       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

              JOHN-PIERRE BANEY,
                   Petitioner,

                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2010-3184
              __________________________

   Petition for review of the Merit Systems Protection
Board in DA3443100262-I-1.
              __________________________

              Decided: February 15, 2011
             ___________________________

   JOHN-PIERRE BANEY, Seagoville, Texas, pro se.

   STEPHANIE M. CONLEY, Attorney, Office of General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
              __________________________
BANEY   v. MSPB                                          2


    Before BRYSON, DYK, and PROST, Circuit Judges.
PER CURIAM.


                        DECISION


     John-Pierre Baney appeals a decision of the Merit
Systems Protection Board dismissing his appeal for lack
of jurisdiction. Because Mr. Baney failed to allege claims
falling within the Board’s jurisdiction, we affirm.

                      BACKGROUND

    Mr. Baney works for the Bureau of Prisons at a facil-
ity in Seagoville, Texas. On February 16, 2010, he filed
an appeal with the Board alleging retaliation, breach of
contract, and workplace violence. In his appeal, he indi-
cated that he had filed two other complaints concerning
the same underlying events—an Individual Right of
Action (“IRA”) complaint that he filed with the Office of
Special Counsel (“OSC”) and a complaint under the
Uniformed Services Employment and Reemployment
Rights Act (“USERRA”) that he filed with the Department
of Labor. He did not provide a copy of either complaint,
and he did not provide any details about the events un-
derlying his claims on appeal.

    The administrative judge who was assigned to the
case ordered Mr. Baney to show why the Board had
jurisdiction over the appeal. Prior to the due date for Mr.
Baney to respond to the show cause order, the adminis-
trative judge issued a second order requiring Mr. Baney
to submit a copy of his OSC complaint, to identify the
actions that he claimed were taken against him in retalia-
tion for his whistleblowing disclosures and the person
3                                              BANEY   v. MSPB


who took those actions, and to explain how his disclosures
contributed to the agency’s decision to retaliate against
him. For the USERRA claim, the administrative judge
directed Mr. Baney to disclose whether he had chosen not
to file a complaint with the Secretary of Labor or had
opted to file a complaint before the Secretary that was
still pending. The administrative judge also ordered Mr.
Baney to identify each action that he alleged was taken
based on discrimination because of his status as a vet-
eran.

    Mr. Baney did not comply with any of the administra-
tive judge’s directives. Instead, he filed a motion for a
formal hearing, asserting that he had an “unconditional
right to a hearing” based on Baney v. Department of
Justice, 109 M.S.P.R. 242, 249 (2008). He did not allege
any specific facts about the retaliatory or discriminatory
actions purportedly taken against him, but alluded to
several additional acts of alleged misconduct by the
agency, including obstruction of justice, perjury, conflict of
interest, and hostile environment based on retaliation.
He provided no details regarding the events underlying
these allegations.

    The administrative judge dismissed Mr. Baney’s ap-
peal for lack of jurisdiction because Mr. Baney had not
identified a law, rule, or regulation that would give the
Board jurisdiction over his appeal. Mr. Baney petitioned
the full Board for review, alleging that he had been im-
properly denied a hearing. He also alleged specific facts
about his breach of contract action, claiming that the
agency had retaliated against him for filing appeals by
revoking 13 days of military leave he had won in an
earlier case before the Board.
BANEY   v. MSPB                                          4


    The Board denied his petition for review. The Board
explained that Mr. Baney had not provided any of the
information or documentation necessary to show that the
Board had jurisdiction over his claims. Rejecting Mr.
Baney’s contention that he had an unconditional right to
a hearing, the Board noted that a USERRA claimant’s
right to a hearing attaches only after the claimant dem-
onstrates the Board has jurisdiction over his appeal. The
Board stated that it would not consider the specific alle-
gations of agency misconduct that were raised for the first
time in his petition for review of the administrative
judge’s decision. Mr. Baney now petitions for review by
this court.

                       DISCUSSION

    Mr. Baney contends that, as a USERRA claimant, he
had an unconditional right to a hearing before the Board
based on our decision in Kirkendall v. Department of the
Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc). Although
this court held in Kirkendall that USERRA claimants
have the right to a hearing because they are “appeals”
under 5 U.S.C. § 7701, it did not hold that the right to a
hearing attaches simply because a claimant files a claim
with the Board that he denominates as a USERRA claim.
Because the right to a hearing is based on section 7701,
that right only attaches after a USERRA claimant makes
a non-frivolous allegation of Board jurisdiction. Downs v.
Dep’t of Veterans Affairs, 100 M.S.P.R. 139, 148 (2008). 1



   1   Mr. Baney has made the same argument to this
court before, and the court has twice rejected it on the
same grounds. See Baney v. Merit Sys. Prot. Bd., 360 Fed.
Appx. 119, 120 (Fed. Cir. 2010); Baney v. Dep’t of Justice,
327 Fed. Appx. 895, 900 (Fed. Cir. 2009).
5                                              BANEY   v. MSPB


    Mr. Baney has failed to satisfy the threshold showing
necessary to show that the Board has jurisdiction over his
USERRA claim. He has provided no details about his
claim. He has not described the protected right or benefit
that he was allegedly denied because of his military
status. 2 He did not respond to the administrative judge’s
inquiries as to whether he had pursued the same claim
with the Department of Labor or whether any such claim
before the Department of Labor was still pending, issues
that affect the Board’s jurisdiction. See 38 U.S.C. §
4324(b); Becker v. Dep’t of Veterans Affairs, 107 M.S.P.R.
327, 333-34 (2007) (USERRA complainant who files a
complaint with the Department of Labor pursuant to 38
U.S.C. § 4322 must exhaust administrative remedies
before initiating a proceeding before the Board). Because
Mr. Baney failed to respond to the administrative judge’s
inquiries directed to whether the Board had jurisdiction
over his USERRA claim, we affirm the Board’s decision
dismissing his claim for lack of jurisdiction.

    We also affirm the Board’s decision dismissing Mr.
Baney’s IRA appeal without a hearing. To establish that
the Board possessed jurisdiction to consider an IRA
appeal, Mr. Baney had to demonstrate that he had ex-
hausted his administrative remedies before the OSC and
had to make non-frivolous allegations that (1) he engaged
in whistleblowing activity by making a protected disclo-
sure and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel
action as defined under 5 U.S.C. § 2302(a). Yunus v. Dep’t
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).


    2   Like the Board, we do not consider Mr. Baney’s
belated assertion that the agency deprived him of 13 days
of military leave, a contention that was raised for the first
time in his petition for review before the full Board.
BANEY   v. MSPB                                           6


If the employee fails to make non-frivolous allegations of
whistleblower activity and retaliation, the Board is not
required to hold a hearing on his claim. Kahn v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008).

    In particular, Mr. Baney failed to provide a copy of his
OSC complaint, despite the administrative judge’s explicit
requirement that he do so. His failure to respond to the
administrative judge’s inquiry as to the OSC proceedings
made it impossible for the administrative judge to verify
the Board’s jurisdiction, which attaches only after an IRA
claimant has exhausted his administrative remedies. See
Yunus, 242 F.3d at 1371. He has also failed to identify
the actions allegedly taken against him or the protected
disclosures he claims to have made that led to those
actions. In light of Mr. Baney’s complete failure to comply
with the administrative judge’s orders directed at deter-
mining whether the Board had jurisdiction over his
appeal, we hold that the Board properly dismissed his
IRA claim for lack of jurisdiction.

                       AFFIRMED
