NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3120 CHARLES L. LIGHT, Petitioner,

v. SMALL BUSINESS ADMINISTRATION, Respondent.

__________________________ DECIDED: October 10, 2006

__________________________

Before GAJARSA, LINN, and PROST, Circuit Judges

. PER CURIAM. Charles L. Light (“Light”) petitions for revi ew of the decision of the Administrative Judge (“AJ”) that sustained his non-selecti on by the Small Business Association (“Agency”) for the position of Attorney/Advis or in the Disaster Assistance Program, Disaster Area Office 2 in Atlanta, Georgia. Light v. Small Bus. Admin. , No. AT-0330-05- 0198-I-1 (M.S.P.B. Jul. 27, 2005) (“Initial Decision”). In Light’s appeal to the Merit Systems Protection Board (“Board”), Light ar gued that the Agency violated his rights under the Veterans Employment Opportunity Act of 1988 (“ VEOA”). The Board rejectedLight’s argument and concluded t hat the Agency’s decision not to hire Light did not violate Light’s veterans ’ preference rights. Light v. Small Bus. Admin. , No. AT-0330-05- 0198-I-1 (M.S.P.B. Dec. 28, 2005) (“Final Order”). The AJ’s decision became the final decision of the Board after the Board denied Light’s petition for review. Because the decision of the Board is supported by substantial ev idence, is not an abuse of discretion, and does not otherwise contain reversible error, we affirm

. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Pursuant to 5 U.S.C. § 7703(c) , this court must affirm the Board’s decision unless it is: (1) arbitrary, capr icious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without pr ocedures required by law, ru le or regulation having been followed; or (3) unsupported by substantial evidence. Chase-Baker v. Dep’t of Justice , 198 F.3d 843, 845 (Fed. Cir. 1999). T he petitioner bears the burden of establishing reversible error in reviewing a decision of an administr ative agency such as the Board. Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998). Statutory construction is a question of law that we review de novo. James v. Santella , 328 F.3d 1374, 1377 (Fed. Cir. 2003). The VEOA provides redress for a preference eligible veteran “who alleges that an agency has violated . . . [his or her] rights under any statute or regulation relating to veterans’ preference.” 5 U. S.C. § 3330(a)(1)(A). Under the VEOA, veterans “may not be denied the opportunity to compete for vac ant positions for which the agency making the announcement will accept applic ations from individuals outside its own workforce under merit promotion procedures.” 5 U.S. C. § 3304(f)(1). Se ction 3304(f) further provides, “This subsection shall not be constr ued to confer an entitlement to veterans’

06-3120 2preference that is not ot herwise required by law.” Id. § 3304(f)(3). 5 C.F.R. § 302.101 sets forth which positions are subject to the veterans’ pref erence appointment of procedures and lists certain posit ions that are wholly exem pt from veteran-preference appointment procedures. A ttorney positions fall within this exemption. 5 C.F.R. § 302.101(c)(9). For attorney positions, an agency need only “follow the principle of veteran preference as far as administratively feasible . . . .” Id. § 302.101(c). “[T]his means an agency must consider veteran st atus as a ‘positive factor’ in reviewing applications.” Patterson v. Dep’t of Int. , 424 F.3d 1151, 1159 (Fed. Cir. 2005). The AJ found, and Light does not dispute, that the A gency was aware of Light’s veteran status, recalled the problems that Light caused in his prior employment, and informed Light that its decision not to hire Light was solely due to Light’s negative employment history and his inab ility to work with others. Initial Decision , slip op. at 3. Although the Agency did not expre ssly state in its October 6, 2004 letter to Light that it considered his veteran status as a “pos itive factor” that was outweighed by the Agency’s prior experience with Light, we presum e that, in noting Light ’s veteran status, the Agency properly discharged its administrative duty to consi der Light’s veteran status as a “positive factor,” which in this ca se was outweighed by Li ght’s history with the Agency. See Miley v. Principi , 366 F.3d 1343, 1347 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly di scharged their official duties.”). Because Light has not presented clear evidence sufficient to overcome the presumption of regularity, we therefore agr ee with the Board that Light’s rights under the VEOA were not violated.

06-3120 3We also agree that the Board lacked jurisdiction to entertain Light’s discrimination claim. The Board lacks jurisd iction over a discrimination claim except where it is accompanied by an adverse acti on claim over which the Board does have jurisdiction. See 5 U.S.C. § 7702(a)(1); Cruz v. Dep’t of the Navy , 934 F.2d 1240, 1245 (Fed. Cir. 1991) (en banc). Non-selecti on for employment is not an independently appealable action under 5 U.S.C. § 7702. See Prewitt v. Merit Sys. Prot. Bd. , 133 F.3d 885, 886 (Fed. Cir. 1998). Because the Light’s discrimination claims are not otherwise appealable, and because the provisions of VEOA give the Boar d no authority to adjudicate the merits of any personnel action; rather, they authorize the Board only to determine whether an agency has vi olated a statutory or regulat ory provision relating to veteran preference, the Board may not employ VEOA to attain jurisdiction over Light’s discrimination claim. See 5 U.S.C. § 3330a(a)(1)(d); See Metzenbaum v. Gen. Servs. Admin. , 96 M.S.P.R. 104, ¶ 5 n.3 (M.S.P.B. 2004), aff’d , 122 Fed. Appx. 476 (Fed. Cir. 2005) (unpublished). Accordingly, because the Board has no authority to review, in a VEOA appeal, his claim of discrimination, Li ght has failed to satisfy his burden of showing that the Board has jurisd iction over his non-selection. For the foregoing reasons, the Board’s decision is affirmed.

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