        NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                JAMIE B. SWIDECKI,
                     Petitioner,
                           v.
          DEPARTMENT OF COMMERCE,
                 Respondent.
              __________________________

                      2011-3049
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF4324090759-B-1.
              ___________________________

                Decided: June 10, 2011
              ___________________________

   JAMIE B. SWIDECKI, Bakersfield, California, pro se.

    JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director. Of counsel on the brief was FRANK M.
WALSH, Agency Representative, Employment and Labor
SWIDECKI   v. COMMERCE                                    2


Law Division, United States Department of Commerce, of
Washington, DC.
              __________________________

   Before BRYSON, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
    Jamie B. Swidecki (“Swidecki”) petitions for review of
a decision by the Merit Systems Protection Board
(“Board”). The Board found that Swidecki failed to prove
that, under the Uniformed Service Employment and
Reemployment Act of 1994, 38 U.S.C. § 4311 (“USERRA”),
the Department of Commerce (“Commerce”) discriminated
against him on the basis of his prior military service when
it denied him employment. Swidecki v. Dep’t of Com-
merce, SF-4324-09-0759-B-1 slip op. at 7–8 (M.S.P.B May
3, 2010). We affirm.
                         BACKGROUND
    Swidecki is a preference eligible veteran, with a 30%
disability rating, who previously worked for Commerce as
a temporary employee of the United States Census Bu-
reau (“Census Bureau”) during the 1990 and 2000 cen-
suses. In August 2008, Swidecki applied for a position
with the Census Bureau for the 2010 census in Fresno or
Santa Monica, California. The Census Bureau requires
that all applicants undergo a background check, which
includes cross-referencing applicants’ names against
Federal Bureau of Investigation (“FBI”) criminal records.
Swidecki’s name matched records in the FBI database,
and Commerce sent him a letter on August 11, 2008,
advising him to either dispute the identity of the arrest
record or provide documentation on the arrests. The
letter also advised Swidecki that “[f]or your application to
remain active, you must return all documents within 30
days.” Respondent’s App. 33. Swidecki did not send his
3                                      SWIDECKI   v. COMMERCE


arrest documentation to Commerce until six months later
in February 2009. On June 10, 2009, Commerce informed
Swidecki that he was no longer being considered for
employment because he had not provided his arrest
information within 30 days.
     On July 2, 2009, Swidecki filed an appeal with the
Board under USERRA, alleging that he was denied em-
ployment with the Census Bureau because of his military
service. Initially, the administrative judge dismissed the
appeal for lack of jurisdiction, but the full Board reversed
and remanded for a hearing. On remand, the administra-
tive judge held a telephonic hearing and determined that
Swidecki had failed to prove (as required by USERRA)
that his military service was a motivating factor in Com-
merce’s decision not to employ him. Swidecki filed a
petition for full Board review of the initial decision. In
rejecting Swidecki’s appeal, the full Board issued an order
that further rejected Swidecki’s claims that the adminis-
trative judge erred by holding a telephonic conference and
failing to consider his argument that Commerce violated
the Americans with Disabilities Act. 1 Swidecki timely
appealed, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                        DISCUSSION
    Our review of Board decisions is narrow. We may re-
verse the Board only if its decision is “(1) arbitrary, capri-
cious, 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.” Jacobs v.
Dep’t of Justice, 35 F.3d 1543, 1545 (Fed. Cir. 1994).


    1    Swidecki does not raise the Americans with Dis-
abilities Act claim on this appeal.
SWIDECKI   v. COMMERCE                                     4


     Under USERRA, “[a] person who . . . has performed . .
. in a uniformed service shall not be denied initial em-
ployment . . . on the basis of that . . . performance of
service.” 38 U.S.C. § 4311(a). However, the petitioner
must prove the performance of military service was “a
motivating factor in the employer's action.” Id. § 4311(c). 2
We see no error in the Board’s conclusion that Swidecki
failed to prove that his military service was a motivating
factor in Commerce’s hiring decision. Here, Swidecki was
alerted months before the hiring decision that he would
not be considered for employment if he failed to respond
to Commerce’s request for information about his arrest
record. The Census Bureau personnel in charge of
Swidecki’s background check only had access to his name,
social security number, date of birth, and gender. They
did not have access to Swidecki’s military records or
preference eligible status. Based on this unrebutted
evidence, the Board found that the personnel who per-
formed the background check and requested that
Swidecki provide additional materials “had no way of
knowing whether [Swidecki] . . . had past uniformed
service.” Swidecki, slip op. at 5. Moreover, in response to
Swidecki’s claim that Commerce does not hire 10-point
preference eligible veterans with higher than a 30%
disability rating, the Board found that Commerce had
hired preference eligible veterans in Fresno and Santa
Monica as well as “numerous veterans” (including 10-
point, 30% veterans) “throughout the Los Angeles Re-
gion.” Id. at 6.       Substantial evidence supports the
Board’s conclusion that Swidecki failed to prove his


    2   If the petitioner meets this burden, the agency
may “prove that the action would have been taken in the
absence of” military status. Id. Because it held that
Swidecki failed to meet his burden, the Board did not
reach this question.
5                                    SWIDECKI   v. COMMERCE


veteran status was a motivating factor in Commerce’s
decision.
    Swidecki also argues that he was denied an in-person
hearing in violation of due process. Swidecki does not
claim that he objected to the telephonic hearing at the
time or that the lack of an in-person hearing somehow
affected his substantive rights. We see no error in the
administrative judge’s decision to hold a telephonic hear-
ing. Swidecki also alleges that Commerce’s attorney
representative at the telephonic hearing assassinated his
character by discussing his arrest record. Even if we
could grant relief on such a claim, Swidecki has not
explained why it was inappropriate to discuss his arrest
record when it was relevant to the case.
    Lastly, Swidecki asserts that Commerce refused to
hire him in retaliation for his participation in a lawsuit
against the Census Bureau. However, as the Board
noted, Swidecki only filed a claim under USERRA, and
the Board does not have jurisdiction under USERRA to
adjudicate claims unrelated to discrimination against a
petitioner based on military status. See Jolley v. Dep’t of
Hous. and Urban Dev., 299 Fed. Appx. 969, 972 (Fed. Cir.
2008); Metzenbaum v. Dep’t of Justice, 89 M.S.P.R. 285
(2001) (holding, after a remand from the Federal Circuit
to decide the issue, that USERRA does not provide Board
jurisdiction over other claims of discrimination even
where the case as a whole would otherwise constitute a
“mixed case” within the Board’s jurisdiction).
                      AFFIRMED
                          COSTS
    No costs.
