NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3216

STUART D. MILLER, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Stuart D. Miller , of Stuart, Florida, pro se. Calvin M. Morrow , Attorney, Office of the G eneral Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad Bungard , General Counsel, and Keisha Dawn Bell , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3216 STUART D. MILLER, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Petition for review of a decision from the Merit Systems Protection Board in DC0752080714-I-1.

__________________________

DECIDED: January 11, 2008

__________________________ Before GAJARSA, LINN, and MOORE, Circuit Judges

. PER CURIAM. Stuart D. Miller petitions fo r review of the final decision of the Merit Systems Protection Board (“Board”) dismissing hi s appeal for lack of jurisdiction. See Miller v. Dep’t of Homeland Sec. , 111 M.S.P.R. 325 (May 26, 2009) (“ Final Decision ”). For the reasons stated below, we affirm

. BACKGROUND Stuart D. Miller was employed by t he Department of Homeland Security (“Agency”). Mr. Miller held a position as a Supervisory Transportation SecuritySpecialist for the Transportation Security Ad ministration (“TSA”) in Arlington, Virginia. This was a “K band” position ac cording to the TSA career path model. The career path model ranks jobs within the TSA according to job qualifications and responsibilities, which begin at “A Band” and increase thro ugh “M Band.” The TSA career path model also determines a TSA employee’s pay level. On August 6, 2006, the Agency assigned Mr. Miller to a “K band” position, and transferred him to a foreign duty assignm ent as a TSA Representative (“TSAR”) in Brussels, Belgium. Mr. Miller had applied for the foreign position in early 2006 in response to a vacancy announcement, which advised that the position would not exceed four years. The Agency informed Mr. Miller that he would have return rights at the conclusion of his tour in accordance wit h established policies and regulations. On January 11, 2008, the Agency informed Mr. Miller that the TSAR position in Brussels, Belgium would be discontinued, and that his overseas to ur of duty would end on August 5, 2008. The Ag ency also informed Mr. Miller that he was eligible to exercise his return rights. On July 17, 2008, the Agency informed Mr. Miller that he would be assigned to a different “J band” position as a Transportation Security Specialist in Arlington, Virginia on August 6, 2008. The reassignment from the “K band” position to the “J band” position was a downgrade, but the Agency in formed Mr. Miller that he would retain the same pay level. Mr. Miller notified the Agency that he was dismayed by its decision to downgrade his position after nearly twenty years of federal service. He also objected to the reassignment because it was outside his commu ting area. Rather than accepting the reassignment, Mr. Miller informed the Ag ency that he planned to retire on

2009-3216 2August 5, 2008. Mr. Miller also request ed that his accrued annual leave and compensatory time be used to establish his eligibility for discontinued service retirement. The Agency denied that request. It found that Mr. Miller was not eligible for discontinued service retirement because he was not involuntaril y separated from the service, and he was subject to the expiration of his two-year foreign tour of duty with return rights to a position in the United Stat es. Mr. Miller then informed the Agency that he intended to retire under the eligibility of minimum retirement age plus ten years (“MRA + 10”). Mr. Miller retired under that provision on August 5, 2008. After Mr. Miller retired, he appealed to the Board allegi ng that the Agency improperly reassigned him to a lower-grade pos ition. Mr. Miller also challenged the Agency’s denial of his request to use annual l eave to establish his eligibility for a discontinued service retirement annuity. T he administrative judge (“AJ”) dismissed the appeal for lack of jurisdiction, finding that Mr. Miller retired before the effective date of the Agency’s reassignment: “While appellant did not suffe r a reduction in pay, it does appear that the reassignment would have resulted in a reduction in grade from K to J band which woul d ordinarily establish jurisdiction over this appeal. The appellant, however, retired from service on August 5, 2008, and the reassignment at issue was not scheduled to be effected until August 6, 2008. Thus, becaus e appellant retired from service before the agency intended to effect the reassignment, the Board lacks juri sdiction over his reduction in grade.” Miller v. Dep’t of Homeland Sec. , Nos. DC-0752-08-0714-I-1 & DC-3443-08-0767-I-1 (M.S.P.B. Nov. 21, 2009) (“ Initial Decision ”). The AJ did not address whether the Board had jurisdiction over Mr. Miller’s disconti nued service retirement annuity claim.

2009-3216 3Mr. Miller petitioned the B oard for review of the Initial Decision . The Board denied the petition, finding that Mr. Miller di d not “nonfrivolously allege” that the Board has jurisdiction over the Agency’s decision to downgrade his position or its denial of Mr. Miller’s request for a discontinued service retirement annuity. See Final Decision at 5. Mr. Miller timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our scope of review in an appeal from a decision of the Board is limited. A decision of the Board must be af firmed unless it is “(1) arbitr ary, 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.” Dickey v. Off. of Pers. Mgmt. , 419 F.3d 1336, 1339 (Fed. Cir. 2005). We review the question of whether the Board has jurisdiction over an appeal de

novo

. Herman v. Dep’t of Justice , 193 F.3d 1375, 1378 (Fed. Cir. 1999). Mr. Miller carries the burden to establish the Board’ s jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2) (2009). Mr. Miller challenges the Agency’s decision to reassign him from his position in Belgium to a lower-grade posit ion in the United States. The Board ordinarily has jurisdiction over personnel actions take by agencies. See 5 U.S.C. § 7701(a). The Agency’s decision to downgrade Mr. Miller’s pos ition, however, is not subject to review by the Board because Mr. Miller retired on A ugust 5, 2008 before the effective date of his reassignment, August 6, 2008. Thus , Mr. Miller was not downgraded during his employment at TSA. Under these circumstances, Mr. Miller may appeal his

2009-3216 4reassignment only if he can establish that his retirement was involuntary. See, e.g. , Lichtman v. Dep’t of Navy , 24 M.S.P.R. 524 (1984) (w here appellant resigned before the decision to remove him was effected, t he involuntariness of the resignation was the only issue on appeal). However, Mr. Miller’s involuntary retirement claim is currently pending in a separate appea l before the Board, and no final decision has issued in that case. Therefore, it is not a basis on which jurisdiction can be predicated in this case. Mr. Miller also contends that he is entitled to a discontinued service retirement annuity under 5 U.S.C. § 8418(b) (“Early Retirem ent”) and 5 C.F.R. § 842.206 (“Involuntary Retirement”). The Board f ound that Mr. Miller wa s not “involuntarily separated” within the m eaning of the statutory and regulatory requirements for eligibility for such an annuity. Mr. Miller argues that his resignation following separation from his position by reassignment outside his co mmuting area constitutes an involuntary separation for this purpose. Mr. Miller also contends that he was wrongfully denied his statutory right to use accrued annual leave to meet the lengt h of service requirement for a discontinued service annuity. We disagr ee. We find that the Board properly dismissed Mr. Miller’s discontinued servic e retirement annuity claim for lack of jurisdiction. The retirement provisions are primarily administered by the U.S. Office of Personnel Management (“OPM”). An individual who seeks a discontinued service retirement annuity must firs t apply to OPM before seeking review by the Board. See Edgerton v. Merit Sys. Prot. Bd. , 768 F.2d 1314, 1317 (Fed. Cir. 1985); Lichtman , 24 M.S.P.R. at 527 n.2. The Board’s authority is limited to appellate review of OPM’s final decisions regarding retirement claims. See 5 U.S.C. §§ 8347(d) & 8461(e). Mr.

2009-3216 52009-3216 6 Miller presented no evidence that he filed an application with OPM. Accordingly, the Board properly found that it lacked primary jurisdiction ov er his discontinued service retirement claim. See Edgerton , 768 F.2d at 1316. The Board also properly declined to address Mr. Miller’s entitlement to credit for annual leave because it related to his request for a discontinued service retirement annuity, a claim which the Board had no authority to address. CONCLUSION For the foregoing reasons, the final decisi on of the Board dismissing Mr. Miller’s appeal for lack of jurisdiction is affirmed.

No costs.