                      NOTE: This disposition is nonprecedential.


      United States Court of Appeals for the Federal Circuit


                                      2007-3114


                                  WILLIAM D. LYNCH,

                                                           Petitioner,


                                           v.

                            DEPARTMENT OF THE ARMY,

                                                            Respondent.


      William D. Lynch, pro se.

       John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Kathryn A. Bleecker, Assistant Director. Of counsel on the brief was Captain Jessica L.
Bossi, Office of the Staff Judge Advocate, United States Department of the Army, of Fort
Sam Houston, Texas.

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                          NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2007-3114

                                   WILLIAM D. LYNCH,

                                                                       Petitioner,

                                            v.

                            DEPARTMENT OF THE ARMY,

                                                                       Respondent.

                          ___________________________

                          DECIDED: June 12, 2007
                          ___________________________


Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges.

PER CURIAM.

       William D. Lynch (“Lynch”) appeals from the decision of the Merit Systems

Protection Board (“Board”) in DE-3443-06-0256-I-1, denying his request for corrective

action under the Veterans Employment Opportunities Act (“VEOA”). Because Lynch

was denied procedural protections he was entitled to under veterans’ preference

statutes, we reverse and remand.

                                   BACKGROUND

      The Department of the Army (“Army”) issued a vacancy announcement for the

position of Supervisory Budget Analyst, Naval Station, Guantanamo Bay, Cuba

(“Guantanamo Bay”). The “Qualifications” section of the vacancy announcement noted

that: (1) “[a]ll [e]mployee [sic] and [f]amily members are required to have medical

clearance”; (2) “[i]ncumbent and family members are required to live in housing
provided on installation; and (3) “[l]imited [m]edical [c]are [is] available.” Resp. App. 20-

21. The Army was a “tenant organization” of the Naval Station, Guantanamo Bay (i.e.,

the Navy rather than the Army operated the facility), and these qualifications were

consistent with the Naval Station’s policies.       Since Guantanamo Bay is “isolated,

geographically and politically, in a communist country,” base residency was a necessity

for any position at the installation. Id. at 23. Likewise, given the limited medical care

available at Guantanamo Bay, all residents of the base must be “medically fit” with

exceptions granted in the “sole discretion” of the Commanding Officer of Guantanamo

Bay. Id. at 2.

       Lynch applied for the Supervisory Budget Analyst position at Guantanamo Bay

as a ten point 30% disabled preference eligible veteran. The Army made a tentative job

offer to Lynch in early July 2005, which stated under the heading “Physical

Requirement”: “YES [medical clearance for family members, limited medical care

available].”   Id. at 3. Lynch and his family underwent medical screenings between

August 2005 and November 2005, and it was discovered that Lynch suffered from

hematuria (blood in the urine) and hypertension. On December 21, 2005, the Army

withdrew Lynch’s tentative job offer because the Commanding Officer of Guantanamo

Bay, after reviewing Lynch’s medical records, determined that he was not medically

suitable for employment at the facility. The vacancy announcement was later cancelled

and, according to the agency, the position has not been filled.

       Pursuant to the VEOA, Lynch filed a complaint with the Secretary of Labor

claiming that the Army had violated his veterans’ preference rights.              5 U.S.C.

§ 3330a(a). The Department of Labor determined that his claim lacked merit because



2007-3114
                                          2
the Army was required to comply with the policies of Guantanamo Bay. Lynch appealed

to the Board under the VEOA. 5 U.S.C. § 3330a(d). The Administrative Judge (“AJ”)

denied his request for corrective action, concluding that the VEOA guarantees a

preference eligible only the opportunity to compete for a position and that Lynch “ha[d]

identified no veterans’ preference statute or regulation which precludes an agency from

withdrawing a job commitment offer because an applicant is not medically cleared for

employment at a remote overseas location.” Lynch v. Dep’t of Army, No. DE-3443-06-

0256, slip op. at 6-7 (M.S.P.B. Aug. 10, 2006) (“Board Decision”). The full Board denied

Lynch’s petition for review, and the AJ’s initial decision became the final decision of the

Board.

         Lynch timely appealed to this court, and we have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                      DISCUSSION

         The Board’s decision must be affirmed unless it is found to be 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); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,

1483 (Fed. Cir. 1998).

                                             I

         Lynch argues that the Army violated his veterans’ preference rights under 5

U.S.C. 3312(a) and (b).      Section 3312(a) provides that the Office of Personnel

Management or other examining agency, “[i]n determining qualifications of a preference

eligible for examination for, appointment in, or reinstatement in the competitive service,”



2007-3114
                                         3
shall waive physical requirements if it determines that the preference eligible is

physically able to perform efficiently the duties of the position.      Section 3312(b)

provides:

      If an examining agency determines that . . . a preference eligible . . . who
      has a compensable service-connected disability of 30 percent or more is
      not able to fulfill the physical requirements of the position, the examining
      agency shall notify the Office of the determination and . . . before the
      selection of any other person for the position, [the Office] shall make a
      final determination on the physical ability of the preference eligible to
      perform the duties of the position. . . . The appointing authority shall
      comply with the findings of the Office.

(emphases added).

      There is no dispute in this case that Lynch is a preference eligible with a service-

connected disability of 30%. Likewise, it is undisputed that Lynch’s tentative job offer

was withdrawn because he failed to satisfy the physical requirements for Guantanamo

Bay. Finally, it is undisputed that the Army did not comply with the requirements of 5

U.S.C. § 3312(b).

      The Army admits that the Board appeared to have erred when it ignored the fact

that Lynch was 30% disabled and thus subject to the requirements of § 3312(b), but the

Army claims this error was harmless because it did not affect the outcome. The Army

argues that, while § 3312(b) requires it to notify OPM if it determines that a preference

eligible is unable to meet the physical requirements of the position, it only determined

that Lynch was unable to fulfill the physical requirements of the duty location. The Army

also argues that there are no physical requirements for the position of Supervisory

Budget Analyst.




2007-3114
                                        4
                                               II

      The government’s theory presents us with a question of statutory interpretation—

whether § 3312(b)’s reference to “the physical requirements of the position” refers solely

to the physical requirements inherent in the job itself or whether it includes physical

requirements resulting from the location of the job. The government has pointed to no

language in the statute, regulations, or legislative history that supports its limited

interpretation. Nor have we found any. The term “position” is not defined in the statute

for purposes of § 3312, and the regulations that address this statutory provision do not

shed any light on the question before us.           See 5 C.F.R. §§ 302.202, 302.403, &

351.702. The only mention of this provision in the committee reports accompanying the

enactment of this provision basically mirrors the statutory language. See H.R. Conf.

Rep. No. 95-1717, reprinted in 1978 U.S.C.C.A.N. 2860, 2877. We see no reason

under the statute to distinguish between physical requirements inherent in the job itself

and physical requirements that result from the location of the job. These are both

“physical requirements of the position.”

      The Army’s proposed definition of “position” is not only lacking support in the

statutory language. It is also overly technical and inconsistent with the documentary

record in this case. It is undisputed that the Army refused to appoint Lynch to the

position for which he applied—Supervisory Budget Analyst at Guantanamo Bay—

because he failed to satisfy physical requirements (i.e., medical clearance). The Army

listed “medical clearance” as a “qualification” for the job in the vacancy announcement.

Similarly, on the “commit sheet” generated as part of Lynch’s tentative job offer, the

Army indicated that “medical clearance” was a “Physical Requirement” of the job.



2007-3114
                                           5
Finally, even on appeal, the army refers to the “position” involved in this case as

“Supervisory Budget Analyst, Naval Station, Guantanamo Bay, Cuba,” suggesting that

any physical requirements for stationing at Guantanamo Bay are part of the physical

requirements of the “position.” See Informal Br. of Resp. at 2.

       The Army expresses concern that compliance with Lynch’s veterans’ preference

rights will violate its obligations as a “tenant organization” at Guantanamo Bay.

However, this determination is ultimately entrusted by Congress to OPM, not the Army,

and we are confident that OPM would consider all relevant factors. Thus, we conclude

that the Army violated Lynch’s veterans’ preference rights when it withdrew his tentative

job offer, without notifying OPM, because he failed to satisfy the physical requirements

of the position. Instead, the Army should have referred the matter to OPM pursuant to

the requirements of 5 U.S.C. § 3312(b). We reverse the Board’s decision and remand

to the Board for further proceedings consistent with this opinion.

       No costs.




2007-3114
                                         6
