NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3289

JEFFREY WHEATON, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent. Jeffrey Wheaton , of Toto, Guam, pro se. Raymond W. Angelo , Attorney, Office of the Ge neral Counsel, United States Merit Systems Protection Board, of Washin gton, DC, for respondent. With him on the brief were B. Chad Bungard , General Counsel, and Rosa M. Koppel , Deputy General Counsel. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3289 JEFFREY WHEATON, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Petition for review of the Merit S ystems Protection Board in SF3443070042-I-1.

__________________________ DECIDED: January 11, 2008

__________________________ Before RADER, Circuit Judge , FRIEDMAN, Senior Circuit Judge , and PROST, Circuit Judge

. PER CURIAM. Jeffrey Wheaton appeals the final decision of the Merit System Protection Board (“Board”) denying his petition for review of the initial decision of the administrative judge dismissing his appeal for lack of jurisdiction. Wheaton v. Dep’t of Agric. , No. SF3443070042-I-1 (M.S.P.B. June 7, 2007). We affirm

. BACKGROUND Mr. Wheaton has been empl oyed by the U.S. Depar tment of Agriculture (“USDA”) since November 11, 1984. On Ap ril 7, 1994, he accepted a position as a project engineer in Saipan, Northern Marianas Islands and signed a three-year serviceagreement. Then, on January 21, 1996, he was selected for a supervisory position in Guam, and he signed a new three-year servic e agreement. Thereafter, he signed twoyear renewal agreements on August 13, 1997; October 13, 2000; March 12, 2003; and June 5, 2005. Prior to the time that Mr. Wheaton signed his last renewal agreement, Merit Promotion Plan, General M anual (“GM”) 360 was in effect. Part 408-90 of GM 360 provided that an employee sele cted through merit promotion to an assignment in Guam had return rights, i.e., he could return to a similar position within the agency at his same grade level in his designated place of residency, if such a position were available, or otherwise to a position in any of the forty-eight conti guous states. An employee assigned to Guam also received tour renewal travel. On May 22, 2006, the USDA abolished GM 360, Part 408-90. By letter dated October 2, 2006, the USDA adv ised Mr. Wheaton that the po licy granting return rights was abolished effective May 22, 2006, and that he would only be granted return rights if he exercised such rights immediately upon completion of his two-year renewal agreement and that he must elect to exercise those rights no later t han six months prior to expiration of the agreement. The letter stat ed: “Failure to respond to this notice will result in the agency initiating action to retu rn you to the contiguous U.S.” The letter further informed Mr. Wheaton that he would no longer be granted tour renewal travel. Mr. Wheaton responded with a letter to the B oard stating that he refused to sign the form indicating whether he would exercise hi s return rights or remain in his current position.

2007-3289 2The Board treated Mr. Wheaton’s lette r as a petition for appeal. The administrative judge issued an acknowledgm ent order stating that Mr. Wheaton appeared to be challenging the USDA’s policy on return rights, an action which is not appealable to the Board. The Board then or dered Mr. Wheaton to file evidence and argument to prove that the action wa s within the Board’s jurisdiction. After Mr. Wheaton filed his submission, the USDA moved to dismiss the appeal for lack of jurisdiction. On January 29, 2007, the administrative judge issued his initial decision dismissing the appeal for lack of ju risdiction. On J une 7, 2007, the Board denied Mr. Wheaton’s petition for review and the initial decision became the final decision of the Board. DISCUSSION We must affirm the decision by the Board unl ess we find it to be: “(1) arbitrary, capricious, an abuse of discreti on, or otherwise not in acco rdance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidenc e.” 5 U.S.C. § 7703(c) (2000); Walls v. Merit Sys. Prot. Bd. , 29 F.3d 1578, 1581 (Fed. Cir. 1994). The Board’s jurisdiction is a matter of law, which we review de novo. Forest v. Merit Sys. Prot. Bd. , 47 F.3d 409, 410 (Fed. Cir. 1995). Mr. Wheaton avers that the Board err ed by: (1) requiring that he prove jurisdiction by a preponderance of the evidence; (2) denying jurisdiction despite his allegations that he had been subjected to ac tion appealable to the Board; and (3) failing

2007-3289 3to enforce discovery and t hereby preventing him from obtaining evidence to prove jurisdiction. 1 The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. 5 U.S.C. § 7701(a); 5 C.F.R. § 1201.3(a) (2006); Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en banc). Mr. Wheaton, as the appell ant, has the burden of proving that the Board has jurisdiction by a preponderance of t he evidence. 5 C.F.R. 1201.56(a)(2)(i); Garcia , 437 F.3d at 1330. Although Mr. W heaton argues that the facts of Garcia are distinguishable from the facts here, Garcia is binding precedent with regard to the Board’s jurisdiction, who has the burden of proving jurisdiction, and the standard of proof required. Hence, we find no error in the Board’s determination that Mr. Wheaton bears the burden of proof of jurisdicti on by a preponderance of the evidence. Mr. Wheaton acknowledges t hat the Board’s jurisdiction is governed by 5 U.S.C. § 7701(a). Nevertheless, he argues that the regulation, 5 C.F.R. 1201.3(a), lists twenty possible types of appeals, but uses the language “includes.” 2 That language, he avers, leaves the Board’s jurisdiction open to other actions as we ll. The regulation, however, tracks the language of the statute, stipulating that “ [t]he Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule, or

1 In his opening brief, Mr. Wheaton also argues the merits of his claim ostensibly because the court originally docke ted the case with the USDA, rather than the Board, listed as the Appellee. Because subject matter jurisdiction is a threshold matter that must be establis hed before reaching the merits, Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 88-89 (1998), we need not consider these arguments.

2 In fact, the 2006 version of the regulat ion, in effect at the time of Mr. Wheaton’s appeal, lists twenty-one types of appealable actions.

2007-3289 4regulation .” 5 C.F.R. 1201.3(a) (emphasis added). Notably, following each of the listed appeals, the regulation or statute that authorizes juri sdiction is referenced. Mr. Wheaton cites to no law, rule, or regulation that authorizes jurisdiction over his claim. His claim appears to be a challenge to t he USDA’s change in policy regarding return rights. It alleges in part that the statement in the October 2, 2006, letter that “failure to respond to the notice will result in the agency initiating action to return you to the contiguous U.S.,” is a th reat of adverse action, namely, reassignment. The Board does not have jurisdiction over possible future adverse actions; rather, as explained by the administrative judge, the proper procedure is to petiti on the Special Counsel. 5 C.F.R. § 1201.2(a); Alford v. Dep’t of Health, Educ. & Welfare , 1 M.S.P.R. 317, 319 (1980). 3 Mr. Wheaton’s claim also alleges that he was subjected to prohibited personnel practices under 5 U.S.C. § 2302(b)—wherein “personnel practices” are defined in 5 U.S.C. § 2302(a)—by the USDA’s threat of reassignment and change in policy concerning tour renewal travel benefits, in violation of t he merit system principles set forth in 5 U.S.C. § 2301(b) and in disregard of 5 U. S.C. § 5728. However, as noted by the administrative judge, t he Board does not have jurisdiction over a claim to a prohibited personnel practi ce under 5 U.S.C. § 2302(b) independent of an otherwise

3 Mr. Wheaton also relies on 5 C.F.R. § 1201 .3(c) as a basis fo r jurisdiction. That portion of the regulation, however, is directed to employees covered by a collective bargaining agreement and provi des that such employees may bring an appealable action involving a prohibited personnel practi ce via not more than one of the following channels: the Board, grievanc e procedures, or a petition to the Special Counsel. The regulation in no way mandates that all acti ons alleging a prohibited personnel practice are appealable. Instead, it requires that t hose actions that ar e appealable be brought in only a single forum.

2007-3289 52007-3289 6 appealable action. Cruz v. Dep’t of Navy , 934 F.2d 1240, 1245 (Fed. Cir. 1991); see 5 U.S.C. § 7701(c)(2)(B) (if agency action is before the Board, pr ohibited personnel practice may be raised as an affirmative def ense). “Congress . . . expressly recognized that not all prohibit ed personnel practices are appealable to the Board in authorizing the Special Counsel to seek corrective action fo r patterns of prohibited personnel practices which involve ‘matters not otherwis e appealable to the Board . . . .’” Wren v. Dep’t of Army , 2 M.S.P.R. 1, 2 (1980). 4 Nor can an allegation of a violation of a merit system principle under 5 U.S.C. § 2301 provide an independent basis for Board jurisdiction. Phillips v. Gen. Servs. Admin. , 917 F.2d 1297, 1298 (Fed. Cir . 1990). Hence, we cannot find that the Board erred in determi ning that Mr. Wheaton did not establish jurisdiction by a preponderance of the evidence. We also find no error by the Board in failing to order compliance with any discovery requests prior to determining that it lacked jurisdiction. There is no reason to believe that additional fact discovery would have had any impact on jurisdiction, which is a question of law. CONCLUSION For the foregoing reasons, we affirm the decision of the Board. No costs.

4 Although Mr. Wheaton also contends that jurisdiction is implied by virtue of the exclusionary phrase in 5 U. S.C. § 2302(e)(2), the court di sagrees. That provision pertains to veteran’s preference requirem ents, over which t he Board already has jurisdiction, and is not a grant of jurisdiction to the Board.