating step in the review process, OGC would continue to
consider borderline candidates if they were preference-
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BUMGARDNER v. NAVY 3
eligible veterans. J.A. 41. Second, when making final se-
lections, OGC would offer a position to a preference-eligible
veteran over a non-preference-eligible candidate if, based
on all relevant considerations, the two were equally quali-
fied for the position; and if multiple final candidates were
preference eligible, OGC would offer the position first to
disabled veterans within the 10-point-preference group
(with others in that group next in line), though OGC would
not otherwise use a numerical scoring system for attorney
selection. J.A. 41–42.
Mr. Bumgardner applied for the counsel position as an
external candidate on January 21, 2021. Mr. Bumgardner
said in his application that he is a disabled veteran who
qualifies for a 10-point preference under the preference
system. J.A. 44, 63–67. An OGC selection panel, reviewing
the applications for the position, determined that Mr. Bum-
gardner and one other candidate, T.R., met the minimum
qualifications for the position and were significantly better
qualified than all the other candidates. Like Mr. Bumgard-
ner, T.R. is a disabled veteran who qualifies for a 10-point
preference (and so stated in his application). J.A. 44, 246–
50. But unlike Mr. Bumgardner, T.R. was already an OGC
attorney and was treated as an internal candidate. J.A. 44.
After interviewing both Mr. Bumgardner and T.R., the se-
lection panel unanimously determined that, while both
candidates could do the job, T.R. was the better candidate.
J.A. 46–47. On April 2, 2021, OGC selected T.R. for the
counsel position based on the recommendation of the panel.
J.A. 254.
On August 16, 2021, Mr. Bumgardner filed a complaint
with Labor, asserting a claim under the VEOA. After an
investigation of Mr. Bumgardner’s complaint, Labor con-
cluded that the Navy had not violated Mr. Bumgardner’s
veteran-preference rights because it had selected the per-
son it believed had the most experience for the position and
performed better during the interview and because the se-
lection process for excepted-service attorneys is not subject
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BUMGARDNER v. NAVY 4
to the formal veteran-preference rating system. J.A. 85–
86. Mr. Bumgardner appealed Labor’s decision to the
Board.
On February 23, 2022, the Board administrative judge
assigned to the appeal issued an initial decision, which de-
termined that the Navy did not violate Mr. Bumgardner’s
veteran-preference rights. In particular, the administra-
tive judge determined that “as a matter of law, [the Navy]
could not have violated [Mr. Bumgardner’s] veteran[-]pref-
erence rights when it selected T.R. for the position because
[Mr. Bumgardner] and T.R. [were] entitled to the same ex-
act statutory benefits under the VEOA and agency policy.”
J.A. 11. The Board then denied Mr. Bumgardner’s petition
for review and affirmed the administrative judge’s initial
decision, which thus became the final decision of the Board
on January 31, 2023. J.A. 23–24.
Mr. Bumgardner timely appealed. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
II
Our scope of review of decisions by the Board is limited
by statute. We must affirm a decision by the Board unless
it is “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise 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 Brown v. Department of Veterans Af-
fairs, 247 F.3d 1222, 1223 (Fed. Cir. 2001). Additionally,
we review the Board’s determination that an appellant is
not entitled to a hearing for an abuse of discretion. Dean
v. Department of Labor, 808 F.3d 497, 504 (Fed. Cir. 2015)
(citing 5 U.S.C. § 7703(c)). A decision on the merits without
a hearing is appropriate when there is no genuine dispute
of material fact and one party must prevail as a matter of
law. Id. (citing Waters-Lindo v. Department of Defense, 112
M.S.P.R. 1, ¶ 5 (2009); 5 U.S.C. § 3330a(d)(1)).
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BUMGARDNER v. NAVY 5
Both Mr. Bumgardner and T.R. are disabled veterans
who qualify for a 10-point preference, and thus neither was
entitled to a greater statutory benefit than the other under
the VEOA and agency policy. For that reason, and because
the selection panel determined that T.R. overall was the
better candidate, we agree with the Board that the Navy
could not have violated Mr. Bumgardner’s veteran-prefer-
ence rights when it selected T.R. for the counsel position.
Given that there is no dispute of material fact underlying
that determination, the Board did not abuse its discretion
by denying Mr. Bumgardner a full hearing and deciding
the appeal as a matter of law based on the written record.
Accordingly, we affirm.
A
Attorney selection within the excepted service is ex-
empt from the formal veteran-preference rating system,
and agencies need only follow the principle of veteran pref-
erence as far as administratively feasible. See 5 U.S.C.
§ 3320 (requiring excepted-service selection to be in “the
same manner and under the same conditions” as competi-
tive-service selection); 5 C.F.R. § 302.101 (requiring attor-
ney selection in the excepted service only to “follow the
principle of veteran preference as far as administratively
feasible”); see also Patterson v. Department of the Interior,
424 F.3d 1151, 1157–59 (Fed. Cir. 2005) (determining that
the Office of Personnel Management acted within its dele-
gated authority in interpreting 5 U.S.C. § 3320 and in
promulgating 5 C.F.R. § 302.101). We have held that an
agency’s consideration of a candidate’s veteran status as a
“positive factor” is sufficient to find no violation of that can-
didate’s veteran-preference rights. Id. at 1160; see Jar-
rard, 669 F.3d at 1323. Moreover, in the absence of clear
evidence to the contrary, we presume that public officers
have properly discharged their official duties. See Miley v.
Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004).
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BUMGARDNER v. NAVY 6
B
Both Mr. Bumgardner and T.R. are disabled veterans
who qualify for a 10-point preference, entitling them to the
exact same veteran-preference benefits under the relevant
law and agency policy. And both, in their applications, sub-
mitted documentation to confirm their status in that re-
gard. On that basis, the Board concluded that the Navy’s
decision to give the position to T.R. as “the better candi-
date,” J.A. 46–47, could not have violated Mr. Bumgard-
ner’s veteran-preference rights. We see no error in that
conclusion.
Mr. Bumgardner argues that he and T.R. are not enti-
tled to the exact same veteran-preference benefits, because
Mr. Bumgardner was an external candidate for the counsel
position entitled to veteran preference, while T.R. was an
internal candidate and, as such, was not entitled to veteran
preference. Bumgardner Opening Br. at 11–16. We see no
such distinction under either the OGC policy or the rele-
vant statutory and regulatory provisions.
Regarding OGC’s internal policy on veteran preference
in excepted-service attorney selection: Nothing in that pol-
icy compels different treatment of internal and external
preference-eligible veteran candidates. The internal policy
states only that OGC deems veteran-preference eligibility
to be a positive factor in attorney selection at all stages of
the review process and that, when making final selections,
if all relevant considerations for the position are deemed
equal, OGC will offer the position to a preference-eligible
veteran as opposed to an equally well-qualified non-prefer-
ence-eligible candidate. J.A. 41–42. That policy does not
distinguish internal from external candidates having the
same preference-eligible status.
It is true that the selection panel stated that “[o]nly one
candidate, [Mr. Bumgardner] was deemed preference eligi-
ble and was given a positive factor,” and “[t]he second can-
didate, [T.R.], is a current OGC attorney and is treated as
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BUMGARDNER v. NAVY 7
an internal selection; therefore, veteran[] preference does
not apply.” J.A. 44. But the premise that T.R. was not
preference eligible (at the same 10-point level) is simply a
mistake; it is flatly contradicted by the record evidence.
See J.A. 246–50, 251. The Board determined that both Mr.
Bumgardner and T.R. were preference eligible. J.A. 10.
And there is no evidence that could undermine that deter-
mination. Accordingly, we see no basis in the agency policy
for requiring OGC, in the selection process at issue here, to
have recognized Mr. Bumgardner’s preference-eligibility
status but disregarded the same status for T.R.
Regarding the relevant statutory and regulatory provi-
sions: Mr. Bumgardner does not identify anything in the
applicable statutes and regulations, see 5 U.S.C. § 3320; 5
C.F.R. § 302.101, that calls for different treatment of inter-
nal and external preference-eligible veteran candidates for
the same excepted-service attorney position. Nor has Mr.
Bumgardner identified any precedent of this court calling
for such different treatment. See Bumgardner Opening Br.
at 11–16.
Even in competitive-service selection, we have never
ruled that veteran-preference benefits apply differently to
internal and external preference-eligible veteran candi-
dates vying for the same position. What we have done, as
Mr. Bumgardner points out, Bumgardner Opening Br. at
11–13, is to distinguish, in the context of competitive-ser-
vice selection, between veteran-preference benefits during
initial appointment to the competitive service and subse-
quent transfer or promotion. Thus, in Kerner v. Depart-
ment of the Interior, we said that “[c]ourts have interpreted
the [VPA] to give preference in a veteran’s initial appoint-
ment to the federal civil service, but not to an employee’s
transfer or other intra-agency movement, such as promo-
tions,” and we also said that “[t]he text of the VEOA shows
that it is intended to assist veterans in gaining access to
federal civil service employment, not to give veterans pref-
erence in merit promotions.” 778 F.3d 1336, 1338 (Fed. Cir.
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BUMGARDNER v. NAVY 8
2015). In other words, we have differentiated, in competi-
tive-service selection, between open-competition selection,
which “generally is used for employees seeking to join the
competitive service and often is used for reviewing appli-
cants outside the agency,” and merit-promotion appoint-
ment, which is “used when the position is to be filled by an
employee of the agency or by an applicant from outside the
agency who has ‘status’ in the competitive service.” Joseph
v. Federal Trade Commission, 505 F.3d 1380, 1381–82
(Fed. Cir. 2007). But differentiating between two distinct
types of competitive-service selection to fill vacancies—
open-competition selection and merit-promotion selec-
tion—is not the same as differentiating between internal
and external preference-eligible veteran candidates for the
same position.
We also have recognized, as Mr. Bumgardner points
out, Bumgardner Opening Br. at 11–13, that in competi-
tive-service merit-promotion selection in particular, agen-
cies need not grant to internal preference-eligible veteran
candidates each of the veteran-preference benefits that
would have been available to those candidates in competi-
tive-service open-competition selection. See Kerner, 778
F.3d at 1339 (not granting an internal preference-eligible
veteran candidate certain veteran-preference benefits).
But the agencies also need not grant those benefits to ex-
ternal preference-eligible veteran candidates. See Joseph,
505 F.3d at 1383–85 (not granting an external preference-
eligible veteran candidate certain veteran-preference ben-
efits). Moreover, the only benefit to which external prefer-
ence-eligible veteran candidates in competitive-service
merit-promotion selection are entitled—the opportunity to
compete for vacant positions—is one to which internal pref-
erence-eligible veteran candidates are already entitled.
See 5 U.S.C. § 3304 (reciting “[p]reference eligibles . . . may
not be denied the opportunity to compete for vacant posi-
tions” but noting “[t]his subsection shall not be construed
to confer an entitlement to veteran[] preference that is not
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BUMGARDNER v. NAVY 9
otherwise required by law”); see also Joseph, 505 F.3d at
1382; Abell v. Department of the Navy, 343 F.3d 1378,
1383–85 (Fed. Cir. 2003).
There is, in short, no persuasive support for Mr. Bum-
gardner’s argument that the Navy was required, when
faced with two candidates (like him and T.R.) having the
same preference-eligible status, to deny the benefit of that
status to the internal candidate while giving the benefit of
that status to the external candidate. We therefore see no
basis for setting aside the Board’s conclusion that no viola-
tion was present when the Navy, considering two candi-
dates equal in status regarding preference eligibility, chose
the one better qualified for the job.
III
We have considered Mr. Bumgardner’s remaining ar-
guments and find them unpersuasive. For the foregoing
reasons, we affirm the decision of the Merit Systems Pro-
tection Board.
The parties shall bear their own costs.
AFFIRMED
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