       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

            ROBERT MICHAEL MILLER,
                   Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                 Respondent

FEDERAL DEPOSIT INSURANCE CORPORATION,
                 Intervenor
           ______________________

                      2015-3054
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-1221-13-0574-W-2.
                ______________________

                Decided: August 6, 2015
                ______________________

   ROBERT MICHAEL MILLER, Fairfax, VA, pro se.

     STEPHEN FUNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by BRYAN G. POLISUK.

    ERIN MURDOCK-PARK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
2                                            MILLER   v. MSPB



Washington, DC, for intervenor. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
               ______________________

    Before PROST, Chief Judge, NEWMAN, and O’MALLEY,
                    Circuit Judges.
PER CURIAM.
     Robert M. Miller appeals the decision of the Merit
System Protection Board (“Board”) dismissing his indi-
vidual right of action (“IRA”) appeal because Miller failed
to allege that he made a protected disclosure under 5
U.S.C. § 2302(b)(8) (2012), amended by Whistleblower
Protection Enhancement Act of 2012 (“WPEA”), Pub. L.
No. 112–199, 126 Stat. 1465. Miller v. Fed. Deposit Ins.
Co., 2014 M.S.P.B. 83 (2014) (“Board Decision”). We
affirm.
                             I
                             A
    Miller began his employment with the Federal Depos-
it Insurance Corporation (“FDIC”) as an Economic Ana-
lyst with the San Francisco Regional Division of
Insurance and Research on March 10, 2008. In light of
complaints regarding comments Miller allegedly made in
potential violation of the FDIC’s anti-harassment policy,
the FDIC issued a Letter of Warning to Miller on May 3,
2011. In light of the Letter of Warning, Miller filed a Step
1 grievance, titled “Grievance of Matters Relating to
Terms of Employment, Breach of Agreement, and Viola-
tions of Law and Policy,” in accordance with the
FDIC/NTEU Term Collective Bargaining Agreement. In
the Step 1 grievance, filed on May 29, 2011, Miller alleged
a variety of errors in the investigation of his allegedly
harassing comments, including, inter alia, that: (1) the
investigation was not performed by an impartial investi-
MILLER   v. MSPB                                          3



gator; (2) he was not sufficiently notified of his rights
under FDIC regulations; (3) the allegations lacked suffi-
cient detail; (4) the allegations did not constitute harass-
ment; (5) the FDIC did not conduct adequate harassment
training; and (6) the FDIC’s harassment policy was inad-
equate. Miller claimed that the investigation into his
comments, and the Letter of Warning, caused adverse
employment actions, including, inter alia: (1) failure to
perform a desk audit for a promotion, (2) failure to pro-
mote Miller; (3) failure to publish papers by Miller; (4)
exclusion of Miller from opportunities for experience and
advancement; and (5) a low performance evaluation.
Miller requested, as one form of relief, to be a member of a
working group to revise the FDIC’s sexual harassment
policy, procedures, and training, due to Miller’s prior
experience developing sexual harassment procedures for
the United States Army and Army ROTC. 1 The FDIC
denied his Step 1 grievance on July 14, 2011.
    Miller filed a Step 2 grievance on July 22, 2011, again
alleging that the FDIC erred on multiple grounds in
issuing the Letter of Warning. Miller reiterated his
arguments that the FDIC lacked a sufficient anti-
harassment policy, necessary training for avoiding har-
assment, and appropriate procedures for investigations
into complaints of harassment. Miller again requested
the opportunity to be part of a working group to improve
the FDIC’s harassment policy and procedures. The FDIC
denied his Step 2 grievance on August 26, 2011, in part
because the FDIC claimed that the Letter of Warning was
only an informal inquiry, not a disciplinary or adverse
action, and did not lead to charges of misconduct. Miller
subsequently filed a Step 3 grievance on September 8,



   1    Miller also requested an expunging of his record, a
promotion with back pay, and restoration of sick leave
used in light of the allegations.
4                                           MILLER   v. MSPB



2011, alleging the same errors in the FDIC’s investigatory
process and the same lack of adequate harassment policy
or training. Miller claimed that his supervisors had taken
further retaliatory action against him, such as decreasing
the number of opportunities for Miller to make presenta-
tions and cancelling various proposed work details. The
FDIC denied his Step 3 grievance.
    Miller made two separate disclosures outside of the
formal grievance process. On May 26, 2011, Miller con-
tacted the FDIC Internal Ombudsman with his concerns
about FDIC procedures and policies. Miller claimed that
the “FDIC violated the law, several United States Equal
Employment Opportunity Commission [(“EEOC”)] Com-
pliance Guidelines, and many of its own policies and
procedures,” and that the final decision in his case was
“based on a faulty understanding of the law and policies.”
Resp’t’s App’x (“R.A.”) 122. The Ombudsman referred
Miller to an EEOC Counselor to discuss any allegations of
discrimination. On February 7, 2012, Miller contacted
Acting Chairman Martin J. Gruenberg regarding “FDIC
Values, Culture Change, Merit System Principles”. R.A.
89–92. After detailing the allegations, the grievance
process, and his injuries, Miller contended that the inves-
tigation process was inadequate, the FDIC policies for
handling harassment complaints were unclear, and
members of the FDIC management lied during the inves-
tigation. Gruenberg referred Miller to his Chief of Staff,
Barbara Ryan, but Ryan took no further action.
                            B
    After completing the grievance process with no resolu-
tion, Miller filed a complaint with the Office of Special
Counsel (“OSC”) on February 17, 2012. Miller alleged
that the FDIC retaliated against him due to whistleblow-
ing disclosures he made during the grievance process,
including his statements that the FDIC procedures and
policies regarding harassment were inadequate.          In
MILLER   v. MSPB                                         5



particular, Miller claimed that he informed the FDIC that
the agency: (1) violated Supreme Court precedent regard-
ing the required manner of conducting sexual harassment
investigations; and (2) failed to provide anti-harassment
policies that met the minimally-sufficient standards of
EEOC guidances. Miller did not mention his communica-
tions with Acting Chairman Gruenberg or the Internal
Ombudsman. Miller further alleged that the FDIC retali-
ated by denying his request for a desk audit, withholding
a promotion, and denying his request to publish two
papers. OSC informed Miller on May 15, 2012, that it
had made a preliminary determination not to take action
on the complaint because it could not conclude that the
FDIC violated 5 U.S.C. § 2302(b)(8). OSC closed its file on
his complaint on May 31, 2012, after Miller did not re-
spond to the preliminary determination.
                            C
    Miller appealed OSC’s decision to the Board on June
26, 2012, asserting an IRA based on allegations made to
OSC. In light of Congress enacting the WPEA to amend
portions of the Whistleblower Protection Act of 1989
(“WPA”), Pub. L. No. 101–12, 103 Stat. 16, the Adminis-
trative Judge (“AJ”) dismissed Miller’s appeal without
prejudice pending the Board’s resolution of Hooker v.
Department of Veterans Affairs, 2014 M.S.P.B. 15 (2014).
Miller v. Fed. Deposit Ins. Co., No. SF-1221-13-0574-W-1,
2013 MSPB LEXIS 4543 (M.S.P.B. Aug. 27, 2013). The
AJ stated that Miller’s appeal would be refiled sua sponte.
Id. at *2.
    The Board issued its decision in Hooker on March 11,
2014, holding that WPEA § 101(b)(1)(A), which expanded
the Board’s jurisdiction over IRA appeals to include
allegations made under 5 U.S.C. § 2302(b)(9)(B), did not
apply retroactively. Hooker, 2014 M.S.P.B. 15, at ¶¶ 11–
15. The Board subsequently refiled Miller’s appeal on
March 12, 2014, and issued an order to show cause why
6                                           MILLER   v. MSPB



the Board had jurisdiction over his appeal. Miller re-
sponded on April 14, 2014, explaining that he made
disclosures protected under § 2302(b)(8) during the course
of the grievance hearings and in his communications with
the Internal Ombudsman and Acting Chairman Gruen-
berg. Miller also asserted that he made nonfrivolous
allegations of retaliation due to the FDIC’s failure to
perform the desk audit or promote him, and the FDIC’s
decision to issue a below-average performance review.
    The AJ issued an Initial Decision on June 6, 2014,
dismissing Miller’s appeal for lack of jurisdiction. Miller
v. Fed. Deposit Ins. Co., No. SF-1221-13-0574-W-2, 2014
MSPB Lexis 3565 (M.S.P.B. June 6, 2014). The AJ first
addressed the disclosures to the Internal Ombudsman
and Acting Chairman Gruenberg. Id. at *7–8. The AJ
found that Miller did not identify these disclosures in his
OSC complaint and did not establish that he raised these
disclosures with OSC at any time during their review. Id.
at *7. The AJ thus concluded that Miller failed to exhaust
his remedies with the OSC regarding these disclosures.
Id. at *8.
    As for the disclosures made during the grievance
process, the AJ first concluded that the alleged reprisal
for Miller’s allegations made during the grievance process
are prohibited under § 2302(b)(9), not § 2302(b)(8). Id. at
*8–9. The AJ also found that the Board lacked jurisdic-
tion because the FDIC is a government corporation ex-
cluded from coverage under § 2302, except for disclosures
made under § 2302(b)(8). Id. at *9. The AJ then analyzed
the effect of the WPEA on the Board’s jurisdiction over
Miller’s claims. Id. at *10–13. The AJ explained that
retaliation for disclosures made under § 2302(b)(9)(A), as
amended by the WPEA, would justify the Board’s jurisdic-
tion. Id. at *10–12. But, the AJ also found that the
Board’s retroactivity analysis in Hooker should apply
equally to § 2302(b)(9)(A)(i), such that the WPEA is not
retroactive, and pre-WPEA § 2302(b)(9)(A)(i) did not
MILLER   v. MSPB                                          7



justify the Board’s jurisdiction. Id. at *10–12. Because
his disclosures occurred before the effective date of the
WPEA, the AJ concluded that the amended WPA did not
apply to Miller’s disclosures. Id. at *12–13. And finally,
the AJ found that, even if post-WPEA § 2302(b)(9)(A)(i)
applied, the Board would not have jurisdiction because
Miller’s disclosures did not concern “remedying an alleged
violation of subparagraph (b)(8),” as required in
§ 2302(b)(9)(A)(i). Id. at *14.
    Miller filed a petition for review of the AJ’s decision,
but the Board denied the petition in a November 6, 2014,
decision. Board Decision, at ¶¶ 13, 15. First, the Board
declined to address the AJ’s analysis regarding exclusion
of the FDIC from the purview of § 2302. Id. at ¶ 4 n.2.
The Board also did not address the AJ’s conclusion that, if
the WPEA applied to Miller’s disclosures, they would still
not justify jurisdiction. Id. at ¶ 15 n.6. The Board, how-
ever, affirmed the AJ’s conclusion that Miller failed to
exhaust his remedies with OSC regarding the disclosures
to the Internal Ombudsman and Acting Chairman
Gruenberg. Id. at ¶¶ 6–10. The Board found that, even
though Miller addressed these disclosures in his response
to the AJ’s show cause order, he presented no evidence
that he informed OSC of these communications. Id. at
¶¶ 7–8. Miller claimed that he made reasonable attempts
to inform OSC, but OSC had already decided to terminate
the investigation regardless of any other disclosures. The
Board concluded, however, that Miller’s new allegations of
protected activity must be presented to OSC before the
disclosures could justify the Board’s jurisdiction. Id. at
¶¶ 9–10.
    The Board then decided that Miller’s disclosures made
during the grievance process should be treated as allega-
tions of prohibited personnel practices under § 2302(b)(9),
not § 2302(b)(8), because, according to our decision in
Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569 (Fed. Cir.
1996), disclosures made in the context of a grievance
8                                            MILLER   v. MSPB



proceeding are treated as disclosures under § 2302(b)(9).
Board Decision, at ¶¶ 11–12. Further, the Board conclud-
ed that, in light of Hooker, the WPEA-enabled broadening
of the Board’s jurisdiction to include IRA’s predicated on
disclosures protected by § 2302(b)(9) did not apply retro-
actively. Id. at ¶ 15. The Board thus affirmed the AJ’s
dismissal of Miller’s appeal because his allegations,
protected only under § 2302(b)(9), did not justify Board
jurisdiction under the pre-WPEA statute. Id. at ¶ 13.
    Miller filed a timely Notice of Appeal on January 5,
2015, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                             II
     The scope of our review of a Board decision is limited.
We can set aside a Board decision only if it was: (1) “arbi-
trary, 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.” 5 U.S.C.
§ 7703(c). The Board’s jurisdiction is not plenary, but is
limited by statute. 5 U.S.C. § 7701(a)(1). The petitioner
has the burden of establishing the Board’s jurisdiction by
a preponderance of the evidence. Serrao, 95 F.3d at 1573
(citing 5 C.F.R. § 1201.56(a)(2)). The Board’s jurisdiction
is a question of law that we review de novo. Serrao, 95
F.3d at 1573.
                             A
    An aggrieved employee can invoke the Board’s juris-
diction through filing an IRA under 5 U.S.C. § 1214.
Under the pre-WPEA § 1214, “[a]n employee . . . may seek
corrective action from the Board under section 1221, if
such employee . . . seeks corrective action for a prohibited
personnel practice described in section 2302(b)(8) from the
Special Counsel” and meets certain procedural require-
ments. Id. § 1214(a)(3) (2012) amended by Whistleblower
MILLER   v. MSPB                                           9



Protection Enhancement Act of 2012, Pub. L. No. 112–
199, 126 Stat. 1465. Section 1214 thus requires an em-
ployee to first seek review from OSC before filing an IRA
with the Board, unless the employee has “the right to
appeal directly to the Merit Systems Protection Board.”
Id. Pre-WPEA § 1221 similarly states that an employee
may seek corrective action from the Board for “any per-
sonnel action taken . . . as a result of a prohibited person-
nel practice described in section 2302(b)(8).” Id. § 1221(a).
Thus, prior to amendment of the WPA by the WPEA,
Board jurisdiction over an IRA appeal required that the
personnel practice at issue be barred by 5 U.S.C.
§ 2302(b)(8). That subsection provides:
    (b) Any employee who has authority to take, direct
    others to take, recommend, or approve any per-
    sonnel action, shall not, with respect to such au-
    thority—
         (8) take or fail to take, or threaten to take
         or fail to take, a personnel action with re-
         spect to any employee or applicant for em-
         ployment because of—
             (A) any disclosure of information
             by an employee or applicant which
             the employee or applicant reason-
             ably believes evidences—
                   (i) a violation of any law,
                   rule, or regulation, or
                   (ii) gross mismanagement, a
                   gross waste of funds, an
                   abuse of authority, or a sub-
                   stantial and specific danger
                   to public health or safety . .
                   . ; or
             (B) any disclosure to the Special
             Counsel, or to the Inspector Gen-
10                                            MILLER    v. MSPB



            eral of an agency or another em-
            ployee designated by the head of
            the agency to receive such disclo-
            sures, of information which the
            employee or applicant reasonably
            believes evidences—
                (i) a violation of any law,
                rule, or regulation, or
                (ii) gross mismanagement,
                a gross waste of funds, an
                abuse of authority, or a
                substantial and specific
                danger to public health or
                safety
Id. § 2302. Importantly, pre-WPEA, a disclosure under
§ 2302(b)(9)(A)(i) could not provide the basis for Board
jurisdiction over an IRA:
     (b) Any employee who has authority to take, direct
     others to take, recommend, or approve any per-
     sonnel action, shall not, with respect to such au-
     thority—
        (9) take or fail to take, or threaten to take
        or fail to take, any personnel action
        against any employee or applicant for em-
        ployment because of—
            (A) the exercise of any appeal,
            complaint, or grievance right
            granted by any law, rule, or regu-
            lation—
                (i) with regard to remedy-
                ing a violation of para-
                graph (8);
MILLER   v. MSPB                                        11



Id. Personnel practices taken against an employee be-
cause of their exercise of grievance rights thus did not
give rise to any IRA rights. 2
    The WPEA amended Title 5 with regards to the
Board’s jurisdiction and IRA appeals. Section 1214(a)(3)
now expands the Board’s jurisdiction to include “if such
employee . . . seeks corrective action for a prohibited
personnel practice described in section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D) from the Special
Counsel . . .” 5 U.S.C. § 1214(a)(3) (emphasis added).
Section 1221(a) has also been expanded to include “pro-
hibited personnel practice[s] described in . . . section
2302(b)(9)(A)(i), (B), (C), or (D).” The WPEA did not,
however, amend § 2302(b)(8) or § 2302(b)(9)(A)(i) as
relevant to Miller’s appeal. Under the WPEA, in contrast
to the WPA, an employee may file an IRA, and the Board
will have jurisdiction over the appeal, if the prohibited
personnel action is due to a disclosure covered by either
§ 2302(b)(8)—i.e. retaliation for whistleblowing—or
§ 2302(b)(9)(A)(i)—i.e. retaliation for exercising a griev-
ance right related to whistleblowing.
    The Board found that § 101(b)(1)(A) of the WPEA,
which amended 5 U.S.C. §§ 1214(a), 1221(a)(3), did not
apply retroactively in light of its analysis in Hooker.
Board Decision, at ¶ 15. Importantly, Miller does not
challenge the Board’s retroactivity analysis. He instead
argues that the statements he made during the grievance
process are disclosures protected under § 2302(b)(8), not
§ 2302(b)(9)(A)(i), under the pre-WPEA statute. Because


   2    Under Pre-WPEA § 1221(e)(1), the Board “shall
order such corrective action as the Board considers appro-
priate” if the employee demonstrates that “a disclosure
described under section 2302(b)(8) was a contributing
factor in the personnel action which was taken or is to be
taken against such employee.” Id. § 1221(e)(1).
12                                         MILLER   v. MSPB



Miller does not challenge the Board’s retroactivity analy-
sis, and because neither party briefed the issue, we as-
sume for the purposes of our analysis that WPEA
§ 101(b)(1)(A) is not retroactive, and do not comment on
the Board’s analysis below or in Hooker. 3
                            B
     After Miller received the Letter of Warning, he made
two sets of disclosures: (1) the statements made to the
Internal Ombudsman and to Acting Chairman Gruenberg
by email outside of the grievance process; and (2) the
statements made in his Step 1–3 complaints to FDIC
officials, and in his OSC complaint. We analyze these
disclosures in seriatim.
                            1
    In a series of emails in 2011 and 2012, Miller ex-
pressed his concerns with the FDIC’s harassment policies
to the Internal Ombudsman and Acting Chairman
Gruenberg. Miller contended that the FDIC’s policies and
training for harassment complaints were inadequate, and
that certain members of FDIC management lied during
his investigation. As the Board recognized, Miller did not
mention these conversations in any of his Step 1–3 griev-
ance filings or hearings, and did not discuss the disclo-
sures in his OSC complaint. Board Decision ¶¶ 8–9. On
appeal, Miller does not claim that he informed OSC of
these disclosures, but instead argues that he would have
told OSC of these disclosures had OSC reasonably ex-
plained the exhaustion requirement. Miller also argues
that OSC would have closed his file even if he had includ-


     3 We also do not comment on the Board’s analysis
in Colbert v. Department of Veterans Affairs, 2014
M.S.P.B. 80, ¶ 7 (2015) (finding that the WPEA did not
apply     retroactively    to     § 2302(b)(9)(A)(i) or
§ 2302(b)(9)(C)).
MILLER   v. MSPB                                         13



ed a discussion of the disclosures to the Internal Om-
budsman and Acting Chairman Gruenberg, because the
OSC appeared uninterested in his complaint. The gov-
ernment responds that exhaustion is mandated by stat-
ute, and his status as a pro se filer does not excuse his
failure to meet statutory requirements. The government
also argues that OSC met its obligation to “investigate the
allegation to the extent necessary” by reviewing Miller’s
filings, even if it did not interview Miller. 5 U.S.C.
§ 1214(a)(1)(A). We agree with the government’s argu-
ments.
    Section 1214(a)(3) requires that an employee first
seek corrective action from OSC before filing an IRA
appeal with the Board. In determining if the employee
sufficiently exhausted his remedies, we look to “the com-
plaint to OSC requesting corrective action under 5 U.S.C.
§ 1214(a)(3), not the employee’s subsequent characteriza-
tion of that statement in his appeal to the Board.” Serrao,
95 F.3d at 1577 (citing Ward v. Merit Sys. Prot. Bd., 981
F.2d 521, 526 (Fed. Cir. 1992)). We require that the
employee “articulate with reasonable clarity and precision
[before OSC] the basis for his request for corrective action
under the WPA” to allow OSC to effectively pursue an
investigation. Id. (quoting Ellison v. Merit Sys. Prot. Bd.,
7 F.3d 1031, 1037 (Fed. Cir. 1993)); see also Knollenberg v.
Merit Sys. Prot. Bd., 953 F.2d 623, 626 (Fed. Cir. 1992)
(requiring the petitioner to provide OSC with, at least, a
“sufficient basis to pursue an investigation which might
have led to corrective action”). An employee may include
further detail regarding his allegations before the Board,
but a reasonably clear claim must first be made to OSC.
Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373,
1378 (Fed. Cir. 2001). The Board’s jurisdiction over an
IRA appeal, assuming the employee does not have an
independent right to appeal directly to the Board, is thus
limited to those issues that have been previously raised
with OSC. Ellison, 7 F.3d at 1036–37. Miller “bears the
14                                           MILLER   v. MSPB



burden of showing that [he] sought corrective action from
the OSC and that [he] exhausted [his] remedies there.”
Briley, 236 F.3d at 1377.
     Miller did not raise his communication with the In-
ternal Ombudsman or Acting Chairman Gruenberg in his
complaint to OSC. The statute does not require that OSC
affirmatively inform Miller that he must include any
disclosures made, even those made outside the grievance
process, in his OSC complaint in order to exhaust reme-
dies. Cf. Willis v. Dep’t of Agric., 141 F.3d 1139, 1143
(Fed. Cir. 1998) (explaining that OSC is merely required
to ‘investigate the allegation to the extent necessary to
determine whether there are reasonable grounds to
believe that a prohibited personnel practice has occurred,
exists, or is to be taken’” (citing 5 U.S.C. § 1214(a)(3)).
Our precedent makes clear that § 1214(a)(3) requires, at a
minimum, that the complaint before the OSC include
some claim, “articulate[d] with reasonable clarity and
precision,” that identifies the basis for the employee’s
whistleblowing allegations. Ellison, 7 F.3d at 1037.
Miller failed to raise these two disclosures before OSC in
any capacity, and it is mere speculation for Miller to claim
that raising the disclosures would have been irrelevant to
OSC’s decision to close his file. We therefore affirm the
Board’s conclusion that Miller failed to exhaust his reme-
dies before OSC for his disclosures to the Internal Om-
budsman and Acting Chairman Gruenberg.
                             2
    Miller’s other disclosures occurred during the griev-
ance process established under the FDIC/NTEU Term
Collective Bargaining Agreement. Similar to the disclo-
sures made to the Internal Ombudsman and Acting
Chairman Gruenberg, Miller claimed that the FDIC’s
harassment policies were inadequate, and that the FDIC
did not provide appropriate training. Miller also argued
that these inadequate policies and trainings were a rea-
MILLER   v. MSPB                                           15



son why he received the Letter of Warning, which led to
multiple adverse employment actions. The Board con-
cluded that Miller’s disclosures made during the griev-
ance process were disclosures under § 2302(b)(9), not
§ 2302(b)(8), and thus did not support the Board’s juris-
diction under the pre-WPEA statute.
    Miller argues on appeal that he made two types of
disclosures during the grievance process: (1) those disclo-
sures for which he sought personal relief, such as a pro-
motion; and (2) those disclosures for which he sought
correction of agency policy and procedure. Miller claims
that, although the first set of disclosures do not justify the
Board’s jurisdiction and are covered by § 2302(b)(9), the
second set of disclosures can give rise to an IRA through
§ 2302(b)(8). Miller further alleges that the content of
these disclosures—informing FDIC officials of inadequa-
cies in their training and guidance documents that Miller
believes could leave the FDIC open to liability—qualifies
as evidence of either “a violation of any law, rule, or
regulation”, “gross mismanagement”, or an “abuse of
authority” under § 2302(b)(8). According to Miller, be-
cause his disclosure is the type of disclosure that Con-
gress intended § 2302(b)(8) to remedy, the Board should
have jurisdiction. The government responds that there is
a clear dividing line between the sorts of disclosures
discussed under § 2302(b)(8) and § 2302(b)(9). The gov-
ernment argues that, even if a disclosure made during a
grievance is the type of disclosure typically covered by
§ 2302(b)(8), it still must be considered a § 2302(b)(9)
disclosure when it is made during a grievance proceeding.
    Under the applicable pre-WPEA § 1214(a)(3) and
§ 1221(a), the Board could potentially have jurisdiction
over Miller’s disclosures if they fall within § 2302(b)(8),
but not § 2302(b)(9). We have drawn a strict line between
disclosures under these two provisions. We recognized
that Congress “differentiate[d] between reprisal based on
disclosure of information and reprisal based upon exercis-
16                                           MILLER   v. MSPB



ing a right to complain.” Spruill v. Merit Sys. Prot. Bd.,
978 F.2d 679, 690 (Fed. Cir. 1992); see also Ellison, 7 F.3d
at 1035 (identifying the “deliberate and substantive
distinction established by Congress between reprisals
based on ‘whistleblowing’ disclosures of government
illegality, waste, and corruption . . . and reprisals based
on exercising one’s right to complain . . .”). Reading the
disclosures covered by § 2302(b)(8) too broadly to include
activities under § 2302(b)(9) “would have the effect of
reversing this carefully considered Congressional decision
. . . render[ing] § 2302(b)(9)(A) largely irrelevant, if not
completely superfluous.” Spruill, 978 F.2d at 691. In
Ellison, we explained that an employee can make sepa-
rate disclosures based on the “same operative facts,” with
some made under § 2302(b)(8), and others under
§ 2302(b)(9)(A), such that filing a grievance itself does not
disqualify an employee from pursuing corrective action
through an IRA. 7 F.3d at 1035.
    We explained this statutory distinction in detail in
Serrao. In Serrao, the employee claimed that “even
assuming his OSC complaint was based upon alleged
section 2302(b)(9)(A) reprisal, he nevertheless presented
section 2302(b)(8) reprisal claims.” 95 F.3d at 1575. We
clarified that the issue before the court was “whether the
Board has jurisdiction . . . when disclosures allegedly
protected under 5 U.S.C. § 2302(b)(8) are made solely in
the course of exercising agency grievance rights and are
never presented outside that context.” Id. at 1576. We
agreed with the Board’s conclusion that “only disclosures
made outside grievance procedures or discrimination
complaint procedures could serve as the basis for Board
jurisdiction over an IRA appeal.” Id.; see also Smart v.
Merit Sys. Prot. Bd., 211 F. App’x 969, 971 (Fed. Cir.
2007) (“Our cases have squarely held that disclosures
made solely during grievance proceedings, and not sepa-
rately disclosed to the agency, cannot form the basis for a
whistleblowing claim.”). We concluded that allowing an
MILLER   v. MSPB                                         17



employee to meet the jurisdictional requirements for an
IRA by placing § 2302(b)(8) allegations into a grievance
proceeding would “undercut Spruill” and “blur” the dis-
tinction made by Congress between the types of disclo-
sures covered in these subsections of § 2302. Serrao, 95
F.3d at 1576.
    Miller presents the same question as in Serrao: does
the Board have jurisdiction over disclosures allegedly
protected under § 2302(b)(8) when those disclosures are
made solely during a grievance proceeding? In light of
Serrao, we conclude that the disclosures Miller made
during his grievance proceeding are protected under
§ 2302(b)(9)(A)(i), not § 2302(b)(8). Miller admits that he
made the allegations about inadequate FDIC policies and
proceedings as part of his grievance process. Even though
he initiated the grievance proceedings because of the
Letter of Warning, Miller alleges that some of the person-
nel actions taken against him were because of his contin-
ued desire to seek relief through the grievance process,
including, presumably, his disclosures about FDIC poli-
cies and practices. The Board therefore properly conclud-
ed that Miller’s disclosures were protected under
§ 2302(b)(9)(A)(i), and applying the pre-WPEA statute,
did not err in dismissing Miller’s appeal for lack of juris-
diction.
    Because the Board did not err in dismissing Miller’s
appeal for lack of jurisdiction, we affirm the Board’s
decision.
                       AFFIRMED
