                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-3247


                            WILLIAM B. DEMONTBREUN,

                                                            Petitioner,

                                          v.


                           DEPARTMENT OF THE NAVY,

                                                            Respondent.

      William B. DeMontbreun, of Crossville, Tennessee, pro se.

       David A. Harrington, Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. On the brief were Gregory G. Katsas,
Assistant Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner,
Assistant Director.

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                    NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2008-3247


                              WILLIAM B. DEMONTBREUN,

                                                              Petitioner,

                                            v.

                              DEPARTMENT OF THE NAVY,

                                                              Respondent.

    Petition for review of the Merit Systems Protection Board in AT0330070849-I-1.

                           ___________________________

                           DECIDED: October 14, 2008
                           ___________________________


Before NEWMAN, PROST, and MOORE, Circuit Judges.

PER CURIAM.

      William DeMontbreun appeals a final decision of the Merit Systems Protection

Board (MSPB), DeMontbreun v. Dep’t of the Navy, No. AT0330070849-I-1 (MSPB Apr.

3, 2008), denying his request for corrective action. We affirm.

      Mr. DeMontbreun is a preference-eligible veteran with a compensable service-

connected disability of 10% or more. On July 5, 2007, he filed an appeal alleging that

the Department of the Navy (Navy) violated his rights under the Veterans Employment

Opportunities Act of 1998 when it failed to select him for its Financial Management

Trainee Program at any of the three geographical locations to which he applied. Navy

prepared a separate certificate of eligibles for each city corresponding to Mr.

DeMontbreun’s geographic preferences, and each certificate placed Mr. DeMontbreun
in preference Category 1 for preference eligibles having a compensable service-

connected disability of 10% or more. Because there were fewer than three candidates

in Category 1 for each city, Navy also considered candidates from lower categories

according to 5 C.F.R. § 302.401. Navy ultimately selected candidates in each city from

these lower categories. Mr. DeMontbreun alleged that Navy should have used a single

nation-wide certificate of eligibles, which would have included at least three candidates

in Category 1 and therefore would have prevented Navy from considering candidates

from lower categories. Mr. DeMontbreun also alleged that Navy’s bi-weekly selection of

candidates was too frequent and that it should have waited until three or more

candidates were in Category 1, which also would have prevented Navy from

considering lower categories.

      In an initial decision dated October 15, 2007, an administrative judge (AJ)

determined that Navy “properly afforded [Mr. DeMontbreun] his veterans preference

under law and regulation by recognizing his veterans preference and putting him in

category I.” The AJ explained that no law, rule, or regulation required Navy either to

make its selections from a single nation-wide certificate or to wait until three or more

candidates were in Category 1. This decision became final on April 3, 2008 when the

MSPB denied Mr. DeMontbreun’s petition for review.

      Mr. DeMontbreun appeals the MSPB’s final decision, and we have jurisdiction

under 28 U.S.C. § 1295(a). Our review is limited to setting aside findings or conclusions

of the MSPB that we find to be “(1) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; (2) obtained without procedures required by law,




2008-3247                                  2
rule, or regulation having been followed; or (3) unsupported by substantial evidence.”

5 U.S.C. § 7703(c).

       Mr. DeMontbreun contends that the AJ: (1) failed to consider 5 C.F.R. § 302.401;

(2) improperly interpreted section 302.401 as explained above; and (3) “overlooked

Navy’s attempt to withhold information to justify its non-selection of preference

eligibles.” We disagree. First, the AJ considered section 302.401 and indeed quoted

subsection (a) of this regulation. Second, and consistent with the AJ’s initial decision,

we are aware of no law, rule, or regulation—nor has Mr. DeMontbreun cited any—that

required Navy to make its selections from a single nation-wide certificate or to wait until

three or more candidates were in Category 1.         The AJ’s conclusion that the Navy

properly afforded Mr. DeMontbreun his veterans preference rights when it placed him in

Category 1 was not arbitrary, capricious, an abuse of discretion, or unsupported by

substantial evidence. Third, Mr. DeMontbreun does not explain what information he

believes Navy withheld.

       For the foregoing reasons, we affirm the final decision of the MSPB denying Mr.

DeMontbreun’s request for corrective action.

                                            COSTS

       No costs.




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