Baney v. Merit Systems Protection Board , 513 F. App'x 957 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN-PIERRE BANEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3003
______________________
Petition for Review of the Merit Systems Protection
Board in No. DA0752120158-I-1.
______________________
Decided: March 11, 2013
______________________
JOHN-PIERRE BANEY, of Seagoville, Texas, pro se.
NICOLE DECRESCENZO, Attorney, Office of General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
______________________
2 JOHN-PIERRE BANEY v. MSPB
Before LOURIE, PLAGER, and WALLACH, Circuit Judges.
PER CURIAM.
John-Pierre Baney (“Baney”) appeals from the final
decision of the Merit Systems Protection Board (“the
Board”) denying his petition for review. See Baney v.
Dep’t of Justice, No. DA-0752-12-0158-I-1 (M.S.P.B. Mar.
26, 2012) (“Initial Decision”); (M.S.P.B. Feb. 6, 2012)
(“Notification Order”); (M.S.P.B. Aug. 27, 2012) (“Final
Order”). Because the Board did not err in denying
Baney’s petition for review for lack of jurisdiction, we
affirm.
BACKGROUND
Baney, a Veteran of the U.S. Coast Guard, was em-
ployed as a Supervisory Cook at the U.S. Department of
Justice, Federal Bureau of Prisons’ Federal Correctional
Facility in Seagoville, Texas (the “Agency”) until his
retirement was effected on December 31, 2011, the last
day of the month in which he reached 57 years of age. In
that capacity, Baney served for more than 24 years in a
law enforcement officer position subject to a mandatory
retirement requirement as set forth at 5 U.S.C. § 8425(b)
(“A law enforcement officer . . . shall be separated from
the service on the last day of the month in which [he]
becomes 57 years of age or completes 20 years of service if
then over that age.”). In January 2012, Baney appealed
his retirement from the Agency to the Board as involun-
tarily coerced, ostensibly contending that he was wrongly
subjected to the mandatory age provision because, in
2009, President Obama purportedly obviated the statuto-
ry age limit for Veterans serving in law enforcement
positions.
In February 2012, the administrative judge (“AJ”) is-
sued an order notifying Baney that the Board may not
have jurisdiction to hear his appeal because retirement is
presumed voluntary and therefore not appealable absent
JOHN-PIERRE BANEY v. MSPB 3
a nonfrivolous allegation of facts casting doubt on that
presumption of voluntariness. Notification Order at 1–2.
The AJ consequently outlined a schedule for the Agency to
file a response explaining why it believed that Baney was
subject to mandatory retirement and for Baney to file a
subsequent submission detailing why he believed that his
retirement was coerced and involuntary. The AJ further
observed that, because Baney had a separately docketed
complaint pending at the Board under the Uniformed
Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. §§ 4301–4333 (“USERRA”), 1 he might
consider raising other USERRA-based claims in the
instant appeal. Id. at 3. To assist Baney further in filing
a clarifying submission, the AJ noted case law applicable
to: (i) his burden to proffer a nonfrivolous allegation to
challenge the legal presumption of a voluntary retirement
(citing Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641, 643
(Fed. Cir. 1985); Schultz v. United States Navy, 810 F.2d
1133, 1136-37 (Fed. Cir. 1987)); (ii) the Board’s limitations
on review of a statutorily mandated retirement (citing
Ryan v. Defense Investigative Serv., 25 M.S.P.R. 551, 556
(1985) (mandatory retirement requirements of law en-
forcement positions are not appealable so long as law
enforcement status of appellant is proper), rev’d on other
grounds, 779 F.2d 669, 672–75 (Fed. Cir. 1985)); and (iii)
the standard of review for an allegation of USERRA-based
discrimination in connection with an involuntariness
claim (citing Markon v. Dep’t of State, 71 M.S.P.R. 574,
577–78 (1996)). Id. at 2. Baney, however, did not file any
evidence or argument in response to this order.
The Agency moved to dismiss Baney’s appeal for lack
of jurisdiction, asserting that Baney was separated be-
cause he had reached the maximum age for his position,
relying upon the Board’s decision in Ryan. In March
1 That case, Board Docket No. DA-4324-12-
0108-I-1, is pending at the Board on Petition for Review.
4 JOHN-PIERRE BANEY v. MSPB
2012, the AJ agreed and issued an initial decision dis-
missing Baney’s appeal for lack of jurisdiction, concluding
that the Agency had proven that Baney was properly
subjected to mandatory retirement under the statute and
that Baney failed to present a nonfrivolous assertion that
his retirement was involuntary and therefore tantamount
to a removal action. Initial Decision at 1–3. Baney then
petitioned the Board for reconsideration, claiming on
review that he was denied a hearing and not allowed to
present evidence, and stating that employers are “prohib-
ited from retaliating against an employee who files a
complaint under [USERRA], testifies in a [USERRA]
proceeding, participates in a USERRA investigation, or
exercises a right under USERRA,” while further declaring
only that he had been retaliated against since 2003.
Final Order at 2. In denying Baney’s petition, the Board
agreed with the AJ that the Agency’s decision mandatori-
ly to retire Baney was consistent with the statute and
that Baney did not make a nonfrivolous allegation of
Board jurisdiction over his claim of involuntary retire-
ment. Id. at 3–4.
Baney appealed to this court. We have jurisdiction
pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v.
Merit. Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). Whether the Board has jurisdiction to adjudicate a
particular appeal is a question of law, which we review
without deference. Kelley v. Merit Sys. Prot. Bd., 241 F.3d
JOHN-PIERRE BANEY v. MSPB 5
1368, 1369 (Fed. Cir. 2001). The Board’s jurisdiction is
not plenary, but is limited to those matters over which it
has been given jurisdiction by law, rule, or regulation.
Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008). An appellant has the burden to establish the
Board’s jurisdiction by a preponderance of the evidence.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344
(Fed. Cir. 2006) (en banc); 5 C.F.R. § 1201.56(a)(2)(i). A
preponderance of the evidence is that “degree of relevant
evidence that a reasonable person, considering the record
as a whole, would accept as sufficient to find that a con-
tested fact is more likely to be true than untrue.” 5 C.F.R.
§ 1201.56(c)(2).
On appeal, Baney repeatedly avers that he should
have been permitted a hearing and vaguely asserts that
the Board should have considered a USERRA retaliation
claim. He maintains that the Board did not consider all
the facts, but fails to identify any particular fact that the
Board should have considered. The government responds
that the Board correctly dismissed Baney’s petition be-
cause he did not meet his burden of proof that the appeal
of his retirement was within the Board’s jurisdiction.
We agree that the Board properly denied Baney’s pe-
tition for review for lack of jurisdiction because his man-
datory retirement was pursuant to 5 U.S.C. § 8425(b) and
he failed to establish the Board’s jurisdiction by a prepon-
derance of the evidence. An appellant is entitled to a
hearing on the issue of Board jurisdiction over an appeal
of an allegedly involuntary resignation or retirement only
if he makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness. Burgess, 758 F.2d at 643.
But voluntariness is not the issue here, as the statute
creates mandatory retirement for someone of Baney’s
position and circumstances.
Baney was provided detailed information advising
him of the applicable standards and facts that he would
6 JOHN-PIERRE BANEY v. MSPB
be required to allege in order to establish the Board’s
jurisdiction. The information given by the AJ was accu-
rate and consistent with our case law. The record indi-
cates that Baney neither contested that his position was
that of a law enforcement officer subject to mandatory
retirement, nor asserted that the requisite statutory
provision was applied to him improperly. Baney was
afforded an additional opportunity to submit evidence and
argument regarding his claim and his allegations of a
USERRA violation related to that claim, but filed no
further submissions. Indeed, in his pleadings both before
this court and before the Board below, Baney has offered
no supporting evidence or argument for his positions,
identified no error in the Board’s conclusions of fact or law
that would support an alternative result, and failed to
allege any facts in support of his purported USERRA
retaliation claim. Accordingly, the Board properly dis-
missed Baney’s claim for lack of jurisdiction.
We have considered Baney’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is
AFFIRMED.