Kevin Bailey Hornberger v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN BAILEY HORNBERGER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1156
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-24-0906-I-1.
______________________
Decided: December 2, 2025
______________________
K EVIN BAILEY HORNBERGER , North East, MD, pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by
K ATHERINE M ICHELLE SMITH .
______________________
Before D YK, P ROST , and REYNA, Circuit Judges.
P ER CURIAM .
Case: 25-1156 Document: 32 Page: 1 Filed: 12/02/2025

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HORNBERGER v. MSPB 2
Kevin Bailey Hornberger petitions from a final decision
of the Merit Systems Protection Board (“Board”) dismissing
his appeal of a Library of Congress (“LOC”) decision for
lack of jurisdiction. Hornberger v. Libr. of Cong., No. DC-
3443-24-0906-I-1, 2024 WL 4454328 (M.S.P.B. Oct. 4,
2024) (initial decision became final on November 8, 2024).
For the reasons set forth below, we affirm.
BACKGROUND
Mr. Hornberger worked as a Management Analyst
with the licensing division of the LOC’s Copyright Office.
S.A. 48.1 In February 2023, the Copyright Office termi-
nated him from his position. The LOC sustained Mr. Horn-
berger’s removal following its review of an advisory
decision by the Federal Mediation and Conciliation Ser-
vice. Mr. Hornberger appealed the LOC’s decision to the
Board.
In October 2024, the Board dismissed Mr. Hornberger’s
appeal for lack of jurisdiction. The Board explained that to
file an appeal with the Board challenging an adverse ac-
tion, an employee must generally be employed either in an
Executive Branch agency or in the competitive service. The
Board noted that LOC employees work in the Legislative
Branch and do not hold positions within the competitive
service. The Board thus concluded that it lacked jurisdic-
tion over Mr. Hornberger’s appeal.
Mr. Hornberger timely petitioned this court for review.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
1 “S.A.” refers to the supplemental appendix in-
cluded with the government’s informal brief.
Case: 25-1156 Document: 32 Page: 2 Filed: 12/02/2025

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HORNBERGER v. MSPB 3
§ 7703(c). The petitioner bears the burden of establishing
reversible error in the Board’s final decision. Sistek v. Dep’t
of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020). We
review the Board’s legal decisions de novo and its findings
of fact for substantial evidence. McIntosh v. Dep’t of Def.,
53 F.4th 630, 638 (Fed. Cir. 2022).
On petition to this court, Mr. Hornberger argues that
the Board could have heard the merits of his case instead
of dismissing for lack of jurisdiction.
This court has previously held that “[b]ecause the
[LOC] is part of the Legislative Branch, its employees are
not in the competitive service . . . and may not appeal ad-
verse actions to the [Board].” Gardner v. Libr. of Cong.,
774 F.2d 1081, 1082 (Fed. Cir. 1985); see also Nieuwdorp
v. Libr. of Cong., 872 F.2d 1000, 1002 (Fed. Cir. 1989).
Mr. Hornberger has not explained why this precedent
would not apply here.2 We therefore affirm the Board’s dis-
missal of his appeal.
The Board also lacks authority to transfer Mr. Horn-
berger’s appeal to another forum. See 5 U.S.C. § 1204.
CONCLUSION
We have considered Mr. Hornberger’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.
2 While Mr. Hornberger cites to Strausbaugh v. Gov-
ernment Printing Office, 111 M.S.P.R. 305 (2009), for the
proposition that employees of the Government Printing Of-
fice, another legislative agency, may appeal an adverse ac-
tion to the Board, whatever the meaning of that decision,
it is not binding on our court.
Case: 25-1156 Document: 32 Page: 3 Filed: 12/02/2025

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