             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
             is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit

                                    05-3348

                          ANASTASIA M. KAVANAGH,

                                               Petitioner,

                                        v.

                   MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.

                            ____________________

                           DECIDED: April 10, 2006
                           ____________________

Before LOURIE, CLEVENGER, and BRYSON, Circuit Judges.

PER CURIAM.

      Anastasia M. Kavanagh appeals from the final decision of the Merit

Systems Protection Board (“Board”) dismissing her appeal for lack of jurisdiction.

Kavanagh v. Department of Defense, No. DC-1221-04-W-1 (M.S.P.B. July 15,

2005). Because the Board correctly determined that it lacked jurisdiction over

her appeal, we affirm.

                                BACKGROUND

      Kavanagh was employed as an Accounting Technician and Operating

Accountant in the Washington Headquarters Services division of the Department

of Defense (the “Agency”). In 1985, she sought a different position that required

Top Secret clearance but she was not granted that clearance. She eventually
resigned from her position in 1990.      On January 4, 2004, Kavanagh filed a

complaint at the Office of Special Counsel (“OSC”), alleging that the Agency

retaliated against her for engaging in whistleblowing activity. Between 1982 and

1983, Kavanagh wrote numerous memoranda to management consisting of

suggestions to improve management procedures. She claims that in retaliation

for disclosing the memoranda, the Agency placed her into the “International

Security Net,” which she alleges resulted in her safety being endangered. On

July 28, 2004, the OSC informed Kavanagh that it had terminated its inquiry into

her whistleblowing complaint.

        On August 31, 2004, Kavanagh filed an individual right of action (“IRA”)

appeal to the Board, alleging that she was “thrown into the International Security

Net” in retaliation for her whistleblowing activity. On September 21, 2004, the

administrative judge (“AJ”) notified Kavanagh that, to establish jurisdiction over

her IRA appeal, she would have to show that she had exhausted her

administrative remedies before the OSC and that she had made nonfrivolous

allegations of engaging in whistleblowing activity. Kavanagh responded with a

letter stating again that following the request for Top Security clearance, she was

thrown into the International Security Net in retaliation for her whistleblowing

activity.

        On October 21, 2004, the AJ dismissed Kavanagh’s appeal for lack of

jurisdiction.   Although the AJ determined that Kavanagh had exhausted her

administrative remedies before the OSC, the AJ found that she had not shown

that she made a nonfrivolous allegation of a protected disclosure. The AJ noted




05-3348                                 2
that a “protected disclosure” is a disclosure of a “violation of law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or substantial and specific danger to public health or safety.” The AJ determined

that Kavanagh’s alleged protected disclosures, which consisted of suggestions to

improve management procedures, were debatable management decisions that

did not rise to the level of “gross mismanagement or abuse of authority.” The AJ

thus concluded that because she had not made a nonfrivolous allegation of a

protected disclosure evidencing gross mismanagement or abuse of authority, the

Board lacked jurisdiction to hear her appeal.

       The AJ then determined that even if Kavanagh’s suggestions could be

considered “protected disclosures,” the Board would still lack jurisdiction over the

appeal because the Agency’s alleged acts of reprimand predated the effective

date of the Whistleblower Protection Act (“WPA”). The AJ noted that once an

appellant establishes that she made a protected disclosure, the inquiry shifts to

whether the disclosure was a contributing factor in the Agency’s decision to take

or fail to take a personnel action. The AJ observed that the date of the Agency’s

notice of proposed reprimand was November 14, 1985, which predated the July

9, 1989 effective date of the WPA. Therefore, the AJ concluded that it further

lacked jurisdiction over the appeal because the Agency’s alleged actions were

taken before the effective date of the WPA.

       Kavanagh appealed the AJ’s decision to the full Board, which denied her

petition for review, thereby rendering the AJ’s decision final.      See 5 C.F.R.

§ 1201.113(b) (2004).




05-3348                                  3
       Kavanagh timely appealed to this court, and we have jurisdiction pursuant

to 28 U.S.C. § 1295(a)(9) (2000).

                                    DISCUSSION

       Whether the Board has jurisdiction to adjudicate a particular appeal is a

question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 326

F.3d 1210, 1213 (Fed. Cir. 2003). Kavanagh, as the petitioner, has the burden of

establishing the Board’s jurisdiction by a preponderance of the evidence. See id.

at 1213-14.

       Kavanagh argues that she made a nonfrivolous allegation of a protected

disclosure.    According to Kavanagh, she disclosed to her supervisors

memoranda that revealed significant problems in the Agency’s accounting

system. She further contends that in retaliation for disclosing those memoranda

to her supervisors, the Agency placed her name in its “Security Service files,”

resulting in alleged harassment by various members of the public and a feeling of

isolation from society and her family.

       The government responds that the AJ correctly determined that Kavanagh

failed to make a nonfrivolous allegation that her disclosures were protected under

the WPA.      The government argues that Kavanagh’s alleged disclosures

consisted of employee suggestion forms that criticized agency policies and her

working conditions and that contained ideas for changes in internal agency

procedures. According to the government, those disclosures represented mere

differences of opinion between her and her supervisors and did not amount to a

nonfrivolous allegation of an abuse of authority or gross mismanagement. In




05-3348                                  4
addition, even if the disclosures were protected under the WPA, the government

contends that the Board would still have lacked jurisdiction over her appeal

because the Agency’s alleged acts of reprisals occurred before the effective date

of the WPA.

       We agree with the government and conclude that the Board correctly

decided that it did not have jurisdiction over Kavanagh’s appeal on the grounds

that she did not make a “protected disclosure” and that the alleged Agency action

occurred before the effective date of the WPA. In order for the Board to have

jurisdiction over an IRA appeal, an employee must first exhaust her

administrative remedies before the OSC and make nonfrivolous allegations that

(1) she engaged in whistleblowing activity by making a protected disclosure, and

(2) the disclosure was a contributing factor in the agency’s decision to take or fail

to take a personnel action after July 9, 1989, the effective date of the WPA. See

Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

       A protected disclosure is one that the appellant reasonably believes

evidences a violation of law, rule or regulation, gross mismanagement, a gross

waste of funds, abuse of authority, or a substantial and specific danger to public

health or safety. 5 U.S.C. § 2302(b)(8). “Gross mismanagement” has been

defined as a management action or inaction which creates a substantial risk of

significant adverse impact upon the agency’s ability to accomplish its mission.

White v. Dep’t of the Air Force, 63 M.S.P.R. 90, 95 (1994).             Kavanagh’s

disclosures consisted of memoranda with various “suggestions” and “suggested

procedures” for improving internal agency procedures. The Board correctly




05-3348                                  5
concluded that those suggestions were not “protected disclosures” because they

did not demonstrate a violation of a rule or regulation, gross mismanagement, or

an abuse of authority. The suggestions for improving internal protocol were not

directed towards management action that created a substantial risk of significant

adverse impact upon the agency’s ability to accomplish its mission.

        Even assuming that Kavanagh’s disclosures were “protected disclosures,”

the Board still would not have had jurisdiction over her appeal because the

alleged acts of reprisal occurred before July 9, 1989, the effective date of the

WPA. The Top Secret clearance request for Kavanagh was issued and denied in

1985.    After being denied the clearance, she was allegedly placed into the

“International Security Net.” The Agency’s denial of the Top Secret clearance,

which constituted the alleged act of reprisal, occurred in 1985, well before the

effective date of the WPA. Because the date of the alleged Agency reprisal

predated the effective date of the WPA, the Board did not have jurisdiction over

the appeal.

        Kavanagh also argues that the AJ failed to take into account the fact that

others recognized her entitlement to assistance under the WPA. She contends

that that fact was evidenced by the numerous telephone numbers and the names

of lawyers given to her throughout the grievance process. That fact, however,

merely demonstrates that the Agency provided Kavanagh with a list of people

who might assist her during the grievance procedure.            That is appropriate

protocol for the Agency and is a fact that is not relevant to the jurisdictional issue

before us.




05-3348                                   6
      Because the Board correctly determined that it lacked jurisdiction over her

appeal, we affirm.




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