                 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
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
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
      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
