NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3190 JOHN-PIERRE BANEY, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

John-Pierre Baney , of Seagoville, Texas, pro se. Jeffrey A. Gauger , Attorney, Office of the Gener al Counsel, Merit Systems Protection Board, of Washington , DC, for respondent. With hi m 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 not citable as precedent. 

## United States Court of Appeals for the Federal Circuit

2009-3190 JOHN-PIERRE BANEY, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Petition for review of the Merit Systems Protection Board in DA-1221-09-0177-W-1.

________________________

DECIDED: October 9, 2009

________________________ Before LOURIE, ARCHER, and GAJARSA, Circuit Judges

. PER CURIAM. DECISION John-Pierre Baney (“Mr. Baney”) appeal s from the Merit Systems Protection Board’s (“MSPB” or “Board”) final order dism issing his individual right of action (“IRA”) appeal for lack of jurisdiction. Baney v. Dep’t of Justice , M.S.P.B. No. DA-1221-09- 0177-W-1 (April 22, 2009) (“ Final Order ”). Because we conclude that Mr. Baney has failed to meet his jurisdictional burden, we affirm

.BACKGROUND Mr. Baney is a cook supervisor fo r the Federal Bureau of Prisons, U.S. Department of Justice, in Seagoville, Texas. On December 20, 2008, Mr. Baney filed an IRA appeal claiming that the Bureau of Prisons (“Agency”) retaliated against him for whistleblowing in violation of the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8 ). Specifically, Mr. Baney alleged that he repor ted an episode of workplace violence to his superiors, and, as reprisal for his disclosure, was declared absent without leave (“AWOL”) and forced to retire. Mr. Baney also alleged di scrimination in violat ion of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”); however, because the Board docketed the USERRA claim separately, it is beyond the scope of this appeal. In response to Mr. Baney’s filing, t he administrative judge (“AJ”) ordered Baney (1) to provide evidence that he had sought corrective action from the Office of Special Counsel (“OSC”) before initiating his appeal; and (2) to show that his retirement from the Agency was involuntary. The AJ ex plained that Board jurisdiction over whistleblower claims turns on a showing that all administrative remedies before the OSC have been exhausted, and that jurisdicti on over involuntary retirement claims under 5 U.S.C. § 7512 requires proof that the retirement was obtained by duress, coercion, or misrepresentation. Mr. Baney failed to respond to either order. Indeed, in a subsequent motion for sanctions, Baney c onceded that he was still employed by the Agency and had not retired.

2009-3190 2On January 26, 2009, the AJ dismissed Mr. Baney’s whistleblower and adverse action claims for lack of jurisdiction, ci ting Mr. Baney’s failure to exhaust OSC administrative remedies or to establish that he was forced to retire from the Agency. The decision became final on April 22, 2009, when the Board denied Mr. Baney’s petition for review. Mr. Baney appeals to this court for relief. Pursuant to 5 U.S. C. § 7703, we have jurisdiction to review the Board’s final decision. STANDARD OF REVIEW Whether the Board has jurisdiction over these issues is a question of law, reviewable de novo

. Herman v. Dep’t of Justice , 193 F.3d 1375, 1378 (Fed. Cir. 1999); Middleton v. Dep’t of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999). Factual findings underlying the Board’s jurisdictional conclu sions, however, are entitled to deference unless unsupported by substantial evidence. Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998). DISCUSSION The Merit Systems Protection Board has limited jurisdicti on. The Board may only review agency actions where appeals are authorized by statute, rule, or regulation, 5 U.S.C. § 7701(a), and t he burden is on the petitioner to establish Board jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i); Campion v. Merit Sys. Prot. Bd. , 326 F.3d 1210, 1213—14 (Fed. Cir. 2003). In order for the Board to have jurisdicti on over an IRA whistleblowing claim, the aggrieved employee is required to first br ing his complaint before the OSC and exhaust the administrative remedies before that agency. See Yunus v. Dep’t of Veteran Affairs ,

2009-3190 3242 F.3d 1367, 1371 (Fed. Cir. 2001). It is not enough to allege retaliation for whistleblowing in general terms; the empl oyee must inform the OSC of the precise nature of his reprisal accusa tions, and in so doing, give the OSC an opportunity to investigate and respond as appropriate. See Ward v. Merit Sys. Prot. Bd. , 981 F.2d 521, 526 (Fed. Cir. 1992). Pr ovided the employee discharges this burden, the employee then must allege, nonfrivolously, that: (1) he engaged in “whistleblowing” activity; and (2) his agency pursued a prohibi ted “personnel action” against him in response to the whistleblowing activi ty. 5 U.S.C. § 2302(a), (b)(8). We do not reach the question of whether Mr. Baney made nonfrivolous allegations of “whistleblow ing” or improper “personnel actions” by his agency because those questions are not properly before us, and because, even if he did, jurisdictional infirmities would persist. Mr. Baney has fa iled to satisfy the fi rst element of Board jurisdiction: to prove that he sought corre ctive action through the OSC before bringing his appeal. The AJ ordered the production of evidence t hat Baney had addressed his concerns to the OSC, and he did not res pond. The Board, t herefore, properly dismissed Mr. Baney’s action for failure to exhaust his adm inistrative re medies before the OSC. Mr. Baney also submits that the Board has jurisdiction over his involuntary retirement claim. However, as a precondition to Board jurisdiction over such claims, an appellant must show: (1) reti rement or resignation; and (2) “that his resignation or retirement was involuntary and thus tantamount to forced removal.” Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1328 (Fed. Cir. 2006) (citing Shoaf v. Dep’t of Agric. , 260 F.3d 1336, 1340—41 (Fed. Cir. 2001)).

2009-3190 42009-3190 5 Mr. Baney fails to make even the threshold showing that he resigned or retired from the Agency. Indeed, the record show s that Mr. Baney was still employed by the Agency on January 24, 2009, well after he co mmenced his appeal. Because Mr. Baney has failed to establish this basic predicat e to jurisdiction, there can be no further consideration of his involunt ary retirement claim. We agree with the Board’s conc lusion that it lacks jurisdiction to hear Mr. Baney’s claims. Accordingly, we affirm. Each party shall bear its own costs.