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
04-3411
JOHN W. LYNCH,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: March 9, 2005
__________________________
Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.
PER CURIAM.
John W. Lynch (“Lynch”) petitions for review of a final decision of the Merit
Systems Protection Board (“Board”), No. DE-3443-03-0447-I-1, dismissing Lynch’s
appeal of his claim under the Veterans Employment Opportunities Act of 1998 (“the
Act”) for failure to state a claim upon which relief could be granted. Because the Board
correctly dismissed Lynch’s appeal, we affirm.
BACKGROUND
On June 26, 1998, a Notice of Proposed Removal was issued to Lynch due to his
physical inability to perform the essential duties of his position as a city letter carrier with
the United States Postal Service (“Postal Service”). Lynch requested the Postal Service
accommodate him by assigning him to permanent light duty. Lynch was removed from
his position effective April 9, 1999, after Lynch and the Postal Service were unable to
reach an agreement on a light duty position Lynch could perform.
Lynch appealed his removal to the Board, which ultimately upheld his removal.
Lynch appealed to this court, which also affirmed the Board’s decision, Lynch v. U.S.
Postal Serv., 17 Fed. Appx. 996 (Fed. Cir. 2001), and denied his petition for rehearing.
In November 1999, while the appeal of his removal was pending before the
Board, Lynch attempted to bid on a position for Vehicle Operations and Maintenance
Assistant at the Main Post Office in Sun City, Arizona (“the VOMA position”). Because
Lynch had already been removed from the Postal Service, he was ineligible to bid on
the VOMA position. The VOMA position was awarded to an incumbent Postal Service
employee.
Lynch filed a complaint with the U.S. Equal Employment Opportunity
Commission (“EEOC”), challenging the Postal Service’s decision not to select him for
the VOMA position as discriminatory. The EEOC administrative judge issued a finding
of no discrimination.
Lynch then filed an administrative veterans’ preference complaint under the Act
with the U.S. Department of Labor. Following an investigation, the Department of Labor
found no violation of Lynch’s veterans’ preference rights. Lynch sought review of his
veterans’ preference claim by the Board. In its Initial Decision, the Board dismissed
Lynch’s claim, finding that Lynch had failed to state a claim upon which relief could be
granted because he had failed to reference a law, rule or regulation regarding veterans’
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preference which the Postal Service allegedly violated. The initial decision became final
on July 2, 2004 when the full Board denied Lynch’s petition for review.
Lynch appealed the Board’s final order. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
ANALYSIS
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Abell v. Dep’t of the
Navy, 343 F.3d 1378, 1382-83 (Fed. Cir. 2003). “[A] complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson,
355 U.S. 41, 45-46 (1957).
Under the Act, certain veterans “may not be denied the opportunity to compete
for vacant positions for which the agency making the announcement will accept
applications from individuals outside its own workforce under merit promotion
procedures.” 5 U.S.C. § 3304(f)(1) (2000). The Act does not provide veterans an
opportunity to compete for vacant positions for which the agency making the
announcement will not accept applications from individuals outside its own workforce.
The record evidence on appeal indicates that the VOMA position Lynch sought was a
bid position only open to existing Postal Service employees. Lynch presented no
argument or evidence to the Board that the Postal Service opened the VOMA position
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to candidates outside the Postal Service. Moreover, since Lynch had been removed
from his position at the Postal Service in April 1999, prior to the Postal Service listing
the VOMA position in November 1999, Lynch could not assert his veterans’ preference
rights under the Act. See 5 U.S.C. § 3304(f)(1) (2000).
We have reviewed Lynch’s remaining arguments and find them to be without
merit. Because Lynch can prove no set of facts in support of his claim which would
entitle him to relief under the Act, we affirm the Board’s dismissal of his appeal for
failure to state a claim upon which relief can be granted.
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