       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

        HAROLD ARNALDO HERNANDEZ,
                 Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2016-1934
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT-4324-15-0765-I-1.
                ______________________

              Decided: October 14, 2016
               ______________________

   HAROLD ARNALDO HERNANDEZ, Tampa, FL, pro se.

    KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
                 ______________________

  Before MOORE, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
2                                        HERNANDEZ   v. MSPB



    Harold Arnaldo Hernandez appeals from a Merit
Systems Protection Board (“Board”) decision dismissing
his appeal for lack of jurisdiction. We affirm the dismis-
sal of Mr. Hernandez’s appeal.
                       BACKGROUND
    Mr. Hernandez entered the Federal Bureau of Inves-
tigation (“agency”) as a Special Agent on August 10, 2014.
Prior to his agency employment, he served in the United
States Army and in a volunteer position with the United
States Civil Air Patrol. On March 19, 2015, the agency
terminated him “for failure to meet the suitability stand-
ards.” On July 24, 2015, he appealed his termination to
the Board. He argued the agency did not use proper
procedures when it removed him from federal service. He
also alleged wrongful termination based on racial discrim-
ination, in violation of 5 U.S.C. § 2302, and discrimination
based on his prior military service, in violation of the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”). 1
    In the Initial Decision, the Administrative Judge
(“AJ”) dismissed Mr. Hernandez’s appeal for lack of
jurisdiction. The AJ concluded that the Board’s jurisdic-
tion over USERRA claims is based on 38 U.S.C. §§ 4324(b)
and (c) and that the agency was excluded from the defini-
tion of “Federal executive agency” for the purpose of
appealing a USERRA claim to the Board. Mr. Hernandez
petitioned for review, and the Board affirmed the Initial
Decision. Mr. Hernandez appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).



    1  The Administrative Judge docketed and processed
Mr. Hernandez’s USERRA claim as a separate appeal,
which is addressed in this case. Mr. Hernandez’s other
claims are addressed in Case No. AT-3443-15-0764-I-1
(companion Case No. 16-1933 in this court).
HERNANDEZ   v. MSPB                                         3



                        DISCUSSION
     Our review of the Board’s decision is limited by stat-
ute. We must affirm a final decision of the Board unless
it is arbitrary, capricious, an abuse of discretion, or oth-
erwise 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). The Board’s decision to dismiss for
lack of jurisdiction presents an issue of law that we re-
view de novo. Campion v. Merit Sys. Prot. Bd., 326 F.3d
1210, 1212 (Fed. Cir. 2003). To succeed on appeal,
Mr. Hernandez must nonfrivolously allege that the Board
has     jurisdiction     over    his   USERRA         claim.
5 C.F.R. § 1201.57(b).
    A petitioner alleging a USERRA violation may bring a
complaint against a “Federal executive agency” directly to
the Board pursuant to 38 U.S.C. § 4324(b). Yates v. Merit
Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
“Federal executive agency” is defined as “any Executive
agency . . . other than an agency referred to in section
2302(a)(2)(C)(ii) of title 5.” 38 U.S.C. § 4303(5) (emphasis
added). The Federal Bureau of Investigation is one such
agency referred to in section 2302(a)(2)(C)(ii) of title 5 and
is therefore excluded from the definition of “Federal
executive agency” for purposes of the statute.
5 U.S.C. § 2302(a)(2)(C)(ii)(I).
    We therefore hold the Board did not commit error in
dismissing Mr. Hernandez’s USERRA claim for lack of
jurisdiction.
   We have considered Mr. Hernandez’s remaining
arguments and find them unpersuasive.
                        CONCLUSION
     For the foregoing reasons, the decision of the Board is
affirmed.
4                          HERNANDEZ   v. MSPB



                AFFIRMED
                 COSTS
    No costs.
