Benton v. Merit Systems Protection Board ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARAY J. BENTON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
NUCLEAR REGULATORY COMMISSION,
Intervenor
______________________
2015-3004
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-13-0508-W-1.
______________________
Decided: September 12, 2016
______________________
LARAY J. BENTON, Mitchellville, MD, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
2 BENTON v. MSPB
JESSICA COLE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for intervenor. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., PATRICIA M.
MCCARTHY.
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
Mr. LaRay J. Benton appeals the judgment of the
Merit Systems Protection Board, dismissing his Individu-
al Right of Action (IRA) appeal. 1 The Board now states,
in its Respondent’s brief on this appeal, that “the admin-
istrative judge and the full Board erred in analyzing Mr.
Benton’s 11 alleged personnel actions as protected disclo-
sures.” MSPB Br. 11. The Board also states that it erred
in holding that Mr. Benton had not exhausted his admin-
istrative remedies as to disclosures 4 and 10 of the eleven
actions. The Board nonetheless argues that this court on
appeal should decide the issues of actions 4 and 10; the
Board states that we should decide in favor of the position
as argued in the Board’s Respondent’s brief on this ap-
peal, without opportunity for Mr. Benton to be heard by
the Board on this new analysis.
The Board’s proposal is inappropriate not only as a
matter of due process, but also because a court generally
may review an agency’s decision only on the grounds
“upon which the record discloses that its action was
based.” Securities & Exchange Comm’n v. Chenery Corp.,
318 U.S. 80, 87 (1943); see Ward v. Merit Sys. Prot. Bd.,
981 F.2d 521, 527–28 (Fed. Cir. 1992) (Chenery doctrine
1 Benton v. Nuclear Regulatory Comm’n, DC-1221-
13-0508-W-1, 2014 WL 5358394 (M.S.P.B. July 29, 2014)
(Final Decision).
BENTON v. MSPB 3
prohibits affirming the Board on “a wholly different
theory” or “entirely different ground from the one it gave
in its opinion”).
We salute the Board’s action in correcting its errors.
However, with the concession that for disclosures 4 and
10 Mr. Benton had exhausted the OSC administrative
remedy, the Board’s judgment on this Individual Right of
Action appeal is no longer final. 28 U.S.C. § 1295(a)(9)
(2006) (conferring jurisdiction over “an appeal from a final
order or final decision of the Merit Systems Protection
Board, pursuant to sections 7703(b)(1) and 7703(d) of
title 5”); see, e.g. Rockwell v. Dep’t of Transp., F.A.A., 789
F.2d 908, 913 (Fed. Cir. 1986) (“Congress expressly lim-
ited our appellate review, 5 U.S.C. § 7703(c), to final
orders and decisions of the board on the record.”); Johnson
v. U.S.P.S., 527 Fed. App’x 868, 871 (Fed. Cir. 2013)
(remanding when agency conceded that controlling stand-
ard was not considered by the Board).
As the Board’s order is no longer final, we dismiss this
appeal for lack of jurisdiction. The case is remanded to
the Board for further proceedings.
DISMISSED AND REMANDED
COSTS
Costs to Mr. Benton.