Smart v. Department of Army , 289 F. App'x 393 ( 2008 )

NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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