Case Information

*1 Before M OORE , W ALLACH , and C HEN , Circuit Judges. P ER URIAM

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.

B ACKGROUND

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).

D ISCUSSION

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. ONCLUSION

For the foregoing reasons, the decision of the Board is affirmed FFIRMED OSTS

No costs.

[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).