Charles L. Light v. Small Business Administration

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3120
CHARLES L. LIGHT,
Petitioner,
v.
SMALL BUSINESS ADMINISTRATION,
Respondent.
__________________________
DECIDED: October 10, 2006
__________________________
Before GAJARSA, LINN, and PROST, Circuit Judges.
PER CURIAM.
Charles L. Light (“Light”) petitions for review of the decision of the Administrative
Judge (“AJ”) that sustained his non-selection by the Small Business Association
(“Agency”) for the position of Attorney/Advisor in the Disaster Assistance Program,
Disaster Area Office 2 in Atlanta, Georgia. Light v. Small Bus. Admin., No. AT-0330-05-
0198-I-1 (M.S.P.B. Jul. 27, 2005) (“Initial Decision”). In Light’s appeal to the Merit
Systems Protection Board (“Board”), Light argued that the Agency violated his rights
under the Veterans Employment Opportunity Act of 1988 (“VEOA”). The Board rejected

-- 1 of 4 --

Light’s argument and concluded that the Agency’s decision not to hire Light did not
violate Light’s veterans’ preference rights. Light v. Small Bus. Admin., No. AT-0330-05-
0198-I-1 (M.S.P.B. Dec. 28, 2005) (“Final Order”). The AJ’s decision became the final
decision of the Board after the Board denied Light’s petition for review. Because the
decision of the Board is supported by substantial evidence, is not an abuse of
discretion, and does not otherwise contain reversible error, we affirm.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless
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. Chase-Baker v. Dep’t of
Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). The petitioner bears the burden of
establishing reversible error in reviewing a decision of an administrative agency such as
the Board. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Statutory construction is a question of law that we review de novo. James v. Santella,
328 F.3d 1374, 1377 (Fed. Cir. 2003).
The VEOA provides redress for a preference eligible veteran “who alleges that
an agency has violated . . . [his or her] rights under any statute or regulation relating to
veterans’ preference.” 5 U.S.C. § 3330(a)(1)(A). Under the VEOA, veterans “may not
be denied the opportunity to compete for vacant positions for which the agency making
the announcement will accept applications from individuals outside its own workforce
under merit promotion procedures.” 5 U.S.C. § 3304(f)(1). Section 3304(f) further
provides, “This subsection shall not be construed to confer an entitlement to veterans’
06-3120 2

-- 2 of 4 --

preference that is not otherwise required by law.” Id. § 3304(f)(3). 5 C.F.R. § 302.101
sets forth which positions are subject to the veterans’ preference appointment of
procedures and lists certain positions that are wholly exempt from veteran-preference
appointment procedures. Attorney positions fall within this exemption.
5 C.F.R. § 302.101(c)(9). For attorney positions, an agency need only “follow the
principle of veteran preference as far as administratively feasible . . . .” Id. § 302.101(c).
“[T]his means an agency must consider veteran status as a ‘positive factor’ in reviewing
applications.” Patterson v. Dep’t of Int., 424 F.3d 1151, 1159 (Fed. Cir. 2005).
The AJ found, and Light does not dispute, that the Agency was aware of Light’s
veteran status, recalled the problems that Light caused in his prior employment, and
informed Light that its decision not to hire Light was solely due to Light’s negative
employment history and his inability to work with others. Initial Decision, slip op. at 3.
Although the Agency did not expressly state in its October 6, 2004 letter to Light that it
considered his veteran status as a “positive factor” that was outweighed by the
Agency’s prior experience with Light, we presume that, in noting Light’s veteran status,
the Agency properly discharged its administrative duty to consider Light’s veteran status
as a “positive factor,” which in this case was outweighed by Light’s history with the
Agency. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (“The presumption
of regularity provides that, in the absence of clear evidence to the contrary, the court will
presume that public officers have properly discharged their official duties.”). Because
Light has not presented clear evidence sufficient to overcome the presumption of
regularity, we therefore agree with the Board that Light’s rights under the VEOA were
not violated.
06-3120 3

-- 3 of 4 --

We also agree that the Board lacked jurisdiction to entertain Light’s
discrimination claim. The Board lacks jurisdiction over a discrimination claim except
where it is accompanied by an adverse action claim over which the Board does have
jurisdiction. See 5 U.S.C. § 7702(a)(1); Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245
(Fed. Cir. 1991) (en banc). Non-selection for employment is not an independently
appealable action under 5 U.S.C. § 7702. See Prewitt v. Merit Sys. Prot. Bd., 133 F.3d
885, 886 (Fed. Cir. 1998). Because the Light’s discrimination claims are not otherwise
appealable, and because the provisions of VEOA give the Board no authority to
adjudicate the merits of any personnel action; rather, they authorize the Board only to
determine whether an agency has violated a statutory or regulatory provision relating to
veteran preference, the Board may not employ VEOA to attain jurisdiction over Light’s
discrimination claim. See 5 U.S.C. § 3330a(a)(1)(d); See Metzenbaum v. Gen. Servs.
Admin., 96 M.S.P.R. 104, ¶ 5 n.3 (M.S.P.B. 2004), aff’d, 122 Fed. Appx. 476 (Fed. Cir.
2005) (unpublished). Accordingly, because the Board has no authority to review, in a
VEOA appeal, his claim of discrimination, Light has failed to satisfy his burden of
showing that the Board has jurisdiction over his non-selection.
For the foregoing reasons, the Board’s decision is affirmed.
06-3120 4

-- 4 of 4 --