          NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
                __________________________

               LEONARD P. MACHULAS,
                     Petitioner,
                             v.
          DEPARTMENT OF THE AIR FORCE,
                  Respondent.
                __________________________

                        2010-3185
                __________________________

   Petition for review of the Merit Systems Protection
Board in Docket No. PH432410-0200-I-1.
              ___________________________

                 Decided: January 19, 2011
                ___________________________

      LEONARD P. MACHULAS, of Bloomingdale, Georgia, pro
se.

    MICHAEL D. SNYDER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KENNETH M. DINTZER,
Assistant Director.
                __________________________
MACHULAS   v. AIR FORCE                                  2


Before RADER, Chief Judge, GAJARSA, and PROST, Circuit
                       Judges.
PER CURIAM.
    This case arises from the Merit Systems Protection
Board’s (“Board”) denial of Leonard P. Machulas’ petition
for review of the administrative judge’s (“AJ”) decision,
which found that Mr. Machulas had failed to demonstrate
that the Department of the Air Force (the “agency”)
violated the Uniformed Services Employment and Reem-
ployment Rights Act of 1994 (the “USERRA”), 38 U.S.C.
§§ 4031-4333 (2006), in failing to select Mr. Machulas for
a particular employment opportunity. For the reasons
discussed below, we affirm the Board’s decision.
                          BACKGROUND
    Mr. Machulas’ claim arises under the USERRA, which
“prohibits discrimination in employment on the basis of
military service.” Sheehan v. Dep’t of Navy, 240 F.3d
1009, 1012 (Fed. Cir. 2001). Under 38 U.S.C. § 4311(a), “a
person who is a member of . . . a uniformed service shall
not be denied . . . promotion, or any benefit of employment
by an employer on the basis of that membership . . . .”
    From October 28, 1990, until September 3, 1994, Mr.
Machulas was enlisted in the Air Force Reserve at
McGuire Air Force Base in New Jersey. Machulas v.
Dep’t of Air Force, Docket No. PH-4324-10-0200-I-1, slip
op. at 2 (M.S.P.B. Sept. 1, 2010) (“Final Decision”). When
he began working in 1990, he was a W-9 Air Reserve
Technician (“ART”). Machulas v. Dep’t of Air Force,
Docket No. PH-4324-10-0200-I-1, slip op. at 2 (M.S.P.B.
May 17, 2010) (“Initial Decision”). Soon thereafter, Mr.
Machulas was placed on a seventeen month detail, ending
in April 1992, during which he served as in a WS-11
supervisory ART position as an Aircraft Mechanic Fore-
3                                    MACHULAS   v. AIR FORCE


man. Final Decision at 2. While Mr. Machulas was on
the detail, the agency announced six vacancies in perma-
nent WS-11 supervisory ART positions. Initial Decision
at 2. Mr. Machulas competed for one of the vacancies but
was not selected. Id. When his detail ended in April
1992, he was transferred to a non-ART Aircraft Mechanic
Foreman position at the same grade and pay as his previ-
ous position as a WS-9 ART, where he remained until his
retirement. Id.
     Mr. Machulas claims that the agency violated the
USERRA when it did not select him for a permanent WS-
11 ART position. 1 An employer violates the USERRA “if
the person’s membership . . . or obligation for service in
the uniformed services is a motivating factor in the em-
ployer’s action . . . ”, 38 U.S.C. § 4311(c), which, in this
case, would be the agency’s failure to award Mr. Machulas
the permanent WS-11 ART position. Mr. Machulas
initially filed a complaint concerning this claim with the
Office of Special Counsel (“OSC”) in 2009.        The OSC
denied Mr. Machulas’ claim, and he then appealed the
OSC’s decision to the Board pursuant to 38 U.S.C. §
4324(b)(3).
    Mr. Machulas’ claim was heard before an AJ, who
found that the agency did not violate the USERRA be-
cause Mr. Machulas failed to prove that his prior military
service was a “substantial or motivating factor” in the
agency’s decision not to select him for a permanent WS-11
supervisory ART position. Initial Decision at 4 (citations

    1   Although Mr. Machulas’ employment ended in
September 1994, one month prior to the October 1994
enactment of USERRA, 38 U.S.C. § 4324(c)(1) does not
bar his claim because, as a reservist, he would have been
entitled to bring a claim under 38 U.S.C. § 2021(b)(3), the
USERRA’s predecessor. See Fernandez v. Dep’t of Army,
234 F.3d 553, 556-57 (Fed. Cir. 2000).
MACHULAS   v. AIR FORCE                                    4


omitted). The AJ further found that Mr. Machulas “prof-
fered no evidence supporting his contention that his
military service or status was in any way related to the
agency’s decision to not select him for the position.” Id. at
4.
    Mr. Machulas then filed a petition for review request-
ing that the Board reconsider the AJ’s initial decision.
Final Decision at 1. The Board grants petitions for review
only where the claimant presents new or previously
unavailable evidence or the AJ makes an error interpret-
ing a law or regulation. Id. The Board found that Mr.
Machulas failed to prove either. Id. at 2-3. Accordingly
the Board denied Mr. Machulas’ petition for review and
the AJ’s initial decision became final. Id. at 3. Mr. Ma-
chulas timely filed an appeal to this court. We have
jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
                   STANDARD OF REVIEW
    Our review of the Board’s decisions is limited under 5
U.S.C. § 7703(c). The Board’s holding must be affirmed
unless it is found to be: (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); Barrett v. Soc.
Sec. Admin., 309 F.3d 781, 785 (Fed. Cir. 2002).
                          DISCUSSION
    To succeed in an action brought under the USERRA,
the employee has “the initial burden of showing by a
preponderance of the evidence that the employee’s mili-
tary service was a substantial and motivating factor in
the adverse employment action.” Sheehan, 240 F.3d at
1013 (citation omitted) (internal quotation marks omit-
5                                   MACHULAS   v. AIR FORCE


ted). The Board did not err in finding that Mr. Machulas
failed to carry this burden and his arguments to the
contrary are without merit 2 .
    Mr. Machulas claims that the Board should have con-
sidered, in addition to the agency’s failure to select Mr.
Machulas for the permanent WS-11 supervisory ART
position, the agency’s failure to place Mr. Machulas in
another ART position. Mr. Machulas, however, offers no
evidence as to why any employment opportunity was
denied him as a result of his employment in the reserves.
Indeed, the AJ found that military status was a positive
attribute of those individuals seeking employment in a
permanent WS-11 supervisory ART position. Initial
Decision at 4. Instead of attempting to establish how the
agency discriminated against him because of his position
as a reservist, Mr. Machulas makes several irrelevant,
conclusory allegations. This is simply not enough to
establish by a preponderance of the evidence that his
military position was a “substantial and motivating
factor” in denying him employment.
                      CONCLUSION
    Accordingly, because Mr. Machulas did not carry his
burden under the USERRA, the Board’s decision is af-
firmed.
    No Costs.




    2   Mr. Machulas also claims that the Board applied
the wrong law. He lists several non-existent regulations
and 38 U.S.C. § 4311, which is applicable law and was
correctly applied by the Board.
