       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  ERIC WILLIAMS,
                     Petitioner,

                           v.

        DEPARTMENT OF THE AIR FORCE,
                   Respondent.
             ______________________

                      2013-3026
                ______________________

   Petition for review of the Merit Systems Protection
Board in consolidated Nos. AT3443060118-B-1 and
AT3443060118-C-2.
                ______________________

                Decided: April 4, 2013
                ______________________

    ERIC WILLIAMS, of North Charleston, South Carolina,
pro se.

    MICHELLE R. MILBERG, Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and HAROLD D. LESTER, JR., Assistant Director.
                 ______________________
2                                ERIC WILLIAMS   v. AIR FORCE


    Before NEWMAN, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
    Eric Williams appeals from the final decision of the
Merit Systems Protection Board (“Board”) awarding a
remedy for the violation of Williams’s rights under the
Veterans Employment Opportunities Act of 1998, 5 U.S.C.
§§ 3330a-3330c (“VEOA”). Williams contends that the
remedy was inadequate. We affirm.
                      BACKGROUND
     In 2005, Williams applied to the Department of the
Air Force (“Air Force”) for the position of Contract Spe-
cialist, GS-1102-07, target GS-11 (the “GS-7 position”).
See Williams v. Dep’t of the Air Force, 407 F. App’x 421,
422 (Fed. Cir. 2010). Although he was a ten-point prefer-
ence eligible veteran, Williams was not selected for the
position. Id. Williams was subsequently called up to
active duty in Iraq in January 2006, and served until
February 2007. Id.
    Williams filed a complaint alleging that the Air Force
had violated his veterans’ preference rights under the
VEOA. Id. at 422. In June 2007, the Air Force stipulated
that the selection process it had used to fill the GS-7
position in 2005 was improper, and that Williams should
have been selected. Williams v. Dep’t of the Air Force,
2008 M.S.P.B. 91, ¶ 3. After protracted proceedings, the
agency offered Williams the GS-7 position on March 11,
2009. See Williams v. Dep’t of the Air Force, 2011 M.S.P.B.
19, ¶ 5. Williams rejected the offer, however, contending
that he was entitled to be hired at a higher grade level.
See Williams, 407 F. App’x at 422. The Board then dis-
missed Williams’s claim for employment as moot in view
of Williams’s refusal to accept the GS-7 job offer. The
Board remanded the question of Williams’s entitlement to
compensation for lost wages and benefits. Williams v.
Dep’t of the Air Force, 111 M.S.P.R. 356, 357 (M.S.P.B.
2009).
    In November 2011, pursuant to the remand, the ad-
 ERIC WILLIAMS   v. AIR FORCE                           3
ministrative judge (“AJ”) issued an initial decision award-
ing Williams lost wages and benefits from November 14,
2005 (the date on which the individuals selected in place
of Williams began working) through March 11, 2009 (the
date on which the agency offered him the GS-7 position).
See Williams v. Dep’t of the Air Force, No. AT-3443-06-
0118-B-1 (M.S.P.B. Nov. 7, 2011) (initial decision). To
determine the amount of lost wages, the AJ constructed a
hypothetical employment history. Because Williams was
called to active duty in the middle of the period of hypo-
thetical employment, the AJ was obligated to take into
account when constructing this history the Uniformed
Services Employment and Reemployment Rights Act of
1994 (“USERRA”), 38 U.S.C. §§ 4301-35, which requires
that a returning veteran be treated comparably with
coworkers who remained continuously employed.
    Although Williams would have begun his employment
in November 2005 at GS-7, he would have been eligible
for promotion to GS-9 after working for 52 weeks at GS-7
and completing 1,696 hours of training, and eligible for
further promotion to GS-11 after 52 weeks at GS-9 and
another 1,696 hours of training. The AJ assumed that
Williams would have completed his training-hours re-
quirement as promptly as possible while at the agency.
The AJ apparently found that Williams could not have
received the necessary training while away on active duty
from January 2006 to February 2007. 1 The AJ therefore
concluded that Williams would have been eligible for
promotion to GS-9 in December 2007, after one year of
working at the agency, and eligible for further promotion
in January or February of 2009. 2


   1    On review of the AJ’s decision, the Board noted
that Williams “does [not] claim that he obtained [the
necessary] training . . . while he was performing military
service.” Williams v. Dep’t of the Air Force, Nos. AT-3443-
06-0118-B-1, AT-3443-06-0118-C-2, slip op. at 3 (M.S.P.B.
Oct. 26, 2012).
   2    Although the AJ found that Williams would have
been “eligible for promotion to . . . GS-9 in approximately
4                                ERIC WILLIAMS   v. AIR FORCE
     Williams sought review before the Board, challeng-
ing both the sufficiency of the March 2009 job offer and
the AJ’s calculation of damages, and the Board denied his
petition. Williams v. Dep’t of the Air Force, Nos. AT-3443-
06-0118-B-1, AT-3443-06-0118-C-2 (M.S.P.B. Oct. 26,
2012) (final order). Williams then appealed to this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
    We review the Board’s decision to determine whether
it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”; obtained “without
observance of procedure required by law”; or “unsupport-
ed by substantial evidence.” 5 U.S.C. § 706(2); see Mar-
shall v. Dep’t of Health & Human Servs., 587 F.3d 1310,
1314 (Fed. Cir. 2009).
    Williams first challenges the Board’s determination
that the Air Force’s March 2009 offer of the GS-7 position
mooted his claim for future employment. Williams asserts
that he “was entitled to the GS-11 . . . position [in March
2009 and] not the GS-7 . . . position.” Williams Br. 4-5. He
bases his argument on an alleged “discrepancy” between
the job offer and the back pay award. Id. at 5.
    The VEOA provides that if the Board “determines
that an agency has violated a [preference] right . . . , the
Board . . . shall order the agency to comply with [the
preference] provisions.” 5 U.S.C. § 3330c(a) (emphasis
added). We have held under different facts that “the
appropriate remedy [for a VEOA violation] is for [the
veteran] to be placed in the job for which he applied.”
Marshall, 587 F.3d at 1317 (emphasis added). In this
case, there is no dispute that the only “job for which
[Williams] applied” was the GS-7 position. We see no


December of 2007,” he ultimately concluded that Williams
“would have been promoted to the grade of GS-9, Step 1,
in January or February of 2008.” Williams, No. AT-3443-
06-0118-B-1, slip op. at 5 (M.S.P.B. Nov. 7, 2011). The AJ
did not explain this additional one- to two-month delay,
but Williams does not challenge it specifically on appeal.
 ERIC WILLIAMS   v. AIR FORCE                              5
error in the Board’s mootness determination.
    Williams also asserts that in calculating his back pay
award, the Board failed to take into account his rights
under USERRA with regard to his period of active duty
service during the hypothetical back pay period. In par-
ticular, he asserts that the Board erred by failing to count
that thirteen-month period towards the training-hours
requirement for promotion to GS-9.
    USERRA provides that a returning veteran who has
been absent for more than 90 days is entitled to be
reemployed “in the position of employment in which the
person would have been employed if the [veteran’s] con-
tinuous employment . . . had not been interrupted . . . , or
a position of like seniority, status and pay, the duties of
which the person is qualified to perform.” 38 U.S.C.
§ 4313(a)(2)(A). The Supreme Court has interpreted the
predecessor to USERRA as entitling a veteran to a so-
called “escalator” promotion only if the promotion “‘de-
pend[s] simply on seniority,’” and not on “‘fitness and
ability and the exercise of a discriminating managerial
choice.’” Tilton v. Mo. Pac. R.R. Co., 376 U.S. 169, 179
(1964) (quoting McKinney v. Mo.-Kan.-Tex. R.R. Co., 357
U.S. 265 (1958)); see also Leite v. Dep’t of the Army, 2008
M.S.P.B. 141, ¶ 10 (applying Tilton to a USERRA claim).
In other words, the veteran must demonstrate with
“reasonable certainty . . . that he would have enjoyed
advancement” at the earlier time. Tilton, 376 U.S. at 180;
see also 20 C.F.R. § 1002.191. The principle that the
veteran is only entitled to receive an “escalator” promo-
tion if he or she is qualified for the new position is rein-
forced by subsection 4313(a)(2)(B) of USERRA, which
allows the employer to place the returning veteran in his
or her original position “if the [veteran] is not qualified to
perform the duties of [the escalator position] after reason-
able efforts by the employer to qualify the [veteran].” See
38 U.S.C. § 4313(a)(2)(B).
    In order to become eligible for each successive promo-
tion, Williams would have needed to complete successfully
1,696 hours of training, consisting of “a combination of ‘on
the job’ training and classroom training.” Williams, No.
6                                ERIC WILLIAMS   v. AIR FORCE
  AT-3443-06-0118-B-1, slip op. at 3 & n.1 (M.S.P.B. Nov.
7, 2011). This training-hours requirement was “independ-
ent” of the time-in-grade requirement. Id. at 4. Because
the promotion to GS-9 depended on successful completion
of this training requirement, independent of the time-in-
grade requirement, Williams has not demonstrated that,
had he been hired and had he not been called to active
duty, he would have received the promotion to GS-9 in
November 2006 based “‘simply on seniority.’” See Tilton,
376 U.S. at 179. Furthermore, Williams has not refuted
the agency’s showing that he could not have been “quali-
fied to perform the duties of” the GS-9 position, see 38
U.S.C. § 4313(a)(2)(B), until he completed his training
requirement, or that it would have taken him about 44
weeks longer to complete that training requirement after
his return from active duty. 3
    Substantial evidence therefore supports the Board’s
conclusion, for purposes of calculating a back pay award,
that Williams would have been entitled to a promotion to
GS-9 in December 2007, and to a subsequent promotion to
GS-11 in January or February of 2009.
    We have considered Williams’s other arguments, and
find them to be without merit.
                      AFFIRMED
                         COSTS
    No costs.


    3   Williams cites section 4316(a) of title 38, which
provides that a returning veteran is “entitled to the
seniority and other rights and benefits determined by
seniority that the [veteran] had on the date of the com-
mencement of [military] service . . . plus the additional
seniority and rights and benefits that [the veteran] would
have attained if [he or she] had remained continuously
employed.” 38 U.S.C. § 4316(a). Since his appeal concerns
promotions, rather than seniority or “rights and benefits
determined by seniority,” section 4313 is the relevant
section in this case.
