                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-3120

                                MICHAEL C. SMART,

                                                            Petitioner,

                                          v.

                           DEPARTMENT OF THE ARMY,

                                                            Respondent.

      Michael C. Smart, of El Paso, Texas, pro se.

       Christopher L. Krafchek, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Martin F. Hockey, Jr., Assistant Director.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2008-3120

                                 MICHAEL C. SMART,

                                                      Petitioner,

                                           v.

                            DEPARTMENT OF THE ARMY,

                                                      Respondent.

Petition for review of the Merit Systems Protection Board in DE0731060294-B-1.
                            __________________________

                               DECIDED: June 6, 2008
                           __________________________

Before MAYER, SCHALL, and LINN, Circuit Judges.

PER CURIAM.

      Michael C. Smart (“Smart”) seeks review of a final decision of the Merit Systems

Protection Board (“Board”) holding that Smart failed to prove his claim of discrimination

against the Department of the Army (“Army”) under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-

4333. Smart v. Dep’t of the Army, No. DE0731060294-B-1 (M.S.P.B. Aug. 10, 2007)

(“2007 Initial Decision”), reh’g denied, Smart v. Dep’t of the Army, No. DE0731060294-

B-1 (M.S.P.B. Nov. 28, 2007). We affirm.

      Smart contends that the Army imperissibly declined to select him for a Security

Guard position with the Law Enforcement & Security Division at the Pueblo Chemical

Depot in Colorado because of his status as a veteran.         See 38 U.S.C. § 4311(c)
(providing that under USERRA, “[a]n employer shall be considered to have engaged in

actions prohibited . . . if the person’s . . . service in the uniformed services is a

motivating factor in the employer’s action, unless the employer can prove that the action

would have been taken in the absence of such . . . service”). An earlier Initial Decision

had sustained the Army’s negative suitability determination but failed to address Smart’s

affirmative defenses. Smart v. Dep’t of the Army, No. DE0731060294-B-1 (M.S.P.B.

Oct. 19, 2006) (“2006 Initial Decision”). On review, the Board remanded the case for

adjudication of Smart’s affirmative defenses of unlawful color and race discrimination

and retaliation for prior Equal Employment Opportunity activity, neither of which are

relevant to this petition. Smart v. Dep’t of the Army, No. DE0731060294-B-1 (M.S.P.B.

Apr. 12, 2007) (“Remand Order”).

       On remand, Smart alleged for the first time his affirmative defense of

discrimination under USERRA.          The Board noted that the selecting official, Major

Ortega, had submitted a sworn statement denying that Smart’s prior military service was

a motivating factor in not selecting him for the Security Guard position and that “the

record is devoid of any evidence that [Smart’s] status as a veteran was a factor in [the

selecting official’s] suitability decision.” 2007 Initial Decision at 6. It further held that the

Army had “demonstrated by preponderant evidence a valid, legitimate government

reason for its decision not to select [Smart] due to a negative suitability determination.”

Id. at 7. Smart appeals the Board’s USERRA determination. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

       In his petition, Smart relies exclusively on Major Ortega’s testimony that he

considered, among other factors, Smart’s Company Grade Article 15 and general




2008-3120                                   2
discharge from active duty for fighting in making his decision to remove Smart from

consideration. See 2006 Initial Decision at 5. Smart argues that this partial reliance on

discipline received while in the military demonstrates that his status as a veteran was a

“motivationg or substantial factor” in the Army’s decision not to select him for

employment, and that the Army failed to prove that it would have taken the same action

in the absence of this status. See Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1014

(Fed. Cir. 2001) (“[I]n USERRA actions there must be an initial showing by the

employee that military status was at least a motivating or substantial factor in the

agency action, upon which the agency must prove, by a preponderance of evidence,

that the action would have been taken despite the protected status.”).

       “This court’s scope of review of [Board] decisions is defined and limited by

statute. The agency’s action in this case must be affirmed unless it is found to be: (1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2)

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

(3) unsupported by substantial evidence.” Hayes v. Dep’t of the Navy, 727 F.2d 1535,

1537 (Fed. Cir. 1984) (citing 5 U.S.C. § 7703(c)).

       Smart does not dispute the Board’s finding that “the documentary and testimonial

evidence of record” established that Smart “was, in fact, unsuitable for Federal

employment in light of his troubling employment record and history of unpaid debts, and

that the agency’s negative suitability determination promoted the integrity and efficiency

of the service.”     Remand Order at 5.          Smart’s employment record included

“abandonment of one civilian position, removal from a second civilan position for being

unable to complete academic training, and removal from a third civilian position for




2008-3120                                3
failure to perform.”    2006 Initial Decision at 7.       These findings, along with the

observation that Smart “had a history of debt problems and in fact had not paid one

creditor for over a year,” id., were based on Smart’s own admissions and amply support

Major Ortega’s determination that Smart would be “unable to obtain a secret security

clearance or qualify as suitable under the agency’s CPSR program,” both of which were

required for the position at issue, 2006 Initial Decision at 4-5.

       Because substantial evidence supports the Board’s finding that the Army

demonstrated a legitimate reason for its decision not to select Smart for the Security

Guard position, we need not and do not address Smart’s contentions regarding the

Army’s consideration of discipline received by Smart during his military service. See

generally Pittman v. Dep’t of Justice, 486 F.3d 1276, 1282 (Fed. Cir. 2007) (declining to

address whether an employee can be removed for cause under USERRA based on that

employee’s conduct during military service).

       Because the Army carried its burden in demonstrating that it “would have taken

the adverse action anyway, for a valid reason,” Sheehan, 240 F.3d at 1013, because

the Board’s decision is supported by substantial evidence, and because we otherwise

discern no basis on which to overturn the decision, we affirm.

                                           COSTS

       No costs.




2008-3120                                 4
