Young v. Department of Army ( 2004 )

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
04-3302
MICHAEL S. YOUNG,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
DECIDED: November 9, 2004
__________________________
Before MICHEL, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.
PER CURIAM.
DECISION
Michael S. Young petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that (i) dismissed for lack of jurisdiction his claim that his
non-selection by the Department of the Army (“agency”) for appointment to the position
of Logistics Management Specialist, GS-0346-12, was in violation of his rights under the
Veterans Employment Opportunities Act of 1996 (“VEOA”), 5 U.S.C. § 3330a; and (ii)
denied for failure to state a claim upon which relief could be granted his claim that his
non-selection was the result of discrimination against him based upon his status as a
veteran, in violation of the Uniformed Services Employment and Reemployment Rights
Act (“USERRA”), 38 U.S.C. § 4311. Young v. Dep’t of the Army, No. CH-3443-03-0709-
I-1 (Mar. 30, 2004). We affirm.
DISCUSSION
I.
After the agency failed to select Mr. Young for the Logistics Management
Specialist position, he appealed to the Board. In his appeal, he alleged that his non-
selection violated his rights under the VEOA. He also alleged that his non-selection
was the result of discrimination prohibited by USERRA, 38 U.S.C. § 4311.
In an initial decision dated September 9, 2003, the administrative judge (“AJ”) to
whom the case was assigned dismissed Mr. Young’s VEOA claim for lack of jurisdiction
and denied his USERRA claim for failure to state a claim upon which relief could be
granted. Young v. Dep’t of the Army, No CH-3443-03-0709-I-1 (Sep. 9, 2003). The AJ
ruled that the Board lacked jurisdiction to consider Mr. Young’s VEOA claim because he
had failed to exhaust his remedies before the Department of Labor. As far as Mr.
Young’s USERRA claim was concerned, the AJ ruled that Mr. Young had failed to
allege facts which, if true, would support his allegations of discrimination.1 The AJ’s
initial decision became the final decision of the Board on March 30, 2004, after the
Board dismissed Mr. Young’s petition for review for failure to meet the criteria for review
set forth in 5 C.F.R. § 1201.115(d). This appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
1
In her initial decision, the AJ pointed out that the agency presented
evidence that it cancelled the vacancy announcement for the Logistics Management
Specialist position without making a selection.
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II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise 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); see Kewley v. Dep’t of Health
& Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
On appeal, Mr. Young asserts that his VEOA rights were violated and that the
agency discriminated against him in violation of USERRA. We see no error in the
decision of the Board in this case, however. In order to establish Board jurisdiction over
an appeal brought under the VEOA, an appellant must show, inter alia, that he or she
first sought administrative redress by filing a complaint with the Department of Labor.
See 5 U.S.C. § 3330a; Abrahamson v. Dep’t of Veterans Affairs, 94 M.S.P.R. 377(2003). Before the Board, Mr. Young acknowledged that he had failed to exhaust his
remedies before the Department of Labor. That fact is dispositive of his VEOA claim.
Turning to Mr. Young’s USERRA claim, we have stated that “an employee
making a USERRA claim of discrimination . . . bears the initial burden of showing by a
preponderance of the evidence that the employee’s military service was ‘a substantial or
motivating factor’ in the adverse employment action.” Sheehan v. Dep’t of the Navy, 240
F.3d 1009, 1013 (Fed. Cir. 2001). In her initial decision, the AJ noted that the only
thing Mr. Young said as far as his USERRA claim was concerned was that the agency
knew he was a veteran because he had presented it with his DD214 form, which is his
record of military service. We agree that, standing alone, the fact that an employer
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knows a person is a veteran is not enough to make out a claim of USERRA
discrimination. The reason is that the mere fact of military service is not enough to
show that a veteran was discriminated against on account of that service.
We have concluded that the Board did not err in dismissing Mr. Young’s VEOA
claim for lack of jurisdiction and in denying his USERRA claim for failure to state a claim
upon which relief could be granted. For the forgoing reasons, the final decision of the
Board is affirmed.
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