  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 Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney 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 Pro-
tection 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 announce-
ments 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 Em-
ployment 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 recon-
struct the hiring process such that Mr. Gingery and any
other qualified preference eligible veteran could be con-
sidered. 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, pro-
vide evidence it offered Mr. Gingery an interview, and
3                                              ALONZO   v. DVA


submit a statement explaining the rationale of its selec-
tion.

    On its third attempt at reconstruction, the VA se-
lected 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 pre-
scribed guidelines. Before the Board, the VA submitted
four sworn declarations from VA personnel who partici-
pated in the hiring process, addressing each of the guide-
lines 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 consid-
ered. 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 peti-
tion for enforcement as moot.

                        DISCUSSION

    The scope of review in an appeal from an MSPB deci-
sion 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 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); 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. Gin-
gery 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, con-
trary 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 compli-
ance 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
