             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
                                       05-3169

                                 DAVID J. DICKMAN,

                                               Petitioner,

                                          v.

                        DEPARTMENT OF TRANSPORTATION,

                                               Respondent.

                          _______________________

                          DECIDED: August 10, 2005
                          _______________________

Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.

PER CURIAM.

      David J. Dickman (“Dickman”) appeals the Merit Systems Protection Board’s

(“Board”) decision denying his petition for remedial action with regard to veterans’

preference rights. Dickman v. Dept of Transp. No. CH-3443-04-0161-I-1 (M.S.P.B. July

26, 2004). We affirm.

      Dickman is an Airway Transportation Systems Specialist with the Federal

Aviation Administration (“FAA” or “agency”) in Harlingen, Texas. On August 25, 2003,

Dickman applied for the higher level position of Airway Transportation Specialist. The

Personnel Management Specialist evaluating Dickman’s application determined that

Dickman did not meet the requisite qualification standard. A subject matter expert also

reviewed Dickman’s application, reaching the same conclusion. As a result, Dickman’s
application was not considered any further, and he was not afforded veterans’

preference.

      Dickman sought relief from the Department of Labor which was denied. Dickman

then appealed to the Board. An Administrative Judge (“AJ”) explained that the Board

lacked jurisdiction over his non-selection for the Airways Transportation Specialist

position, including the determination of whether Dickman was qualified for the position.

The AJ also found that because Dickman was rated not qualified for the position he had

not established that the agency violated his veterans’ preference rights. Alternatively,

the AJ determined that even if Dickman was qualified for the position, he was not

entitled to veterans’ preference because the action he was seeking was a promotion

and veterans’ preference does not apply to promotions. Because Dickman was seeking

appointment to a position that was equivalent to a GS-13 position, the AJ also found

that he was not entitled to a veterans’ readjustment appointment pursuant to

38 U.S.C. § 4214.   The AJ also determined that the FAA did not violate Dickman’s

veterans preference rights by failing to follow the pass-over requirements of

5 U.S.C. § 3318(b). Finally, given that the FAA has a Disabled Veterans Affirmative

Action plan, the AJ ruled that Dickman had not shown that the agency violated his

veterans preference rights under 5 C.F.R. Part 720.

      The full Board denied Dickman’s petition for review, and the AJ’s decision

became    final.    This   appeal   followed.    We   have    jurisdiction   pursuant   to

28 U.S.C. § 1295(a)(9).

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board's decision unless we find it to be arbitrary,




05-3169                                    2
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C § 7703(c).

       In a Veterans Employment Opportunities Act (“VEOA”) petition for relief, a

preference-eligible may appeal to the Board after seeking resolution from the Secretary

of Labor for an alleged violation of a statute or regulation regarding veterans’

preference. See 5 U.S.C. § 3330a. However, the Board’s jurisdiction is limited to an

alleged violation of veterans’ preference rights and not the merits of the non-selection.

See 5 U.S.C. § 7512; see also Ramsey v. Office of Pers. Mgmt., 87 M.S.P.R. 98, 102

(2000) (“The plain language of the [VEOA] only prohibits an agency from denying a

preference eligible or veteran the opportunity to compete; it does not provide that

veterans will be considered eligible for positions for which they are not qualified.”).

Accordingly, to the extent Dickman argues that he should have been considered

qualified for the Airways Transportation Specialist position, the AJ was correct in her

finding that the Board lacked jurisdiction to address that issue.

       Dickman also argues that the FAA violated his veterans’ preference rights by not

following specific statutes. However, as the AJ noted, 5 C.F.R. § 211.102(c) explains

that veterans’ preference does not apply to promotions. See Brown v. Dep’t of Veterans

Affairs, 247 F.3d 1222, 1224-25 (Fed. Cir. 2001) (“We affirm the proposition established

in Crowley, namely, that veterans are not accorded any preference under the [laws of

veterans’ preference] when seeking promotion or intra-agency transfers.”). The position

Dickman applied for was a promotion, and therefore veterans’ preference was

unavailable to him.




05-3169                                      3
     Accordingly, we affirm the Board’s decision.




05-3169                                  4
