       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

              JOHN E. MANCINELLI,
                   Petitioner,
                          v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2010-3102
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. PH-3443-09-0434-I-1.
              ___________________________

             Decided: September 24, 2010
             ___________________________

   JOHN E. MANCINELLI, of Forest Hill, Maryland, pro se.

   MICHAEL A. CARNEY, Attorney, Office of the 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.
              __________________________
MANCINELLI   v. MSPB                                      2


   Before RADER, Chief Judge, LINN, and DYK, Circuit
                        Judges.
PER CURIAM.


     John E. Mancinelli (“Mancinelli”) petitions for review
of a final order of the Merit Systems Protection Board
(“MSPB” or “Board”) dismissing his appeal for lack of
jurisdiction. Mancinelli v. Dep’t of Defense, PH-3443-09-
0434-I-1 (M.S.P.B. January 12, 2010) (“Final Order”). We
affirm.
                       BACKGROUND
    Mancinelli was a career competitive service employee
at the Defense Security Service (“DSS”), a component
agency of the Department of Defense (“DOD” or “the
agency”). On February 17, 2008, the agency converted
Mancinelli from the competitive service to the excepted
service. Title 5 C.F.R. § 302.102(b)(1) and (2) provide that
when an employee is converted from the competitive to
the excepted service, the agency shall notify the employee
of the nature of the conversion, and obtain a written
statement of understanding from the employee regarding
the conversion of the position from the competitive service
to the excepted service. The agency admits that it failed
to comply with these notice requirements with respect to
Mancinelli’s February 17 conversion. Upon involuntary
separation from the competitive service due to the elimi-
nation of an employee’s current position, an employee
may be eligible to elect a discontinued service retirement
(“DSR”). Mancinelli contends that he was entitled to
receive notice of the availability of DSR benefits, and that
no such notice was received. The source of this alleged
notice obligation is unclear. In May of 2008, the agency
converted Mancinelli again, this time from a Title 5
3                                       MANCINELLI   v. MSPB


excepted service position to a Title 10 excepted service
position under the Defense Civilian Intelligence Personnel
System (“DCIPS”).
    Mancinelli alleges that he did not learn that he should
have been provided excepted service conversion notifica-
tion as well as notice of his opportunity to elect DSR in
advance of the February 17 conversion until June 11,
2008. As an eligible employee with over twenty-five years
of service, Mancinelli contends that if he had been pro-
vided proper notice, he would have elected and received
DSR. Mancinelli thereafter sought DSR from the agency.
The agency notified him that it had concluded, in consul-
tation with the Office of Personnel Management (“OPM”),
that he was now ineligible for DSR. The agency’s position
seemed to be based solely on the fact that Mancinelli had
already been converted on February 17, 2008, from the
competitive service to the excepted service, and because of
this conversion, the agency lacked the authority to grant
him DSR in connection with the subsequent May 2008
conversion within the excepted service.
    On April 30, 2009, Mancinelli appealed to the Board.
In an initial decision, an administrative judge (“AJ”)
dismissed his appeal for lack of jurisdiction. Mancinelli v.
Dep’t of Defense, PH-3443-09-0434-I-1 (M.S.P.B. Aug. 5,
2009) (“Initial Decision”). Mancinelli petitioned the Board
for review, and on January 12, 2010, the Board issued a
final order denying the petition for review. See Final
Order. The Board concluded that the AJ correctly deter-
mined that Mancinelli did not suffer an appealable action
and that therefore, the Board lacked jurisdiction. 1



       1    The Board vacated a portion of the initial de-
cision that found that Mancinelli was not an employee
with adverse action appeal rights.
MANCINELLI   v. MSPB                                      4


Mancinelli timely appealed to this court, and we have
jurisdiction pursuant to 5 U.S.C. § 1295(a)(9).
                       DISCUSSION
    We review the Board's decisions about jurisdiction
without deference. Butler v. Soc. Sec. Admin., 331 F.3d
1368, 1371-72 (Fed. Cir. 2003). The burden rests on the
employee to establish that the Board has jurisdiction. 5
C.F.R. § 1201.56(a)(2)(i); Stern v. Dep’t of the Army, 699
F.2d 1312, 1314 (Fed. Cir. 1983). The Board’s jurisdiction
is not plenary, but is “limited to those areas specifically
granted by statute or regulation.” Cowan v. United
States, 710 F.2d 803, 805 (Fed. Cir. 1983).
     Mancinelli first argues that the Board had jurisdiction
over his appeal because the agency failed to comply with 5
C.F.R. § 302.102(b)(1) and (2) and that the agency’s
failure to follow a regulation somehow constitutes a
“prohibited personnel practice” within the Board’s juris-
diction. An allegation of a prohibited personnel practice
does not provide an independent source of Board appel-
late jurisdiction under 5 U.S.C. § 7701. Cruz v. Dep’t of
Navy, 934 F.2d 1240, 1246 (Fed. Cir. 1991) (en banc); see
also 5 U.S.C. § 2302 (listing prohibited personnel prac-
tices for which the Office of Special Counsel has authority
to investigate and to remedy). As we have recognized, the
Board lacks jurisdiction over allegations of prohibited
personnel practices unless those allegations are part of an
action alleging reprisal for whistleblowing activities,
Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 690-91 (Fed.
Cir. 1992), or are coupled with an independently appeal-
able adverse action. Brodt v. Merit Sys. Prot. Bd., 11 F.3d
1060, 1061 (Fed. Cir. 1993); see also 5 C.F.R. § 1201.3(a)
(listing appealable adverse actions). Mancinelli’s claim of
jurisdiction based upon an alleged prohibited personnel
practice is insufficient because he fails to allege whistle-
5                                       MANCINELLI   v. MSPB


blowing reprisal or an independently appealable adverse
action.
    Mancinelli also argues his appeal is within the
Board’s jurisdiction because the agency erred by not
offering him voluntary early retirement. He asserts that
the Board has jurisdiction to review determinations
affecting rights under the Civil Service Retirement Sys-
tem (“CSRS”). However, the Board’s jurisdiction to de-
termine an individual’s rights under the CSRS only
attaches after OPM has issued a final decision on the
issue. See 5 C.F.R. §§ 831.109–110. No final OPM deci-
sion exists from which Mancinelli can appeal. In order to
bring his claim within the jurisdiction of the Board,
Mancinelli must first formally apply to OPM for relief. If
he does so, OPM must address the timeliness issue—in
particular, whether Mancinelli’s apparent lack of timeli-
ness is excused by his lack of notice.2
    We therefore affirm the Board’s opinion dismissing for
lack of jurisdiction.
                      AFFIRMED




        2   Mancinelli also argues that the Board failed to
consider evidence that he first produced on petition for
review to the Board. New and material evidence may be
introduced on petition for review before the Board if the
evidence was not available, despite due diligence, when
the record below closed. 5 C.F.R. § 1201.115(d)(1). As
Mancinelli failed to show that he exercised due diligence
or that the evidence was unavailable prior to the closing
of the record below, the Board properly determined that it
would not consider this new evidence on petition for
review. In any event, there is no showing that this evi-
dence had any bearing on the Board’s jurisdiction.
MANCINELLI   v. MSPB           6


                       COSTS
No costs.
