                      NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                      2008-3302

                                RICHARD A. BECKER,

                                                   Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                   Respondent.


      Richard A. Becker, of Coram, New York, pro se.

      Stephanie M. Conley, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Jeffrey A. Gauger, Attorney.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-3302

                                RICHARD A. BECKER,

                                                                    Petitioner,

                                          v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                                Respondent.

  Petition for review of the Merit Systems Protection Board in NY-3443-08-0109-I-1.

                           __________________________

                           DECIDED: April 1, 2009
                           __________________________


Before MAYER, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

      Richard Becker appeals the decision of the Merit Systems Protection Board,

which dismissed his appeal of the Department of Veterans Affairs decision not to select

him for the positions of GS-7/9 Inventory Management Specialist or GS-6 Nursing

Assistant for lack of jurisdiction. Becker v. Dep’t Veterans Affairs, No. NY-3443-08-

0109-I-1 (M.S.P.B. June 26, 2008).      We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9) (2000).   Because the board correctly determined that Becker has not

exhausted his administrative remedies before the Department of Labor, we affirm.

      Becker charges that the Department of Veterans Affairs violated the Uniformed

Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301-
4333, and the Veterans Employment Opportunity Act (VEOA), 5 U.S.C. § 3330a, when

the department did not select him for the positions of Inventory Management Specialist

or Nursing Assistant.     He was told that he was qualified and was referred for

consideration but not selected for the Inventory Management Specialist position. For

the Nursing Assistant position, he was told that he was qualified but did not rank high

enough to be referred for consideration. He alleged that less qualified non-veterans

were chosen over him for at least the Inventory Management Specialist position. In his

letter of appeal to the board, he averred that he had filed complaints at the Department

of Labor for both the USERRA and VEOA claims. The board separated the claims into

two cases and this is the appeal of the USERRA claim.

       This court must affirm decisions of the board unless the decision is (1) arbitrary,

capricious, 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. 5 U.S.C. § 7703(c) (2000). We review a ruling

that the board lacks jurisdiction de novo.

       A person may file a USERRA complaint against a federal executive agency

directly with the Merit Systems Protection Board if that person has chosen not to apply

to the Secretary of Labor for assistance. If the person does apply to the Secretary for

assistance, he may only file a complaint with the board after receiving notification from

the Secretary that the department was unable to resolve the complaint, the results of

the department’s investigation, and the person’s entitlement to proceed to the board.

See 38 U.S.C. §§ 4324(b), 4322(a), and 4322(e) (2000). If these procedures are not

followed, the board does not have jurisdiction to hear the complaint.       In this case,




2008-3302                                    2
substantial evidence exists that Becker applied to the Secretary for assistance with his

complaint. As the board found, on December 22, 2007, Becker wrote to the Secretary

of Labor requesting that she address his complaints that he had not been hired for the

positions.   Becker however has not produced a notification that the Secretary has

reviewed but was unable to resolve his complaint as the board ordered him to do to

show jurisdiction.    Instead, he complained in his appeal to the board that the

Department of Labor “never replies.”         Therefore, he has not complied with the

procedures set forth in 38 U.S.C. §§ 4324(b), 4322(a), and 4322(e), and the board

correctly determined that it lacked jurisdiction to hear his case.




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