NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3319 DAVID DEAN, Petitioner,

v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.

David Dean , of Lugoff, South Carolina, pro se. David S. Silverbrand , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for respondent. With him on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director. Of counsel was Margaret Plank , Office of General Counsel, Consumer Pr oducts Safety Commission, of Bethesda, Maryland. Appealed from: Merit Systems Protection BoardNOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3319 DAVID DEAN, Petitioner,

v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent. Petition for review of the Merit Systems Protection Board in AT -3443-08-0345-I-1.

______ ____________________ DECIDED: December 8, 2008

______ ____________________ Before LOURIE, CLEVENGER, and LINN, Circuit Judges

. PER CURIAM. David Dean (“Dean”) seeks review of a final decision of the Merit Systems Protection Board (“Board”), which denied his request for corrective action based on his claim that the Consumer Product Safety Commission (“CPSC”) violated the Uniformed Services and Reemployment Rights Act of 1994 (“USERRA”) when it declined to select him for the position of Product Safety Inve stigator. Because substantial evidence supports the Board’s determination that Dean’s status as a veteran was not a substantial or motivating factor in his non-selection, we affirm

. Dean is a veteran of the United St ates Army. Between 2004 and 2007, he submitted several applications to the CPSC in response to public notices announcing vacancies for the position of Product Safety Investigator. When he was not selected forany of the positions, he filed a challenge with the Board all eging that his non-selection was a result of discrimination under USE RRA. On June 13, 2008, the Board issued a decision rejecting Dean’s appeal. Dean v. Consumer Prod. Safety Comm’n , No. AT3443-08-0345-I-1 (M.S.P.B. Ju ne 13, 2008) (“Decision ”). It concluded that Dean had failed to discharge his burden of showing by a preponderance of the evidence that his status as a veteran was a substantial or moti vating factor in the CP SC’s decision not to select him for any of the Product Safety In vestigator positions at issue. Decision at 8. Dean timely appealed. We have jurisd iction under 28 U.S.C. § 1295(a)(9). The scope of our review of Board decisions is defined and limited by statute. See 5 U.S.C. § 7703(c). We must affirm the B oard’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. ” Hayes v. Dep’t of the Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). Dean, as the petitioner, bears the burden of demonstrating error in the Board’s decision. Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998). In order to prevail on his claim of discrimination under USERRA, Dean must show by a preponderance of the evidence that his prior militar y service or his status as a former military service member was a subst antial or motivating factor in the CPSC’s decision not to select him for the position. The Board conc luded that Dean had failed to discharge this burden. First, the Board fo und that the 28 and 6-y ear periods of time which had passed between Dean’s active and i nactive military services, respectively, and his application to the CPSC were “too remote to suggest that his former status as

2008-3319 22008-3319 3 a[] . . . military service mem ber played any role in the [CPSC’s] decision not to select him.” Decision at 8-9. Second, the Board found t hat even though he was not ultimately selected, the CPSC’s actions of forwardi ng his name for further consideration as a qualified candidate on both the competitive and merit promotion hi ring certificates suggested that his former military service was not a substantial or motivating factor in his non-selection, and was inconsistent with his claim that he was discriminated against on the basis of his status as a veteran. Id. at 9. Finally, the Board found no evidence indicative of general hostility by the CPSC to ward former military service members. Id. On appeal, Dean makes a number of allegati ons related to his contention that the CPSC’s actions illustrate a pattern of discr imination against veterans, including that “[t]he CPSC ha[s] not hired or intervie wed a veteran since before 2003 for a Product Safety Investigator job” and that the Board “[i] gnored prohibited personnel practices by agency officials.” Pet’r’s Informal Br. ¶ 2. Dean has not, however, substantiated these allegations with record facts. Moreover, Dean has failed to demonstrate error in the Board’s determination that his status as a veteran was not a substantial or motivating factor in the CPSC’s determinat ion not to select him for the position of Product Safety Investigator. Because the Board’s decision is supported by subs tantial evidence, we must affirm

. COSTS No costs.