                   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

                                        05-3247


                                   ERIC WILLIAMS,

                                                                       Petitioner,

                                            v.

               U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT,

                                                                       Respondent.

                           __________________________

                           DECIDED: November 15, 2005
                           __________________________


Before LOURIE, CLEVENGER, and LINN, Circuit Judges.

PER CURIAM.


      Eric Williams seeks review of the final decision of the Merit Systems Protection

Board ("Board") dismissing his appeal in which, pursuant to the Veterans Employment

Opportunities Act of 1998 (“VEOA”), 38 U.S.C. § 4311, he challenged his nonselection

for the position of Auditor with Office of Inspector General in the United States Agency

for International Development ("agency"). Williams v. United States Agency for Int'l

Dev., No. AT0330040227-C-1 (Sept. 27, 2004) ("Final Decision"). We affirm.

                                             I

      Mr. Williams is a veteran of the U.S. armed forces and has a disability rating of

30 percent. Mr. Williams applied for the position of Auditor with the Office of Inspector

General of the agency.     When he was not selected for the position, Mr. Williams
appealed to the Board, arguing that the agency violated his rights under the VEOA as it

failed to consider his status as a disabled veteran.              In an initial decision, the

administrative judge found that the agency had violated VEOA, as "the appellant's

status as a veteran was not considered as part of the selection process," and remanded

to the agency for a "reconstruction of all selection actions . . . for which military service

was      not   considered."    Williams   v.    United   States    Agency    for   Int'l   Dev.,

Nos. AT0330040226-I-1, AT0330040227-I-1 (Apr. 12, 2004) ("Initial Decision").

         After reconstruction, Mr. Williams was once more turned down for the position,

and he once again appealed to the Board.             However, in this second decision, the

administrative judge noted that the agency had properly considered Mr. Williams' status

as a disabled veteran and denied Mr. Williams further relief. Final Decision at 2. The

full Board denied petition for review and the administrative judge's decision became the

final decision of the Board. Mr. Williams timely appealed, and we have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                               II

         We must affirm final decisions of the Board unless they are arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation; or unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2000); Hayes v. Dep't of the Navy, 727 F.2d 1535, 1537 (Fed. Cir.

1984).

                                               III

         The only issue before this court is whether the agency properly considered

Mr. Williams' status as a disabled veteran when it declined to offer him the position of




05-3247                                    2
Auditor. Notwithstanding the administrative judge's initial decision, the record is clear

that, when the agency initially evaluated the applicants for the Auditor position, it

awarded Mr. Williams the maximum number of points, ten, for status as a disabled

veteran.   The agency also awarded Mr. Williams five points for "Other Related

Experience," five points for "Office Software," and five points for "Academic

Honors/GPA," for a total of 25 points, fewer than the 35 and 60 points awarded to the

two individuals who were offered the position.

       However, despite having awarded Mr. Williams ten points for "Veterans

Preference," the agency erroneously admitted to the administrative judge in the initial

appeal that it had not considered Mr. Williams' status as a veteran. Thus, when the

administrative judge remanded for reconstruction of the selection process, the agency

sought to add points to Mr. Williams' rating. As Mr. Williams had already been awarded

the maximum number of points under the "Veterans Preference" category, the agency

added points in the category "Other Related Experience."        Mr. Williams had been

awarded five points in this category in the initial selection process, so the agency

awarded him an additional five points, bringing him to the maximum of ten points

allowed in this category.

       In addition to the ten points for "Veterans Preference" and the ten points for

"Other Related Experience," the agency once more awarded Mr. Williams five points for

"Office Software" and five points for "Academic Honors/GPA," for a total of 30 points.

Thus, once again, Mr. Williams had fewer points than the 35 and 60 points of the two

individuals who were offered the job.




05-3247                                  3
       Mr. Williams, understandably under the impression that he had not been

awarded any points for "Veterans Preference" in the initial selection, contends that he

should have been awarded ten additional points, not five. This would have brought his

rating to 35 points, the same as that of one of the selected applicants.       Because

5 C.F.R. § 332.401 requires that disabled veterans be granted preference over non-

disabled veterans with the same rating, Mr. Williams may then have been offered the

job.

       However, it is clear that Mr. Williams' initial rating of 25, and his subsequent

rating of 30, included ten points for "Veterans Preference," the maximum allowed.

Thus, substantial evidence supports the administrative judge's determination that

Mr. Williams' status as a disabled veteran was properly considered, and we affirm.




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