NOTE: This disposition is nonprecedential 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 Litigation 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 Reemployment 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 permanent 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 previous 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 WS11 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 employer’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 because 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 “proffered 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 requesting 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 interpreting 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. Machulas 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 military 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 merit2. 

Mr. Machulas claims that the Board should have considered, 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 affirmed. 

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.