NOTE: This disposition is nonprecedential.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 General 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 Systems Protection Board 
NOTE: This disposition is nonprecedential.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. 

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 for review of the final decision of the Merit Systems 

Protection Board (“Board”) dismissing his 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 the Department of Homeland Security 

(“Agency”). Mr. Miller held a position as a Supervisory Transportation Security 
Specialist for the Transportation Security Administration (“TSA”) in Arlington, Virginia. 

This was a “K band” position according 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 through “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 assignment 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 with 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 tour of duty would end 

on August 5, 2008. The Agency 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 informed 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 commuting area. Rather than accepting the 

reassignment, Mr. Miller informed the Agency that he planned to retire on 

2009-3216 2
August 5, 2008. Mr. Miller also requested 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 involuntarily 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 States. 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 alleging that the Agency 

improperly reassigned him to a lower-grade position. Mr. Miller also challenged the 

Agency’s denial of his request to use annual leave to establish his eligibility for a 

discontinued service retirement annuity. The 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 suffer a reduction in pay, it does 

appear that the reassignment would have resulted in a 

reduction in grade from K to J band which would 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, because appellant retired from 

service before the agency intended to effect the 

reassignment, the Board lacks jurisdiction 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 discontinued service retirement annuity claim. 

2009-3216 3
Mr. Miller petitioned the Board for review of the Initial Decision. The Board 

denied the petition, finding that Mr. Miller did 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 affirmed unless it is “(1) arbitrary, 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 position 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 position, however, is not subject to review 

by the Board because Mr. Miller retired on August 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 4
reassignment 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) (where appellant resigned before 

the decision to remove him was effected, the involuntariness of the resignation was the 

only issue on appeal). However, Mr. Miller’s involuntary retirement claim is currently 

pending in a separate appeal 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 Retirement”) and 5 C.F.R. § 842.206 

(“Involuntary Retirement”). The Board found that Mr. Miller was not “involuntarily 

separated” within the meaning 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 commuting 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 length of service requirement for 

a discontinued service annuity. We disagree. We find that the Board properly 

dismissed Mr. Miller’s discontinued service 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 first 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 5
2009-3216 6

Miller presented no evidence that he filed an application with OPM. Accordingly, the 

Board properly found that it lacked primary jurisdiction over 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 decision of the Board dismissing Mr. Miller’s 

appeal for lack of jurisdiction is affirmed. 

No costs.