                 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

                                        04-3302

                                 MICHAEL S. YOUNG,

                                                      Petitioner,

                                           v.

                            DEPARTMENT OF THE ARMY,

                                                      Respondent.


                            __________________________

                            DECIDED: November 9, 2004
                            __________________________


Before MICHEL, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.

PER CURIAM.


                                      DECISION

      Michael S. Young petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that (i) dismissed for lack of jurisdiction his claim that his

non-selection by the Department of the Army (“agency”) for appointment to the position

of Logistics Management Specialist, GS-0346-12, was in violation of his rights under the

Veterans Employment Opportunities Act of 1996 (“VEOA”), 5 U.S.C. § 3330a; and (ii)

denied for failure to state a claim upon which relief could be granted his claim that his

non-selection was the result of discrimination against him based upon his status as a
veteran, in violation of the Uniformed Services Employment and Reemployment Rights

Act (“USERRA”), 38 U.S.C. § 4311. Young v. Dep’t of the Army, No. CH-3443-03-0709-

I-1 (Mar. 30, 2004). We affirm.

                                      DISCUSSION

                                           I.

       After the agency failed to select Mr. Young for the Logistics Management

Specialist position, he appealed to the Board. In his appeal, he alleged that his non-

selection violated his rights under the VEOA. He also alleged that his non-selection

was the result of discrimination prohibited by USERRA, 38 U.S.C. § 4311.

       In an initial decision dated September 9, 2003, the administrative judge (“AJ”) to

whom the case was assigned dismissed Mr. Young’s VEOA claim for lack of jurisdiction

and denied his USERRA claim for failure to state a claim upon which relief could be

granted. Young v. Dep’t of the Army, No CH-3443-03-0709-I-1 (Sep. 9, 2003). The AJ

ruled that the Board lacked jurisdiction to consider Mr. Young’s VEOA claim because he

had failed to exhaust his remedies before the Department of Labor. As far as Mr.

Young’s USERRA claim was concerned, the AJ ruled that Mr. Young had failed to

allege facts which, if true, would support his allegations of discrimination.1 The AJ’s

initial decision became the final decision of the Board on March 30, 2004, after the

Board dismissed Mr. Young’s petition for review for failure to meet the criteria for review

set forth in 5 C.F.R. § 1201.115(d).      This appeal followed.     We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).



      1
              In her initial decision, the AJ pointed out that the agency presented
evidence that it cancelled the vacancy announcement for the Logistics Management
Specialist position without making a selection.


04-3302                                         2
                                          II.

      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); see Kewley v. Dep’t of Health

& Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      On appeal, Mr. Young asserts that his VEOA rights were violated and that the

agency discriminated against him in violation of USERRA. We see no error in the

decision of the Board in this case, however. In order to establish Board jurisdiction over

an appeal brought under the VEOA, an appellant must show, inter alia, that he or she

first sought administrative redress by filing a complaint with the Department of Labor.

See 5 U.S.C. § 3330a; Abrahamson v. Dep’t of Veterans Affairs, 94 M.S.P.R. 377

(2003). Before the Board, Mr. Young acknowledged that he had failed to exhaust his

remedies before the Department of Labor. That fact is dispositive of his VEOA claim.

      Turning to Mr. Young’s USERRA claim, we have stated that “an employee

making a USERRA claim of discrimination . . . bears the initial burden of showing by a

preponderance of the evidence that the employee’s military service was ‘a substantial or

motivating factor’ in the adverse employment action.” Sheehan v. Dep’t of the Navy, 240

F.3d 1009, 1013 (Fed. Cir. 2001).     In her initial decision, the AJ noted that the only

thing Mr. Young said as far as his USERRA claim was concerned was that the agency

knew he was a veteran because he had presented it with his DD214 form, which is his

record of military service. We agree that, standing alone, the fact that an employer




04-3302                                     3
knows a person is a veteran is not enough to make out a claim of USERRA

discrimination. The reason is that the mere fact of military service is not enough to

show that a veteran was discriminated against on account of that service.

       We have concluded that the Board did not err in dismissing Mr. Young’s VEOA

claim for lack of jurisdiction and in denying his USERRA claim for failure to state a claim

upon which relief could be granted. For the forgoing reasons, the final decision of the

Board is affirmed.




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