             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


                                        04-3318



                               CHARLES H. JOHNSON,

                                                       Petitioner,

                                            v.

                         DEPARTMENT OF THE AIR FORCE,

                                                       Respondent.



                           __________________________

                           DECIDED: December 16, 2004
                           __________________________



Before NEWMAN, MICHEL, and GAJARSA, Circuit Judges.

PER CURIAM.




      Charles H. Johnson petitions for review of the decision of the Merit Systems

Protection Board, Docket No. CH3443040008-I-1, dismissing his complaint that the

Department of the Air Force (the Agency) improperly failed to select him for a position of

laborer, WG-3502-03. We affirm the decision of the Board.
                                       BACKGROUND

       Mr. Johnson applied for a summer position as a laborer with the Agency in February

2003, by sending a resume and a letter from the Department of Veterans Affairs certifying

that he was receiving compensation for a 10% service connected disability. By letter of

March 12, 2003 the Agency declined to hire him, stating that he had failed to specify a job

title or announcement number. Mr. Johnson then appealed to the Board, alleging that the

Agency's action violated the Uniformed Services Employment and Reemployment Rights

Act of 1994 (USERRA) and the Veterans Employment Opportunities Act of 1998 (VEOA).

       The Board dismissed the appeal for lack of jurisdiction. In an Initial Decision of

January 6, 2004 the Administrative Judge (AJ) dismissed the USERRA cause of action for

failure to state a claim, finding that Mr. Johnson had not pleaded facts which, if proven,

would establish a violation of the USERRA. The AJ dismissed the VEOA cause of action

because Mr. Johnson had not first filed a claim with the Department of Labor, a prerequisite

to the Board's jurisdiction in VEOA claims. The full Board declined review, and this appeal

followed. Mr. Johnson appeals only the dismissal of the USERRA cause of action.

                                        DISCUSSION

       The Board generally lacks jurisdiction to review an agency's decision not to select an

applicant for a particular position. However, the USERRA provides that the Board may

hear such a case if it is based on a non-frivolous allegation that the applicant's prior military

service was a substantial or motivating factor in the agency's decision not to select the

applicant. See Sheehan v. Department of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001).

In order to state a claim the applicant must allege facts which, if proved, establish such

discrimination; the mere allegation of discrimination, without the allegation of specific


04-3318                                        2
supporting facts, is not sufficient. See Dick v. Department of Veterans Affairs, 290 F.3d

1356, 1361 (Fed. Cir. 2002).

       As the AJ correctly found, Mr. Johnson did not allege the necessary specific facts to

support a claim of discrimination based on prior military service. Mr. Johnson pointed only

to facts that he was not selected and that he is a disabled veteran. Standing alone, these

are not sufficient to support the USERRA claim.

       Mr. Johnson focuses in his appeal on the fact that the AJ decided the case based on

the parties' written submissions and did not grant his request for a hearing. However,

whether an appellant's allegations are sufficient to support his claim is a question of law

upon which a hearing need not be granted when there are no material factual issues to be

decided. See Carew v. Office of Pers. Mgmt., 878 F.2d 366, 368 (Fed. Cir. 1989) (hearing

not required in determining question of law). Mr. Johnson was notified by the AJ of the

infirmities of his case in an Order to Show Cause dated Oct. 31, 2003. The show cause

order specifically pointed out the need for specific allegations of fact in support of his

USERRA claim and provided an opportunity to respond. The AJ did not err in deciding the

case upon the written submissions.

       We agree with the Department of the Air Force that because Mr. Johnson did not

state a claim upon which relief could be granted, the Board lacked jurisdiction to hear his

USERRA claim. Accordingly the dismissal is affirmed.




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