NOTE: This disposition is nonprecedential.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 Washi ngton, 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Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Me rit 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 dec ision of the Merit Systems Protection Board dismissing an appeal related to his ve terans’ preference rights. We affirm

. BACKGROUND Mr. Lazaro unsuccessfully applied for seve ral positions within the Department of Veterans Affairs (“DVA”) in 2006. After his a ttempts proved to be ineffective, Mr. Lazarobegan to consider whether his failure to obt ain 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 t he 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 re flect 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. Lazar o 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 reflec ted 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 simp ly wanted to have hi s veterans’ preference status updated. In January 2008, the agency updat ed 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 t he appeal. However, in the opening sentence of the order dismissing t he appeal, the administrative judge stated that the appeal arose from an allegation “that the agency violated his veterans’

2008-3288 2preference rights by not se lecting him for a position as a GS-7/9 Information Technologist Specialist under Vacancy A nnouncement No. MP-06-150-AC-IT.” Mr. Lazaro objected to that characterization, cl aiming that the only issue in the case had been his entitlement to the five-point vete rans’ preference and that he had not alleged that the agency violated his rights by not sele cting him for the Info rmation Technologist Specialist position. Mr. Lazaro petitioned the full Board for review of the administrative judge’s initial decision, asking the Board to “corre ct the record in this case to reflect that the appellant agreed to drop his appeal regardi ng his entitlement to a five point Veterans’ preference which was the only i ssue before the Board.” The DVA responded that it did “not object to t he Initial Decision being amended to reflect that Appellant filed his appeal alleging violation of his veter ans’ preference rights” and that it was “amenable to an amendment of the Initial De cision, to correct what appears to be a clerical error.” In response to the petiti on, the full Board found t hat there was neither new information presented nor any legal erro r 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 t hat 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 attemp t to have the “Administrative Judge’s initial decision . . . amended to reflect that the Appe llant filed the appeal alleging violation of his Veterans’ Preference rights.” Mr. Lazaro notes that he had advised the administrative judge that he wa s not appealing from the agency’s decision not to select

2008-3288 32008-3288 4 him for the position that wa s 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 adm inistrative judge’s characterization of his appeal as “allegi ng that the agency viol ated his veterans’ preference rights by not se lecting him for a position as a GS-7/9 Information Technologist Specialist under Vacancy A nnouncement No. MP-06- 150-AC-IT” is at minimum too narrow. While Mr. Lazaro referr ed 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 t hat and focused on the veterans’ preference issue. While it is unclear how t he 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 clai m 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.