NOTE: This disposition is nonprecedential.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 Department 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”) dismissing 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 Department 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 contributing 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 jurisdiction 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 alleged threat on his life, and failed to identify any personnel 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 dismissal of his IRA appeal final. Final Decision at 2. 

Baney timely appealed to this court. We have jurisdiction 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 contributing 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 Reserve 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 consider as other important grounds of relief discrimination, 

anti-discrimination and retaliation, defamation of character, 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 nonfrivolous 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 decision 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 errors 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