NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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 
2008-3120 4 

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.