                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2009-3231


                               HENRY J. MUMME, JR.,

                                                            Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                            Respondent.

                ----------------------------------------


                                      2009-3233


                               HENRY J. MUMME, JR.,

                                                            Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                            Respondent.



      Henry J. Mumme, Jr., of Amherst, New York, pro se.

       Patryk J. Drescher, 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 Mark A. Melnick, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2009-3231

                                 HENRY J. MUMME, JR.,

                                                               Petitioner,

                                                v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                               Respondent.

Petition for review of the Merit Systems Protection Board in AT4324080878-I-1.

                      --------------------------------------------------------

                                          2009-3233

                                 HENRY J. MUMME, JR.,

                                                               Petitioner,

                                                v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                               Respondent.

Petition for review of the Merit Systems Protection Board in NY4324080358-I-1.

                           __________________________

                            DECIDED: December 9, 2009
                           __________________________


Before RADER, ARCHER, and LINN, Circuit Judges.

PER CURIAM.
       Henry J. Mumme, Jr., (“Mumme”) seeks review of two decisions of the Merit

Systems Protection Board (“Board”), each of which denied his request for corrective

action based on his claim that the Department of Veterans Affairs (“agency”) violated

the Uniformed Services and Reemployment Rights Act of 1994 (“USERRA”) when it

declined to select him for a position within the agency. Because substantial evidence

supports the Board’s determinations that Mumme’s status as a veteran was not a

substantial or motivating factor in his non-selection for these positions, we affirm.

                                     BACKGROUND

       Mumme is a veteran of the United States Marine Corps.              He applied for a

position as a Safety Engineer in Gainesville, Florida under vacancy announcement VZ-

101-743. That announcement was open from November 9, 2005 to November 18,

2005. The agency never filled the position that Mumme applied for under vacancy

announcement VZ-101-743. Instead, the agency filled the position under an earlier

announcement, 05-450-BB, a vacancy for which Mumme did not apply. This earlier

announcement was open from October 20, 2005 to November 9, 2005. The agency

compiled a list of eligible candidates that had responded to the first vacancy

announcement, 05-450-BB, and conducted interviews with those candidates.                One

month later, on January 30, 2006, the agency compiled a list of eligible candidates that

had responded to the second vacancy announcement, VZ-101-743. On that same day,

January 30, 2006, the position was filled by a candidate whose name was on the first

list. Mumme filed a challenge with the Board alleging that his non-selection was a result

of discrimination under USERRA. On January 6, 2009, the Board denied Mumme’s

appeal, finding no evidence that the selecting official, Mr. Frank Campbell, ever saw or




2009-3231, 2009-3233                         2
knew about the second list when he selected a candidate from the first list on January

30, 2006. Mumme v. Dep’t of Veterans Affairs, No. AT-4324-08-0878-I-1, slip op. 10

(M.S.P.B. Jan. 6, 2009). The Board thus concluded that Mumme had failed to satisfy

his burden of showing that his status as a veteran was a substantial or motivating factor

in the agency’s decision not to select him for the Safety Engineer position. The Board’s

decision became final on May 15, 2009. Mumme timely appealed. His appeal of that

decision is docketed in this court as Appeal No. 2009-3231.

      Mumme also applied for a position as a Registered Nurse in Buffalo, New York

under vacancy announcement 528-07-068.          His only nursing experience was in a

previous part-time position in which he worked eight hours per week during a three

month period. In his interview, Mumme acknowledged that he gets overwhelmed in

nursing, that it took him six attempts to pass the state licensing exam, and that it will

take him time to get oriented in the new position. When he was not selected for this

position, he filed a challenge with the Board alleging that his non-selection was a

violation of USERRA. On December 19, 2008, the Board denied his appeal, finding that

the other candidates who were selected for this position all had much more experience

than Mumme, and that one of them was a military veteran.           Mumme v. Dep’t of

Veterans Affairs, No. NY-4324-08-0358-I-1, slip op. 6-7 (M.S.P.B. Dec. 19, 2008).

Mumme’s status as a veteran was therefore determined not to have been a substantial

or motivating factor in his non-selection. The Board’s decision became final on May 18,

2009. Mumme timely appealed. His appeal of that decision is docketed in this court as

Appeal No. 2009-3233.

      We have jurisdiction over both appeals under 28 U.S.C. § 1295(a)(9) (2006).




2009-3231, 2009-3233                       3
                                       DISCUSSION

      Mumme asserts that this court should conduct a “de novo” review of the Board’s

decisions. In his informal reply brief, Mumme states that it is “common knowledge” that

this court has “discretion” to “sua sponte” review his case de novo. Informal Reply Br.

2. This is incorrect. Our standard of review is prescribed by statute. See 5 U.S.C.

§ 7703(c).   Under that provision, we must affirm the Board’s decision unless it is

“arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law,

rule or regulation; or unsupported by substantial evidence.” Kirkendall v. Dep’t of Army,

573 F.3d 1318, 1321 (Fed. Cir. 2009).

      In order to prevail on his claim of discrimination under USERRA, Mumme must

show by a preponderance of the evidence that his prior military service or his status as

a former military service member was a “substantial or motivating factor” in the agency’s

decision not to select him for the position. Sheehan v. Dep’t of Navy, 240 F.3d 1009,

1013 (Fed. Cir. 2001). The Board concluded that Mumme had failed to discharge this

burden in both of his appeals.

      As for the Security Engineer position, Mumme argues that the candidate who

was   ultimately   selected   for   this   position   had   responded   to   both   vacancy

announcements, not just to the earlier announcement. Thus, Mumme believes that he

was passed over for a candidate who was on the same list of eligible candidates as he.

But Mumme does not dispute that the selected candidate did in fact apply under the first

announcement, and that the selecting official made his selection only from the list of

candidates who replied to the first announcement. The fact that the selected candidate

also responded to the later announcement is irrelevant, because there is no evidence




2009-3231, 2009-3233                          4
that this fact would have disqualified this candidate from consideration under the first

announcement.     By contrast, Mumme applied only under the later announcement.

Because the vacancy had already been filled before the second list of eligible

candidates had ever been evaluated by the selecting official, Mr. Frank Campbell, the

Board’s finding that Mumme’s military service was not a factor in his non-selection is

supported by substantial evidence.

      As for the Registered Nurse position, Mumme argues that he applied for an

entry-level position and should have been compared to other entry-level applicants

rather than to those who applied for what he calls “specialty” positions.         But the

evidence shows that all of the part-time nursing positions that were vacant at the time

were in one of the five services that Mumme characterizes as “specialized.” The Board

found no evidence that other non-specialized, entry-level positions existed at the time of

Mumme’s application. Moreover, Mumme does not dispute that one of the selected

candidates was himself a military veteran, a fact that tends to refute the notion that the

agency was biased against Mumme’s military status.

      Because the Board’s decisions are supported by substantial evidence, we affirm.




2009-3231, 2009-3233                        5
