                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                    2008-3288

                                MANUEL LAZARO,

                                                      Petitioner,

                                         v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.


      Manuel Lazaro, of Homestead, Florida, pro se.

      Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B.
Chad Bungard, General Counsel; and Joyce G. Friedman, Acting Associate General
Counsel for Litigation.


Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2008-3288

                                  MANUEL LAZARO,

                                                Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                Respondent.


               Petition for review of the Merit Systems Protection Board
                                  in AT3443080035-I-1.

                           ___________________________

                           DECIDED: January 9, 2009
                           ___________________________


Before BRYSON, GAJARSA, and MOORE, Circuit Judges.

PER CURIAM.

                                      DECISION

      Manuel Lazaro petitions for review of a decision of the Merit Systems Protection

Board dismissing an appeal related to his veterans’ preference rights. We affirm.

                                    BACKGROUND

      Mr. Lazaro unsuccessfully applied for several positions within the Department of

Veterans Affairs (“DVA”) in 2006. After his attempts proved to be ineffective, Mr. Lazaro
began to consider whether his failure to obtain the employment he sought might have

been attributable to the fact that his employment file failed to reflect that he was entitled

to veterans’ preference status under 5 U.S.C. § 3304(f).          In an effort to have his

employment file corrected, Mr. Lazaro filed a complaint, pursuant to 5 U.S.C. § 3330a,

with the Veterans’ Employment and Training Service within the Department of Labor. In

that filing, he argued that he was a military veteran and that his form SF-50-B was

incorrect in that it did not award him a five-point veterans’ preference. A year later,

when his veterans’ preference status had still not been updated to reflect his military

service, Mr. Lazaro appealed to the Merit Systems Protection Board pursuant to 5

U.S.C. § 3330a(d).

       In the course of the appeal, Mr. Lazaro explained to the administrative judge

assigned to the case that he had applied for Position Number MP-06-150-AC-IT

Specialist GS7-9 and that his nonselection for that position led him to inquire why his

veterans’ preference status was not reflected on his Form SF-50 and in his records with

the DVA. Mr. Lazaro explained that he was not seeking redress of his nonselection for

that particular IT Specialist position but simply wanted to have his veterans’ preference

status updated.

       In January 2008, the agency updated Mr. Lazaro’s veterans’ preference status to

reflect a five-point preference and informed both Mr. Lazaro and the Board of the

change. After that step was taken, Mr. Lazaro agreed to withdraw his appeal, and the

administrative judge entered an order formally dismissing the appeal. However, in the

opening sentence of the order dismissing the appeal, the administrative judge stated

that the appeal arose from an allegation “that the agency violated his veterans’




2008-3288                                    2
preference rights by not selecting him for a position as a GS-7/9 Information

Technologist Specialist under Vacancy Announcement No. MP-06-150-AC-IT.”                  Mr.

Lazaro objected to that characterization, claiming that the only issue in the case had

been his entitlement to the five-point veterans’ preference and that he had not alleged

that the agency violated his rights by not selecting him for the Information Technologist

Specialist position. Mr. Lazaro petitioned the full Board for review of the administrative

judge’s initial decision, asking the Board to “correct the record in this case to reflect that

the appellant agreed to drop his appeal regarding his entitlement to a five point

Veterans’ preference which was the only issue before the Board.” The DVA responded

that it did “not object to the Initial Decision being amended to reflect that Appellant filed

his appeal alleging violation of his veterans’ preference rights” and that it was

“amenable to an amendment of the Initial Decision, to correct what appears to be a

clerical error.” In response to the petition, the full Board found that there was neither

new information presented nor any legal error in the administrative judge’s initial

decision and therefore denied Mr. Lazaro’s petition for review. Mr. Lazaro petitions for

review by this court.

                                       DISCUSSION

       Mr. Lazaro does not allege that the Board failed to take into account any facts,

applied the wrong law, failed to consider any ground for relief, or committed legal error.

Instead, he comes to this court in an attempt to have the “Administrative Judge’s initial

decision . . . amended to reflect that the Appellant filed the appeal alleging violation of

his Veterans’ Preference rights.”        Mr. Lazaro notes that he had advised the

administrative judge that he was not appealing from the agency’s decision not to select




2008-3288                                     3
him for the position that was the subject of a particular vacancy announcement, but

instead was appealing from the agency’s refusal to recognize his veterans’ preference

rights in general. We agree with Mr. Lazaro that the gravamen of his claim was that he

was entitled to a five-point veterans’ preference.           The administrative judge’s

characterization of his appeal as “alleging that the agency violated his veterans’

preference rights by not selecting him for a position as a GS-7/9 Information

Technologist Specialist under Vacancy Announcement No. MP-06-150-AC-IT” is at

minimum too narrow. While Mr. Lazaro referred to his nonselection for that position in

the course of the proceeding before the administrative judge, his submissions in that

proceeding make clear that his appeal was broader in scope than that and focused on

the veterans’ preference issue.

       While it is unclear how the administrative judge’s characterization of his claim on

appeal could have any prejudicial effect on Mr. Lazaro in the future, we take this

occasion to obviate that risk by clarifying that Mr. Lazaro’s claim was directed to the

failure to recognize his veterans’ preference rights, not as directed at a single particular

hiring decision. With that clarification, and in light of agency’s agreement to recognize

Mr. Lazaro’s veterans’ preference rights, we see no need to direct any further

proceedings in this case. The Board’s order dismissing the appeal is affirmed.




2008-3288                                    4
