NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HAROLD ARNALDO HERNANDEZ,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1934
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-4324-15-0765-I-1.
______________________
Decided: October 14, 2016
______________________
HAROLD ARNALDO HERNANDEZ, Tampa, FL, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before MOORE, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
2 HERNANDEZ v. MSPB
Harold Arnaldo Hernandez appeals from a Merit
Systems Protection Board (“Board”) decision dismissing
his appeal for lack of jurisdiction. We affirm the dismis-
sal of Mr. Hernandez’s appeal.
BACKGROUND
Mr. Hernandez entered the Federal Bureau of Inves-
tigation (“agency”) as a Special Agent on August 10, 2014.
Prior to his agency employment, he served in the United
States Army and in a volunteer position with the United
States Civil Air Patrol. On March 19, 2015, the agency
terminated him “for failure to meet the suitability stand-
ards.” On July 24, 2015, he appealed his termination to
the Board. He argued the agency did not use proper
procedures when it removed him from federal service. He
also alleged wrongful termination based on racial discrim-
ination, in violation of 5 U.S.C. § 2302, and discrimination
based on his prior military service, in violation of the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”). 1
In the Initial Decision, the Administrative Judge
(“AJ”) dismissed Mr. Hernandez’s appeal for lack of
jurisdiction. The AJ concluded that the Board’s jurisdic-
tion over USERRA claims is based on 38 U.S.C. §§ 4324(b)
and (c) and that the agency was excluded from the defini-
tion of “Federal executive agency” for the purpose of
appealing a USERRA claim to the Board. Mr. Hernandez
petitioned for review, and the Board affirmed the Initial
Decision. Mr. Hernandez appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
1 The Administrative Judge docketed and processed
Mr. Hernandez’s USERRA claim as a separate appeal,
which is addressed in this case. Mr. Hernandez’s other
claims are addressed in Case No. AT-3443-15-0764-I-1
(companion Case No. 16-1933 in this court).
HERNANDEZ v. MSPB 3
DISCUSSION
Our review of the Board’s decision is limited by stat-
ute. We must affirm a final decision of the Board unless
it is arbitrary, capricious, an abuse of discretion, or oth-
erwise 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). The Board’s decision to dismiss for
lack of jurisdiction presents an issue of law that we re-
view de novo. Campion v. Merit Sys. Prot. Bd., 326 F.3d
1210, 1212 (Fed. Cir. 2003). To succeed on appeal,
Mr. Hernandez must nonfrivolously allege that the Board
has jurisdiction over his USERRA claim.
5 C.F.R. § 1201.57(b).
A petitioner alleging a USERRA violation may bring a
complaint against a “Federal executive agency” directly to
the Board pursuant to 38 U.S.C. § 4324(b). Yates v. Merit
Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
“Federal executive agency” is defined as “any Executive
agency . . . other than an agency referred to in section
2302(a)(2)(C)(ii) of title 5.” 38 U.S.C. § 4303(5) (emphasis
added). The Federal Bureau of Investigation is one such
agency referred to in section 2302(a)(2)(C)(ii) of title 5 and
is therefore excluded from the definition of “Federal
executive agency” for purposes of the statute.
5 U.S.C. § 2302(a)(2)(C)(ii)(I).
We therefore hold the Board did not commit error in
dismissing Mr. Hernandez’s USERRA claim for lack of
jurisdiction.
We have considered Mr. Hernandez’s remaining
arguments and find them unpersuasive.
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
4 HERNANDEZ v. MSPB
AFFIRMED
COSTS
No costs.