       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               RANDY ALLEN ESTES,
                    Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2016-1801
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. PH-4324-15-0268-I-1.
                ______________________

               Decided: August 25, 2016
                ______________________

   RANDY ALLEN ESTES, College Park, MD, pro se.

   KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
               ______________________

Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.
PER CURIAM.
2                                            ESTES   v. MSPB



    Randy Estes (“Mr. Estes”) seeks review of a decision
of the Merit Systems Protection Board (“MSPB”) dismiss-
ing his appeal for lack of jurisdiction. Estes v. Dep’t of
Army, No. PH-4324-15-0268-I-1, 2016 WL 556648
(M.S.P.B. Feb. 10, 2016). Specifically, the Board found
that the Department of the Army (“Army”) was not a co-
employer under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”) (codified
at 38 U.S.C. §§ 4301–33) and that, therefore, it lacked
jurisdiction. For the reasons explained below, we affirm.
                      BACKGROUND
    Mr. Estes was employed by The Informatics Applica-
tions Group, Inc. (“TIAG”) after leaving his active-duty
service with the Army. See Estes v. Dep’t of Army, PH-
4324-15-0268-I-1, 2015 WL 4558557 (M.S.P.B. July 23,
2015). Once hired by TIAG, Mr. Estes was released from
active duty and placed into a reserve status with the
Army. TIAG contracts with the Army to provide contract
personnel in support of the Army’s mission. On June 12,
2012, Mr. Estes was selected by TIAG to service a con-
tract with the Army.
    Before the Administrative Judge, Mr. Estes testified
that, on or about April 4, 2013, representatives from
TIAG met with representatives from the Army to discuss
Mr. Estes’s poor performance. Army officials informed
Mr. Estes’s supervisors at TIAG that they were dissatis-
fied with his performance and wanted him removed.
TIAG removed Mr. Estes from the assignment and termi-
nated his employment with TIAG.
    Mr. Estes appealed this termination to the Board on
March 21, 2015, claiming that the Army exerted sufficient
influence over TIAG such that it is properly considered
his co-employer under the USERRA. Mr. Estes alleged
that the Army influenced TIAG to remove him from his
position in retaliation for engaging in protected uniformed
ESTES   v. MSPB                                             3



service and failed to provide Mr. Estes due process in that
removal.
    The Administrative Judge dismissed the case for lack
of jurisdiction, finding that, even where the agency de-
mands a contract employee be removed from the agency’s
premises, the agency does not create a relationship suffi-
cient to support jurisdiction under the relevant statutes.
Mr. Estes filed a petition for review of the initial decision,
and the Board denied the petition for review and affirmed
the initial decision, which became the Board’s final deci-
sion pursuant to 5 C.F.R. § 1201.113(b). See Estes, 2016
WL 556648, at ¶ 1.
                        DISCUSSION
    We review de novo the MSPB’s determinations on ju-
risdiction, but review for substantial evidence factual
findings that underlie the MSPB’s jurisdictional analysis.
See Younies v. Merit Sys. Prot. Bd., 662 F.3d 1215, 1218
(Fed. Cir. 2011) (citing Parrott v. Merit Sys. Prot. Bd., 519
F.3d 1328, 1334 (Fed. Cir. 2008)). “The Board’s jurisdic-
tion is not plenary; rather, it is limited to actions desig-
nated as appealable to the Board ‘under any law, rule, or
regulation.’” Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885,
886 (Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a)). Mr.
Estes has the burden of establishing the Board’s jurisdic-
tion. See 5 C.F.R. § 1201.56(a)(2); see also Kirkendall v.
Dep’t of Army, 479 F.3d 830, 846 (Fed. Cir. 2007) (noting
that USERRA should be broadly construed, and any
“interpretive doubt” should be “resolved in the veteran’s
favor”).
    The jurisdiction question before us hinges on whether
substantial evidence supports the Board’s conclusion that
the Army was not a co-employer of Mr. Estes under the
USERRA. 38 U.S.C. § 4304(4)(A)(ii) provides the defini-
tion of the term “employer” as it is used throughout the
USERRA: “[T]he term ‘employer’ means any person,
institution, organization, or other entity that pays salary
4                                            ESTES   v. MSPB



or wages for work performed or that has control over
employment opportunities, including . . . the Federal
Government.” If the Army exercised direct control over
the employment decisions of TIAG, it would be a co-
employer within the meaning of the statute and the Board
would have jurisdiction to adjudicate Mr. Estes’s underly-
ing claims.
    In this case, the Administrative Judge made a num-
ber of relevant factual findings. Of particular importance
was the finding that “[w]hat actions TIAG ultimately took
in regard to their employees was their decision alone, not
the agency’s.” Estes, 2015 WL 4558557. This conclusion
was reached after a hearing on the matter at which the
Administrative Judge heard testimony from Mr. Estes, as
well as his supervisors at TIAG and at the Army. Mr.
Williams and Mr. Wang were employees of the Army who
met with Mr. Estes when he arrived at the Army on
contract from TIAG. The Administrative Judge credited
the testimony of Mr. Williams and Mr. Wang indicating
“that they were not given the opportunity to accept or
reject appellant’s employment with TIAG and saw [that]
meeting only as an opportunity to meet the individual
selected by TIAG to service the contract and to familiarize
TIAG’s selectee with the operation and requirements of
the agency.” Id. Mr. Estes characterized the meeting as
an interview, but the Administrative Judge found that,
“at [that] meeting, there were none of the usual trappings
of a job interview.” Id.
    The Administrative Judge also found that TIAG could
have offered Mr. Estes “‘bench time’ pay” after Mr. Estes
was removed from the agency contract and was waiting
for another contract opportunity to arise. Id. Mr. Estes
even admitted in his testimony before the Administrative
Judge that TIAG paid “bench time” pay to employees not
working on a specific contract but waiting to be placed
into active service on a contract. Id. The Administrative
Judge further found that “[n]othing in the evidence sug-
ESTES   v. MSPB                                          5



gests that the agency demanded that TIAG fire the appel-
lant altogether.” On appeal, Mr. Estes presents no reason
for us to conclude these factual findings and credibility
determinations were in error, nor are we able to discern
any error from our review of the record.
    Any reliance Mr. Estes may place on the April 4,
2013, meeting in which Army personnel discussed Mr.
Estes’s performance with his supervisor at TIAG is mis-
placed. As the Administrative Judge determined, “the
agency may voice its dissatisfaction with the performance
of a contractor employee without creating a co-employer
relationship.” Id.; see also Silva v. Dep’t of Homeland
Sec., No. DC-4324-08-0776-I-1, 2009 WL 3047237, at *369
(M.S.P.B. Sept. 23, 2009) (finding that “the government
will not automatically be deemed to be the ‘employer’ of
all contractor personnel under 38 U.S.C. § 4303(4)” as
“USERRA speaks in terms of ‘control’ over employment
opportunities”).
    It is true that, depending upon the circumstances, an
agency could exercise sufficient control over an employee’s
continued employment status that it would become a co-
employer. For example, if an agency knows it is the only
entity hiring contractors from a third party company and
the agency states that a contractor is no longer welcome
on any of its contracts, the agency could be deemed to
exercise control over the employee’s continued employ-
ment status because the third party company would have
nowhere else to place the contractor and would therefore
have no choice but to fire him. Alternatively, an expres-
sion of dissatisfaction by an agency could be so powerful
and controlling that it forces the third party company to
terminate the employee’s status at the company. In this
case, however, the Administrative Judge made findings of
fact that justify the conclusion that no such level of con-
trol was exercised with respect to Mr. Estes. The full
record demonstrates that TIAG independently decided to
terminate Mr. Estes because (1) it could not place him on
6                                            ESTES   v. MSPB



another contract that met his skill set and salary, and (2)
it felt Mr. Estes did not understand what it meant to be a
contractor supporting the government.
                       CONCLUSION
    Because jurisdiction in this case requires a finding
that the Army had “control over employment opportuni-
ties,” see 38 U.S.C. § 4303(4)(A)(ii), and because we find
that the Administrative Judge’s findings to the contrary
are supported by substantial evidence, we affirm.
                      AFFIRMED
                          COSTS
    No costs.
