Timothy M. Schultz v. Department of Veterans Affairs

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY M. SCHULTZ,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-2326
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-3330-17-0162-P-1.
______________________
Decided: May 12, 2025
______________________
T IMOTHY M. SCHULTZ , Murfreesboro, TN, pro se.
TATE NATHAN WALKER , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by R EGINALD
T HOMAS B LADES, JR ., B RIAN M. B OYNTON, P ATRICIA M.
MC CARTHY.
______________________
Before P ROST, REYNA , and STARK, Circuit Judges.
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SCHULTZ v. DVA 2
P ER C URIAM .
Timothy M. Schultz petitions for review of a Merit Sys-
tems Protection Board (“MSPB”) order denying his request
for various types of damages. Schultz v. Dep’t of Veterans
Affs., No. CH-3330-17-0162-P-1, 2024 WL 3466940
(M.S.P.B. July 18, 2024). For the reasons below, we affirm.
B ACKGROUND
Mr. Schultz is a veteran who served in the U.S. Army.
As of May 2015, Mr. Schultz was employed as a Medical
Support Assistant in Madison, Wisconsin. In July 2016,
Mr. Schultz applied for a Medical Support Assistant posi-
tion in Dubuque, Iowa. Mr. Schultz was not selected for
the position.
Thereafter, Mr. Schultz filed a veterans’ preference
complaint with the Department of Labor based on this non-
selection. The Department of Labor investigated the com-
plaint and found that the Department of Veterans Affairs
(“VA”) violated Mr. Schultz’s veterans’ preference when it
selected another candidate with no preference. See Schultz
v. Dep’t of Veterans Affs., No. CH-3330-17-0162-P-1, 2022
WL 17736082 (M.S.P.B. Dec. 16, 2022) (“Decision”);
Resp’t’s Br. 4. “In remediation, the agency subsequently
canceled the vacancy announcement, restored the selected
employee to his previous position within the agency, and
informed [Mr. Schultz] it would re-advertise the position
under a new vacancy announcement.” Decision, 2022 WL
17736082. Mr. Schultz did not apply for the new vacancy.
Instead, Mr. Schultz appealed to the MSPB, alleging
that the VA had violated his right to compete under the
Veterans Employment Opportunities Act of 1998
(“VEOA”). The administrative judge initially denied Mr.
Schultz’s request for corrective action, but on appeal to the
full MSPB, the MSPB reversed that determination. “It
added that, because it was not clear whether [Mr. Schultz]
would have been selected absent the violation, the remedy
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SCHULTZ v. DVA 3
under VEOA was to reconstruct the selection process for
the position, which the agency failed to do properly. . . .
The [MSPB] clarified that proper reconstruction of the se-
lection required the agency to conduct an actual selection
process based on the same circumstances surrounding the
original faulty selection.” Id. (internal citations omitted);
see also Schultz v. Dep’t of Veterans Affs., No. CH-3330-17-
0162-P-1, 2022 WL 2903382, at *2 (M.S.P.B. July 22, 2022).
The MSPB then ordered the VA to reconstruct the hiring
process for the vacancy. The reconstruction was ultimately
not carried out because Mr. Schultz declined to participate
in the process. Decision, 2022 WL 17736082 (“Because [Mr.
Schultz] did not express an interest in a position, the
agency did not proceed with the reconstruction process.”);
Resp’t’s Br. 6 (“Mr. Schultz’s attorney indicated that Mr.
Schultz did not want to participate in the reconstruction
process . . . .”).
“On September 23, 2022, [Mr. Schultz] filed a petition
for lost wages, benefits, and liquidated damages under the
[VEOA].” Decision, 2022 WL 17736082. The administra-
tive judge denied this petition. Id. Mr. Schultz then filed
a petition for review with the full MSPB, which affirmed
the administrative judge’s initial decision. Schultz, 2024
WL 3466940, at *1.1
Mr. Schultz timely petitioned this court for review of
the MSPB’s denial of lost wages and other damages. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
1 The full MSPB effectively adopted the administra-
tive judge’s initial decision in its final decision. See
Schultz, 2024 WL 3466940, at *1. Therefore, we primarily
cite to the initial decision in this opinion for the MSPB’s
reasons for denial of damages.
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SCHULTZ v. DVA 4
DISCUSSION
We must affirm the MSPB’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
“If the [MSPB] . . . determines that an agency has vio-
lated a right described in section 3330a, the [MSPB] . . .
shall order the agency to comply with such provisions and
award compensation for any loss of wages or benefits suf-
fered by the individual by reason of the violation involved.”
5 U.S.C. § 3330c(a). As the MSPB explained, § 3330c(a)
has two requirements: “(1) the agency must have violated
the appellant’s veterans’ preference rights; and (2) the ap-
pellant must have lost wages or benefits as a result of the
violation.” Decision, 2022 WL 17736082. The MSPB
agreed that the first requirement was met here. As to the
second requirement, the MSPB explained that “the appel-
lant must have lost wages or benefits as a result of the vio-
lation,” id. (emphasis in original), and that “an individual
may be entitled to lost wages or compensation for lost ben-
efits only if it is determined that he or she would have been
selected by the agency if the violation had not occurred,” id.
(emphasis added). In Mr. Schultz’s case, because he de-
cided not to participate in the reconstruction process, the
MSPB concluded that Mr. Schultz had “failed to establish
he would have been selected for the vacancy.” Id. We
agree.
“If it is established that it was reasonably likely that
the veteran would have received the position but for the
agency’s error or misfeasance, then payment of lost wages
and benefits would be appropriate.” Grandberry v. Dep’t of
Homeland Sec., 406 F. App’x 472, 475 (Fed. Cir. 2010)
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SCHULTZ v. DVA 5
(emphasis added).2 Here, because Mr. Schultz decided not
to participate in the reconstruction process, it is unknown
whether he would have received the position but for the vi-
olation. Therefore, we agree with the MSPB that Mr.
Schultz has not shown that he lost wages “by reason of the
violation involved.” § 3330c(a).
As to liquidated damages, § 3330c(a) states: “If the
Board or court determines that such violation was willful,
it shall award an amount equal to backpay as liquidated
damages.” Id. Mr. Schultz does not appear to challenge
the denial of liquidated damages. And in any event, he has
presented no evidence of willfulness as required by the
statute. Therefore, even if Mr. Schultz’s petition for review
is read to include a request for liquidated damages, we
agree with the MSPB that he has not demonstrated enti-
tlement to as much here. Decision, 2022 WL 17736082, at
n.3.
Mr. Schultz also requests potential other damages, in-
cluding mileage and time, among other things. The MSPB
denied Mr. Schultz’s request for additional damages be-
cause it “is not authorized to award consequential dam-
ages, out-of-pocket expenses, or front pay under VEOA.”
Decision, 2022 WL 17736082. On appeal, Mr. Schultz has
not presented any authority that the MSPB is able to pro-
vide such a remedy or that the MSPB erred in its legal con-
clusion on this point. Therefore, we agree with the MSPB
2 Grandberry’s conclusion in this regard was made
with respect to 38 U.S.C. § 4324(c)(2), but Grandberry ex-
plained that § 4324(c)(2) and § 3330c (at issue in this case)
“contain virtually identical remedy provisions.” 406 F.
App’x at 474. Indeed, Grandberry looked to Marshall v.
Department of Health and Human Services, 587 F.3d 1310
(Fed. Cir. 2009), a § 3330c case, for guidance on how to in-
terpret § 4324(c)(2). For this reason, under the facts before
us, we find Grandberry’s conclusion persuasive here.
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SCHULTZ v. DVA 6
that Mr. Schultz has “failed to establish an entitlement to
these additional damages.” Id.
C ONCLUSION
We have considered Mr. Schultz’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the MSPB’s denial of damages.
AFFIRMED
C OSTS
No costs.
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