Petition for review of the Merit Systems Protection Board in DA3443100262-I-1.
NOTE: This disposition is nonprecedential.
Before BRYSON, DYK, and PROST, Circuit Judges.
John-Pierre Baney appeals a decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction. Because Mr. Baney failed to allege claims falling within the Board's jurisdiction, we affirm.
Mr. Baney works for the Bureau of Prisons at a facility in Seagoville, Texas. On February 16, 2010, he filed an appeal with the Board alleging retaliation, breach of contract, and workplace violence. In his appeal, he indicated that he had filed two other complaints concerning the same underlying events-an Individual Right of Action ("IRA") complaint that he filed with the Office of Special Counsel ("OSC") and a complaint under the Uniformed Services Employment and Reemployment Rights Act ("USERRA") that he filed with the Department of Labor. He did not provide a copy of either complaint, and he did not provide any details about the events underlying his claims on appeal.
The administrative judge who was assigned to the case ordered Mr. Baney to show why the Board had jurisdiction over the appeal. Prior to the due date for Mr. Baney to respond to the show cause order, the administrative judge issued a second order requiring Mr. Baney to submit a copy of his OSC complaint, to identify the actions that he claimed were taken against him in retaliation for his whistleblowing disclosures and the person who took those actions, and to explain how his disclosures contributed to the agency's decision to retaliate against him. For the USERRA claim, the administrative judge directed Mr. Baney to disclose whether he had chosen not to file a complaint with the Secretary of Labor or had opted to file a complaint before the Secretary that was still pending. The administrative judge also ordered Mr. Baney to identify each action that he alleged was taken based on discrimination because of his status as a veteran.
Mr. Baney did not comply with any of the administrative judge's directives. Instead, he filed a motion for a formal hearing, asserting that he had an "unconditional right to a hearing" based on Baney v. Department of Justice, 109 M.S.P.R. 242, 249 (2008). He did not allege any specific facts about the retaliatory or discriminatory actions purportedly taken against him, but alluded to several additional acts of alleged misconduct by the agency, including obstruction of justice, perjury, conflict of interest, and hostile environment based on retaliation. He provided no details regarding the events underlying these allegations.
The administrative judge dismissed Mr. Baney's appeal for lack of jurisdiction because Mr. Baney had not identified a law, rule, or regulation that would give the Board jurisdiction over his appeal. Mr. Baney petitioned the full Board for review, alleging that he had been improperly denied a hearing. He also alleged specific facts about his breach of contract action, claiming that the agency had retaliated against him for filing appeals by revoking 13 days of military leave he had won in an earlier case before the Board.
The Board denied his petition for review. The Board explained that Mr. Baney had not provided any of the information or documentation necessary to show that the Board had jurisdiction over his claims. Rejecting Mr. Baney's contention that he had an unconditional right to a hearing, the Board noted that a USERRA claimant's right to a hearing attaches only after the claimant demonstrates the Board has jurisdiction over his appeal. The Board stated that it would not consider the specific allegations of agency misconduct that were raised for the first time in his petition for review of the administrative judge's decision. Mr. Baney now petitions for review by this court.
Mr. Baney contends that, as a USERRA claimant, he had an unconditional right to a hearing before the Board based on our decision in Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc). Although this court held in Kirkendall that USERRA claimants have the right to a hearing because they are "appeals" under 5 U.S.C. § 7701, it did not hold that the right to a hearing attaches simply because a claimant files a claim with the Board that he denominates as a USERRA claim. Because the right to a hearing is based on section 7701, that right only attaches after a USERRA claimant makes a non-frivolous allegation of Board jurisdiction. Downs v. Dep't of Veterans Affairs, 100 M.S.P.R. 139, 148 (2008).*fn1
Mr. Baney has failed to satisfy the threshold showing necessary to show that the Board has jurisdiction over his USERRA claim. He has provided no details about his claim. He has not described the protected right or benefit that he was allegedly denied because of his military status.*fn2 He did not respond to the administrative judge's inquiries as to whether he had pursued the same claim with the Department of Labor or whether any such claim before the Department of Labor was still pending, issues that affect the Board's jurisdiction. See 38 U.S.C. § 4324(b); Becker v. Dep't of Veterans Affairs, 107 M.S.P.R. 327, 333-34 (2007) (USERRA complainant who files a complaint with the Department of Labor pursuant to 38 U.S.C. § 4322 must exhaust administrative remedies before initiating a proceeding before the Board). Because ...