       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              JOHN PAUL JONES, III,
                    Petitioner

                           v.

     DEPARTMENT OF HEALTH AND HUMAN
                 SERVICES,
                  Respondent
            ______________________

                      2017-1055
                ______________________

   Petition for review of the Merit Systems Protection
Board in Nos. DE-4324-15-0469-I-1, DE-4324-15-0475-I-1.
                ______________________

                 Decided: April 6, 2017
                ______________________

   JOHN PAUL JONES, III, Albuquerque, NM, pro se.

    AARON WOODWARD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER; ROBERT L. THOMAS, Office of the General
Counsel, United States Department of Health and Human
Services, Atlanta, GA.
                 ______________________
2                                               JONES   v. HHS




    Before DYK, BRYSON, and CHEN, Circuit Judges.
PER CURIAM.
    John Paul Jones, III, petitions for review of a final de-
cision of the Merit Systems Protection Board (“Board”).
Jones was not selected for four Department of Health and
Human Services (“HHS”) positions. He petitioned the
Board for corrective action, alleging that HHS had en-
gaged in discrimination in violation of the Uniformed
Services Employment and Reemployment Rights Act of
1994 (“USERRA”), and that HHS had improperly declined
to afford him veteran hiring preferences in violation of the
Veterans Employment Opportunity Act of 1998 (“VEOA”).
The Board denied Jones’s petition. We affirm.
                       BACKGROUND
    Jones is a Vietnam War veteran who applied to four
HHS vacancies, announced as “Public Health Advisor[s]
with the National Center for Emerging and Zoonotic
Infectious Diseases, . . . Quarantine and Border Health
Services Branch.” J.A. 10. These positions’ duties includ-
ed “directing strategies designed to protect the United
States from communicable disease, analyzing data to
evaluate . . . such programs, . . . providing expert quaran-
tine advice, . . . [and] serving as the team leader of the
assigned . . . Quarantine Station.” J.A. 11. Jones, who
did not have a medical degree, was not selected.
    Jones sought corrective action from the Board, alleg-
ing that his non-selection was due to his military service
and that HHS had engaged in discrimination and retalia-
tion in violation of USERRA. The Administrative Judge
(“AJ”) found that, although HHS found Jones to be quali-
fied for the position, the HHS selecting official “credibly
testified about his respect for members of the uniformed
service, . . . his recent hiring of 8 veterans, [and the fact
JONES   v. HHS                                             3



that] one [of the four candidates ultimately selected] was
a member of the uniformed service in the commissioned
corps of the public health service.” J.A. 18. The AJ also
found that HHS did not select Jones due to his “lack of
formal education or formal experience in the specific areas
of quarantine, communicable disease prevention and
control, and/or bioterror.” J.A. 16. The AJ therefore held
that Jones “did not prove his military service was a sub-
stantial or motivating factor in his non-selection,” J.A. 14,
and that Jones would not have been selected for legiti-
mate, non-discriminatory reasons regardless of his mili-
tary service. The AJ also rejected Jones’s VEOA claim
because veteran preferences were not applicable to the
four hiring decisions at issue. Jones petitioned for review
of this initial decision, which the Board denied. The
Board affirmed the AJ’s initial decision as its final deci-
sion.
    Jones petitions for review. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
     We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
    In his petition for review, Jones argues that his non-
selection violated USERRA and VEOA. We find no error
in the Board’s conclusions.
    In USERRA discrimination claims, the appellant
“bear[s] the initial burden of showing by a preponderance
of the evidence that . . . military service was a substantial
or motivating factor in the adverse employment action.”
Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir.
4                                              JONES   v. HHS



2001) (quotation marks omitted). After this initial show-
ing, “the employer then has the opportunity to come
forward with evidence to show, by a preponderance of the
evidence, that the employer would have taken the adverse
action anyway, for a valid reason.” Id.
   Here, the Board found that “the appellant did not meet
his burden of showing that his military service was a
motivating or substantial factor in his non-selection.”
J.A. 15. The Board found that HHS hired individuals
“consistent with the needs for the position and the appel-
lant’s lack of formal education or formal experience in the
specific areas” that the position required. J.A. 16. In
particular, these positions needed to be filled “in the
midst of the Ebola crisis . . . [during which] [t]he agency
needed . . . individuals who could hit the ground running.”
J.A. 17.
    This court appreciates that “[b]ecause employers rare-
ly concede an improper motivation for their employment
actions, . . . [the] burden to establish that . . . military
service . . . was a motive in the challenged action [may be
met] by submitting evidence from which such a motive
may be fairly inferred.” McMillan v. Dep’t of Justice, 812
F.3d 1364, 1372 (Fed. Cir. 2016) (emphasis added).
However, before the Board and on appeal, Jones provided
no direct evidence that his military service played a
“substantial or motivating factor” in his non-selection for
these four positions. Instead, Jones alleges that there had
been odious emails from an HHS employee airing nega-
tive views about veterans in a different matter, that HHS
had pre-selected candidates for other positions in the
past, and that HHS employs fewer veterans compared to
other federal agencies. However, none of these allega-
tions is linked to the HHS selection decisions here, and
substantial evidence supports the Board’s conclusion that
Jones had not established that his military service was a
“substantial or motivating factor” in his non-selection.
JONES   v. HHS                                          5



   Because Jones was “not nearly as qualified as those
who were selected,” J.A. 17, the AJ also found that “the
appellant would not have been selected, based on legiti-
mate non-discriminatory reasons, regardless of . . . the
appellant’s military service.” J.A. 20. Substantial evi-
dence supports the Board’s conclusions in this respect as
well.
    Jones has brought numerous prior suits challenging
HHS hiring decisions, and alleges here that his non-
selection was retaliation for bringing those cases. Sub-
stantial evidence supports the Board’s finding that the
HHS actions taken in this case were not in retaliation.
   Finally, Jones alleges that his VEOA rights were vio-
lated because the selecting official “simply ignore[d] the
legal preference that veterans are due.” Appellant Br. 5.
Veteran preferences “appl[y] only in the open competition
examination process and not in the merit appointment
process.” Joseph v. FTC, 505 F.3d 1380, 1383 (Fed. Cir.
2007). Here, the four positions were filled under the
merit process, which “guaranteed veterans only a right to
apply and an opportunity to compete for such positions.”
Id. The Board found that the “appellant was allowed to
compete for the positions.” J.A. 22. Jones does not allege
otherwise. Therefore, we conclude that the appellant’s
VEOA claims are groundless.
  We have considered the appellant’s remaining argu-
ments and find them without merit.
                        AFFIRMED
                           COSTS
   No costs.
