Jones v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FELICIA N. JONES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2381
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-3443-16-0099-I-1.
______________________
Decided: December 9, 2016
______________________
FELICIA N. JONES, Houston, TX, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before DYK, BRYSON, and REYNA, Circuit Judges.
2 JONES v. MSPB
PER CURIAM.
Felicia N. Jones petitions for review of a final order of
the Merit Systems Protection Board (“MSPB”) dismissing
her appeal for lack of jurisdiction. We affirm.
BACKGROUND
On June 23, 2015, Jones filed a claim with the De-
partment of Veterans Affairs (“VA”) for disability compen-
sation and related benefits. The VA denied her claim
because the military service Jones had alleged did not
qualify as “active” service under the statutory definition
of a “veteran.” See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).
Instead of challenging the VA’s denial of her claim at the
Board of Veterans’ Appeals, however, Jones filed an
appeal with the MSPB.
The MSPB administrative judge (“AJ”) dismissed
Jones’s appeal for lack of jurisdiction. The AJ first con-
cluded that the VA’s denial of Jones’s claim did not fall
under any of the appealable agency actions within the
MSPB’s statutory purview, which include “a removal, a
suspension of more than 14 days; a reduction in grade; a
reduction in pay; [or] a furlough of 30 days or less.” J.A. 8
(citing 5 U.S.C. §§ 7512, 7513(d)). The AJ then considered
the applicability of any “exceptions to the [MSPB’s] usual
jurisdictional limits, such as claims based on the Whistle-
blower Protection Act, Veterans Employment Opportuni-
ties Act[,] and Uniformed Services Employment and
Reemployment Rights Act.” J.A. 9. The AJ found that
Jones had failed to allege a “personnel action” reviewable
by the MSPB and that she had not alleged that she was
an agency employee or applicant for employment. See 5
U.S.C. § 2302(a)(2). The AJ therefore dismissed Jones’s
appeal.
Jones filed a petition for review with the full MSPB,
which affirmed the AJ’s decision in a final order denying
her petition. Jones then filed a petition for review in this
JONES v. MSPB 3
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9)
and 5 U.S.C. § 7703(b)(1)(A).
DISCUSSION
We review the MSPB’s jurisdictional determinations
de novo, but are bound by its factual determinations if
supported by substantial evidence. See Bolton v. Merit
Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). As a
threshold matter, Jones must assert non-frivolous allega-
tions that, if proven, would establish the MSPB’s jurisdic-
tion. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905,
909 (Fed. Cir. 2008); Garcia v. Dep’t of Homeland Sec.,
437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).
To invoke the MSPB’s jurisdiction, a party must al-
lege facts that demonstrate an action appealable by
statute or regulation to the MSPB. See Garcia, 437 F.3d
at 1327–28. The MSPB found that Jones had not alleged
that she was an employee, applicant for employment, or
other person entitled to appeal to the MSPB, and that the
VA’s denial of veterans’ benefits was not an appealable
action under any legal authority granting the MSPB
jurisdiction. See generally 5 C.F.R. § 1201.3 (summarizing
legal sources of the Board’s appellate jurisdiction).
We agree. The exclusive course for challenging the
VA’s denial of a claim for veterans’ benefits is to file an
appeal before the Board of Veterans’ Appeals, not the
MSPB. See 38 U.S.C. §§ 511, 7104, 7252. Accordingly, the
MSPB’s final order is
AFFIRMED
COSTS
No Costs.