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 Opportuni ties Act of 1996 (“VEOA”), 5 U.S.C. § 3330a; and (ii) denied for failure to state a claim upon whic h relief could be granted his claim that his non-selection was the result of discrimination against him based upon his status as aveteran, in violation of t he Uniformed Services Employ ment and Reemploy ment 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 Boar d. In his appeal, he alleged t hat his nonselection v i olated his rights under the VEOA. He als o a lleged t h at his non-selection was the result of discrimination prohi bited by USERRA, 38 U.S.C. § 4311. In an initial decis ion dat ed September 9, 2003, the administrative judge (“AJ”) to whom the case was assigned di s m issed Mr. Young’s VEOA cl aim for lack of j u risdiction and denied his USERRA claim for failure t o state a c l aim 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 c onsider Mr. Young’s VEOA claim because he had failed to exhaust his remedies before t he Department of Labor. As far as Mr. Young’s USERRA claim was concerned, the AJ ruled that Mr. Young had failed t o allege fact s which, if true, would supp ort his allegations of dis c rimination. 1 The AJ’s initial decis i on became the final decis ion of the Board on March 30, 2004, after the Board dismissed Mr. Young’s petition for review fo r failure to meet the criteria f o r review set forth i n 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 decis ion, the AJ poi nted out that the agency presented evidenc e that it cancelled the vacan cy announcement for the Logistics Management Specialist position without making a selection.

04-3302 2I I

. Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by subst antial ev idence. 5 U.S.C. § 7703(c); see Ke wley v. De p’t of Healt h & 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 dis c riminated against him in violat i on of USERRA. We see no error in the decision of the Board in this ca se, howev er. In order to establish Board jurisdiction over an appeal brought under the VEOA, an appellant must show, in ter alia , that he or she first sought administrative redress by fili ng 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). B e fore the Board, Mr. Young ack now ledged that he had fa iled to exhaust his remedies before the D epartment of Labor. That fact is dispositiv e of his VEOA claim. Turning to Mr. Young’s USERRA clai m, we have stated that “an employee making a USERRA c l aim of dis c rimination . . . bears the initial burden of s howing by a preponderance of the evidenc e that the employee’s milit ary service was ‘a substantial or motivating factor’ in the adv erse employment action.” Sheehan v. Dep’t of the Navy , 24 0 F.3d 1009, 1013 (Fed. Cir. 2001). In her initial d e cis i on, the AJ noted that the on ly thing Mr. Young said as far as his USERRA claim was concerned was that the agency knew he was a veteran becaus e he had presented it with his DD214 form, which is his record of military service. We agree that, standing alone, the fact that an employe r

04-3302 3knows a person is a veteran is not e nough to make out a claim of USERRA discrimination. The r eason is t hat the me re fact of military ser v ice is not enou gh to show that a veteran was discriminated against on account of that service. We have c oncluded that the Board di d not err in dis m issing Mr. Young’s VEO A claim for lack of jurisdiction and in denying his USERRA claim for failure to state a claim upon whic h relief c o uld be grant ed. For the fo rgoing reasons, the fi nal dec ision of the Board is affirmed.

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