                        NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                          2009-3216


                                     STUART D. MILLER,

                                                            Petitioner,

                                               v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent.


      Stuart D. Miller, of Stuart, Florida, pro se.

      Calvin M. Morrow, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit


                                       2009-3216

                                   STUART D. MILLER,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.


      Petition for review of a decision from the Merit Systems Protection Board in
                                   DC0752080714-I-1.

                           __________________________

                            DECIDED: January 11, 2008
                           __________________________


Before GAJARSA, LINN, and MOORE, Circuit Judges.

PER CURIAM.

      Stuart D. Miller petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. See Miller v.

Dep’t of Homeland Sec., 111 M.S.P.R. 325 (May 26, 2009) (“Final Decision”). For the

reasons stated below, we affirm.

                                     BACKGROUND

      Stuart D. Miller was employed by the Department of Homeland Security

(“Agency”).   Mr. Miller held a position as a Supervisory Transportation Security
Specialist for the Transportation Security Administration (“TSA”) in Arlington, Virginia.

This was a “K band” position according to the TSA career path model. The career path

model ranks jobs within the TSA according to job qualifications and responsibilities,

which begin at “A Band” and increase through “M Band.” The TSA career path model

also determines a TSA employee’s pay level.

      On August 6, 2006, the Agency assigned Mr. Miller to a “K band” position, and

transferred him to a foreign duty assignment as a TSA Representative (“TSAR”) in

Brussels, Belgium.    Mr. Miller had applied for the foreign position in early 2006 in

response to a vacancy announcement, which advised that the position would not

exceed four years. The Agency informed Mr. Miller that he would have return rights at

the conclusion of his tour in accordance with established policies and regulations.

      On January 11, 2008, the Agency informed Mr. Miller that the TSAR position in

Brussels, Belgium would be discontinued, and that his overseas tour of duty would end

on August 5, 2008. The Agency also informed Mr. Miller that he was eligible to exercise

his return rights. On July 17, 2008, the Agency informed Mr. Miller that he would be

assigned to a different “J band” position as a Transportation Security Specialist in

Arlington, Virginia on August 6, 2008. The reassignment from the “K band” position to

the “J band” position was a downgrade, but the Agency informed Mr. Miller that he

would retain the same pay level.

      Mr. Miller notified the Agency that he was dismayed by its decision to downgrade

his position after nearly twenty years of federal service.     He also objected to the

reassignment because it was outside his commuting area. Rather than accepting the

reassignment, Mr. Miller informed the Agency that he planned to retire on




2009-3216                                   2
August 5, 2008.     Mr. Miller also requested that his accrued annual leave and

compensatory time be used to establish his eligibility for discontinued service

retirement. The Agency denied that request. It found that Mr. Miller was not eligible for

discontinued service retirement because he was not involuntarily separated from the

service, and he was subject to the expiration of his two-year foreign tour of duty with

return rights to a position in the United States. Mr. Miller then informed the Agency that

he intended to retire under the eligibility of minimum retirement age plus ten years

(“MRA + 10”). Mr. Miller retired under that provision on August 5, 2008.

       After Mr. Miller retired, he appealed to the Board alleging that the Agency

improperly reassigned him to a lower-grade position. Mr. Miller also challenged the

Agency’s denial of his request to use annual leave to establish his eligibility for a

discontinued service retirement annuity. The administrative judge (“AJ”) dismissed the

appeal for lack of jurisdiction, finding that Mr. Miller retired before the effective date of

the Agency’s reassignment:

              “While appellant did not suffer a reduction in pay, it does
              appear that the reassignment would have resulted in a
              reduction in grade from K to J band which would ordinarily
              establish jurisdiction over this appeal.     The appellant,
              however, retired from service on August 5, 2008, and the
              reassignment at issue was not scheduled to be effected until
              August 6, 2008. Thus, because appellant retired from
              service before the agency intended to effect the
              reassignment, the Board lacks jurisdiction over his reduction
              in grade.”

Miller v. Dep’t of Homeland Sec., Nos. DC-0752-08-0714-I-1 & DC-3443-08-0767-I-1

(M.S.P.B. Nov. 21, 2009) (“Initial Decision”). The AJ did not address whether the Board

had jurisdiction over Mr. Miller’s discontinued service retirement annuity claim.




2009-3216                                    3
       Mr. Miller petitioned the Board for review of the Initial Decision.     The Board

denied the petition, finding that Mr. Miller did not “nonfrivolously allege” that the Board

has jurisdiction over the Agency’s decision to downgrade his position or its denial of Mr.

Miller’s request for a discontinued service retirement annuity. See Final Decision at 5.

Mr. Miller timely filed this appeal.     We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                      DISCUSSION

       Our scope of review in an appeal from a decision of the Board is limited. A

decision of the Board must be affirmed unless it is “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” Dickey v. Off. of Pers. Mgmt., 419 F.3d 1336, 1339 (Fed. Cir.

2005). We review the question of whether the Board has jurisdiction over an appeal de

novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). Mr. Miller

carries the burden to establish the Board’s jurisdiction by a preponderance of the

evidence. See 5 C.F.R. § 1201.56(a)(2) (2009).

       Mr. Miller challenges the Agency’s decision to reassign him from his position in

Belgium to a lower-grade position in the United States.        The Board ordinarily has

jurisdiction over personnel actions take by agencies. See 5 U.S.C. § 7701(a). The

Agency’s decision to downgrade Mr. Miller’s position, however, is not subject to review

by the Board because Mr. Miller retired on August 5, 2008 before the effective date of

his reassignment, August 6, 2008. Thus, Mr. Miller was not downgraded during his

employment at TSA.         Under these circumstances, Mr. Miller may appeal his




2009-3216                                   4
reassignment only if he can establish that his retirement was involuntary. See, e.g.,

Lichtman v. Dep’t of Navy, 24 M.S.P.R. 524 (1984) (where appellant resigned before

the decision to remove him was effected, the involuntariness of the resignation was the

only issue on appeal). However, Mr. Miller’s involuntary retirement claim is currently

pending in a separate appeal before the Board, and no final decision has issued in that

case. Therefore, it is not a basis on which jurisdiction can be predicated in this case.

       Mr. Miller also contends that he is entitled to a discontinued service retirement

annuity under 5 U.S.C. § 8418(b) (“Early Retirement”) and 5 C.F.R. § 842.206

(“Involuntary Retirement”).   The Board found that Mr. Miller was not “involuntarily

separated” within the meaning of the statutory and regulatory requirements for eligibility

for such an annuity. Mr. Miller argues that his resignation following separation from his

position by reassignment outside his commuting area constitutes an involuntary

separation for this purpose. Mr. Miller also contends that he was wrongfully denied his

statutory right to use accrued annual leave to meet the length of service requirement for

a discontinued service annuity.      We disagree.      We find that the Board properly

dismissed Mr. Miller’s discontinued service retirement annuity claim for lack of

jurisdiction.

       The retirement provisions are primarily administered by the U.S. Office of

Personnel Management (“OPM”).         An individual who seeks a discontinued service

retirement annuity must first apply to OPM before seeking review by the Board. See

Edgerton v. Merit Sys. Prot. Bd., 768 F.2d 1314, 1317 (Fed. Cir. 1985); Lichtman,

24 M.S.P.R. at 527 n.2. The Board’s authority is limited to appellate review of OPM’s

final decisions regarding retirement claims. See 5 U.S.C. §§ 8347(d) & 8461(e). Mr.




2009-3216                                    5
Miller presented no evidence that he filed an application with OPM. Accordingly, the

Board properly found that it lacked primary jurisdiction over his discontinued service

retirement claim. See Edgerton, 768 F.2d at 1316. The Board also properly declined to

address Mr. Miller’s entitlement to credit for annual leave because it related to his

request for a discontinued service retirement annuity, a claim which the Board had no

authority to address.

                                       CONCLUSION

       For the foregoing reasons, the final decision of the Board dismissing Mr. Miller’s

appeal for lack of jurisdiction is affirmed.



       No costs.




2009-3216                                      6
