NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3357 WALTER J. BENN, JR., Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Walter J. Benn, Jr. , of Cincinnati, Ohio, pro se. Stephanie M. Conley , Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard , General Counsel, and Jeffrey A. Gauger , Attorney. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3357

WALTER J. BENN, JR., Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Petition for review of the Meri t Systems Protection Board in CH3443080446-I-1.

____________________________ DECIDED: April 2, 2009

____________________________ Before LOURIE, RADER, and DYK, Circuit Judges

. PER CURIAM. DECISION Walter J. Benn, Jr. appeal s from the final decision of the Merit Systems Protection Board (the “Board”) dismissing his appeal for lack of jurisdiction. Benn v. Dep’t of Veterans Affairs , CH-3443-08-0446-I-1 (M.S.P.B. S ept. 3, 2008). Because Benn has not demonstrated that the Board’s decision wa s an abuse of discretion, contrary to law, or otherwise reversible, we affirm

. BACKGROUND Benn served as a Supply Technician at t he Department of Veterans Affairs (the “VA”) in Cincinnati, Ohio. On March 2, 2004, the VA denied a request by Benn toreclassify his then-GS-6 position to the GS -7 level. Benn appealed that classification decision to the Office of Personnel Managem ent (“OPM”), which determined that his position should actually be at the GS-5 leve l. On October 15, 2005, the VA notified Benn by letter that his position would be dow ngraded from the GS-6 level to the GS-5 level and that he was entitled to grade retent ion for two years and then pay retention. Benn’s grade retention was terminat ed effective October 28, 2007. On March 24, 2008, Benn appealed to the Boar d, alleging that he was reduced in grade as a result of the agency’s failure to comply with 5 U.S.C. § 5364, which he argued entitled him to priority placement in a position at the same or higher grade than the one previously held. The administrative judge (“AJ”) assigned to the case issued an acknowledgment order informing Benn that t he Board might lack jurisdiction over his claim and directing him to file evidence and arguments to prove t hat the challenged action was within the Board’s jurisdiction. Benn candidly responded that he knew that “the instant complaint may not ‘directly’ seem to fall within MSPB ju risdiction, but [he] hope[d] to present this to be an adverse action in the form of an action Management ‘failed to take,’” inconsistent with, pres umably, 5 U.S.C. § 2302, which uses such language and which Benn referenced at other times during his appeal. On May 20, 2008, the AJ dismissed Benn’s appeal for lack of jurisdiction, stating that no hearing was held because Benn did not raise any non-frivolous issue of fact relating to jurisdiction. The AJ stated that no law, rule, or regul ation grants the Board jurisdiction to review either agency reclassi fication actions pursuant to OPM job grading standards or the termination of any employ ee’s pay and grade retent ion pursuant to an agency reclassification determination. Be cause OPM had reclassified Benn’s position

2008-3357 -2-downward but provided both grade and pay ret ention pursuant to the October 15, 2005 letter, the AJ found that Benn had failed to raise factual allegations that, if proven, would show that his employment was affect ed by an agency action appealable to the Board under any law, rule, or regulation. Finally, the AJ stated that, to the extent that Benn was alleging a violation of 5 U.S.C. § 2302, there was no ju risdiction over those general allegations of prohibited pers onnel practices because his allegations were not raised in conjunction with an otherwise appealable action. Benn filed a petition for review of the AJ ’s initial decision. On September 3, 2008, the Board declined review and thus rendered the AJ’s init ial decision final. Benn timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s dec ision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S. C. § 7703(c) (2006). This c ourt reviews whether the board has jurisdiction over an appeal de novo

. Torain v. U.S. Postal Serv. , 83 F.3d 1420, 1422 (Fed. Cir. 1996). We are bound, however, by the AJ’s factual findings on which a jurisdictional determination is based “unl ess those findings are not supported by substantial evidence.” Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (Fed. Cir. 1998). Furthermore, the petitioner has the bur den to establish the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a) (2008).

2008-3357 -3-In the instant action, Benn and the governm ent dispute what t he basis of Benn’s appeal is. Benn argues that the Board and the VA have skewed the issue presented to portray it as involving a disgruntled empl oyee who is challenging the downgrading of his position. Instead, Benn asserts that the act ual issue is the VA’s failure to afford him priority placement consideration, which he believes is due under 5 U.S.C. § 5364. He contends that if he had been gr anted priority placement, he would have achieved employment at a higher grade than he curr ently has. Because he was not granted priority placement, Benn argues that the reduction in pay that occurred when his pay retention ended constituted an adverse action in violation of 5 U.S.C. § 2302. In response, the government argues that Benn indicated on the appeal form filed with the Board that he was appealing the reduction in grade or pay of his position. In addition, the government asserts that Benn has made no showing bef ore the Board or this court that failure to comply with 5 U. S.C. § 5364 confers the right to appeal to the Board. Finally, the governm ent argues that 5 U.S.C. § 2302 simply defines prohibited personnel practices and does not grant the Boar d jurisdiction over general allegations of prohibited personnel practices absent a specific appealable action. We agree with the government that the Board’s decis ion was not an abuse of discretion, contrary to law, or otherwise reversible. It is clear that the Board does not have jurisdiction over classification appeals, which are within the pr ovince of OPM and only appealable to that entity, aside from s pecial circumstances not applicable to this

case. See Pierce v. Merit Sys. Prot. Bd. , 242 F.3d 1373, 1375-76 (Fed. Cir. 2001); Saunders v. Merit Sys. Prot. Bd. , 757 F.2d 1288, 1290 (Fed. Cir. 1985). Here, OPM afforded Benn grade and pay retention under 5 U.S.C. §§ 5362 and 5363 after

2008-3357 -4-2008-3357 -5- reclassification of his position, and Benn c annot appeal OPM’s decision to the Board. See 5 U.S.C. § 5366(b) (2006); C.F. R. § 752.401(b)(8) (2008). To the extent that it is a separate issue, Benn’s claim to priority placement under 5 U.S. C. § 5364 fails because he has made no showing of how that section, which describes remedial actions the OPM may require an agency to take to less en the impact of a reclassification or reduction-in-force action, grants him any appeal rights. Benn has also failed to demonstrate that failure to grant priority placement under 5 U.S.C. § 5364 falls within the personnel practices prohibi ted by 5 U.S.C. § 2302. R egardless, an allegation of prohibited personnel practice s under 5 U.S.C. § 2302 is not an independent source of appellate jurisdiction, as the Boar d correctly found in Benn’s case. Saunders , 757 F.2d at 1290 (“Section 2302(b) is not an independent s ource of appellate jurisdiction and does not itself authorize an appeal.”) (citation omitted). ∗ Thus, the Board did not abuse its discret ion, commit any error of law, or otherwise reversibly err, in dismissing Benn’s appeal for lack of jurisdiction. Accordingly, we affirm

. COSTS No costs.

∗ Actions contrary to 5 U.S.C. § 2302(b)(8) can be appealed pursuant to 5 U.S.C. § 1221, but only if there is a “right to appeal directly to the Merit Systems Protection Board” or “applicant seeks correct ive action . . . from the Special Counsel and” either appeals within 60 days of notification of the termi nation of investigation or receives no notification of corrective acti on within 120 days. 5 U.S.C. § 1214(a)(3) (2006). Under the present fa cts, however, there is no direct right to appeal and no allegation that petitioner has sought corre ctive action from the Special Counsel.