Baney v. Merit Systems Protection Board ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN-PIERRE BANEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF JUSTICE,
Intervenor.
__________________________
2010-3097
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DA1221090479-W-1.
____________________________
Decided: January 19, 2011
____________________________
JOHN-PIERRE BANEY, Seagoville, Texas, pro se.
STEPHANIE M. CONLEY, Attorney, Office of General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
BANEY v. MSPB 2
EISENMAN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
COURTNEY S. MCNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for intervenor. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.
WHITE, JR., Assistant Director.
__________________________
Before LOURIE, LINN, and DYK, Circuit Judges.
PER CURIAM.
John-Pierre Baney appeals from the final decision of
the Merit Systems Protection Board (“the Board”) dis-
missing for lack of jurisdiction his Individual Right of
Action (“IRA”) appeal under the Whistleblower Protection
Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8). Baney v. Dept.
of Justice, No. DA-1221-09-0479-W-1 (M.S.P.B. Aug. 18,
2009) (“Initial Decision”), (M.S.P.B. Jan. 10, 2010) (“Final
Order”). Because we conclude that Baney failed to meet
his jurisdictional burden, we affirm.
BACKGROUND
Baney is employed as a cook supervisor for the De-
partment of Justice (“DOJ”), Federal Bureau of Prisons
(“BOP”) in Seagoville, Texas. On May 12, 2009, Baney
filed an IRA appeal with the Board alleging that he had
been retaliated against for engaging in whistleblowing
activities. Specifically, Baney alleged that his life had
been threatened in retaliation for his participation in an
earlier Board appeal. On May 18, 2009, the Board issued
an order notifying Baney that a threat to his life is not an
action appealable to the Board. The order also informed
3 BANEY v. MSPB
Baney that to establish the Board’s jurisdiction over an
IRA appeal, he needed to show that he had exhausted his
administrative remedies before the Office of Special
Counsel (“OSC”) and make nonfrivolous allegations that
(1) he engaged in whistleblowing activity by making a
protected disclosure; and (2) his disclosure was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action.
In response to the Board’s order, Baney submitted a
letter dated June 2, 2009, and several documents, none of
which identified any protected disclosure or any personnel
action taken against him. One document, a letter from
the OSC dated April 8, 2009, indicated that the OSC was
closing its inquiry into Baney’s whistleblowing complaint
against the BOP because Baney had confirmed that no
relevant personnel action had been taken against him by
the agency and thus the OSC had no cause of action to
pursue on his behalf. Another letter from the OSC, dated
April 23, 2009, indicated that Baney’s file had been
closed.
The Board, on July 13, 2009, issued a second, more
detailed jurisdictional order. The order included a list of
specific information items Baney needed to submit to
establish the Board’s jurisdiction over his IRA appeal.
Baney responded with a motion for an extension of time,
along with copies of orders issued in another appeal in
which he alleged retaliation for his military service under
the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301-4333.
The Board granted the motion for an extension of time
and once again notified Baney that he had not provided
the necessary information to establish the Board’s juris-
diction over his IRA appeal. In response, Baney filed a
motion to request a formal hearing. The motion included
BANEY v. MSPB 4
a list of forty witnesses to whom Baney claimed to have
made a protected disclosure, but it failed either to identify
the disclosure or to identify any personnel action taken
against him by the BOP in retaliation for the disclosure.
In an initial decision on August 18, 2009, the Board
dismissed Baney’s IRA appeal for lack of jurisdiction.
Initial Decision at 1. The Board found that although
Baney had exhausted his administrative remedies at the
OSC, he had failed to describe any protected disclosure he
allegedly made, failed to provide any details on the al-
leged threat on his life, and failed to identify any person-
nel action that the DOJ took, did not take, or threatened
to take or not take in response to his alleged disclosure.
Id. at 3-4. Accordingly, the Board concluded that Baney
had failed to make a nonfrivolous allegation that he was
subject to a personnel action in retaliation for protected
activity, and thus had failed to establish the Board’s
jurisdiction. Id. at 4. On January 12, 2010, the Board
denied Baney’s petition for review, rendering the dis-
missal of his IRA appeal final. Final Decision at 2.
Baney timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1).
DISCUSSION
This court reviews a determination by the Board that
it lacks jurisdiction de novo. Delalat v. Dep’t of Air Force,
557 F.3d 1342, 1343 (Fed. Cir. 2009). Baney, as appellant
below, bears the burden of establishing jurisdiction by a
preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i);
Delalat, 557 F.3d at 1343. In this case, the Board has
jurisdiction over Baney’s IRA appeal only if he has made a
nonfrivolous allegation that (1) he engaged in whistle-
5 BANEY v. MSPB
blowing activity by making a protected disclosure under 5
U.S.C. § 2302(b)(8); and (2) the disclosure was a contrib-
uting factor in the agency’s decision to take or fail to take
a personnel action as defined by 5 U.S.C. § 2302(a). See
Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001). Whether an appellant has made a
nonfrivolous allegation is determined on the basis of the
written record, without a jurisdictional hearing. Spencer
v. Dep’t of Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003).
Baney argues nothing on appeal that establishes that
the Board erred in dismissing his IRA appeal for lack of
jurisdiction. Baney first argues that the Board failed to
take into account the fact that he has been in the Coast
Guard Reserve for nineteen years while working for the
DOJ, and that he has been working for the BOP for
twenty-three years. The government responds, and we
agree, that these facts, even if true, have no bearing on
the issue of the Board’s jurisdiction over an IRA appeal.
As the Board repeatedly informed Baney, he was required
to make a nonfrivolous allegation regarding a protected
disclosure and a personnel action taken by the DOJ in
retaliation. That he has served in the Coast Guard Re-
serve while working of the DOJ or that he has been
employed at the BOP fails to allege either a protected
disclosure or a personnel action overlooked by the Board.
Baney also argues that the Board (1) applied the
wrong law, listing the Whistleblower Act, USERRA Law,
Due Process, and the No Fear Act; and (2) failed to con-
sider as other important grounds of relief discrimination,
anti-discrimination and retaliation, defamation of charac-
ter, workplace violence, adverse action, and reprisal.
Also, according to Baney, the Board’s decision was wrong
for conflict of interest, intimidation, coercion, and perjury.
The government responds, and we again agree, that the
BANEY v. MSPB 6
Board correctly applied the WPA to the issue of the
Board’s jurisdiction, requiring Baney to make a nonfrivo-
lous allegation that (1) he engaged in whistleblowing
activity by making a protected disclosure, and (2) the
disclosure was a contributing factor in the agency’s deci-
sion to take or fail to take a personnel action. See Yunus,
242 F.3d at 1371. When Baney failed to identify any
protected disclosure made by him and any personnel
action taken by the DOJ in retaliation, he failed to make
the requisite jurisdictional showing under the WPA.
Regarding the other laws, grounds for relief, and er-
rors Baney suggests the Board made, Baney fails to
explain their relevance either to the jurisdictional issue or
to the Board’s decision. Baney failed to adequately raise
any issue other than retaliation for whistleblowing before
the Board, and thus they have been waived. Moreover,
once the Board determined that Baney had failed to
establish jurisdiction, the Board lacked jurisdiction to
take any further action in this case. Baney’s unexplained
lists of laws, grounds of relief, and errors provide no basis
for a different result. Accordingly, we affirm the final
order of the Board dismissing Baney’s IRA appeal for lack
of jurisdiction.
AFFIRMED