                  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

                                         05-3157


                                 GLORIA M. ALMARAZ,

                                                        Petitioner,


                                             v.


                               DEPARTMENT OF LABOR,

                                                        Respondent.


                            _______________________

                            DECIDED: October 7, 2005
                            _______________________



Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.

PER CURIAM.

                                        DECISION

       Gloria M. Almaraz petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that dismissed, for lack of jurisdiction, her individual right of

action (“IRA”) appeal under the Whistleblower Protection Act of 1989 (“WPA”), Pub. L.

No. 101-12, 103 Stat 16 (1989) (codified at 5. U.S.C. § 2302(b)(8)). Almaraz v. Dep’t of
Labor, No. DA-1221-04-0344-W-1 (Mar. 14, 2005) (“Final Decision”). We affirm the

dismissal of Ms. Almaraz’s appeal.

                                     DISCUSSION

                                          I.

      During the period of time relevant to this appeal, the Department of Labor

(“Labor”) employed Ms. Almaraz as a compliance officer in its Office of Federal Contract

Compliance in San Antonio, Texas. On May 10, 2002, Ms. Almaraz wrote to Assistant

District Director Kay Rivera requesting an eight-week leave of absence. Ms. Rivera

forwarded the request via e-mail to Larry Garza, District Director. Mr. Garza, in turn,

sought advice from Fred Azua, Jr., Labor’s Regional Director, concerning the process

for considering the request. On June 18, 2002, Mr. Garza informed Ms. Almaraz that he

had granted her request for four weeks of leave, but that he could not approve her

request for eight weeks of leave.

      On June 26, 2002, Ms. Almaraz wrote to Mr. Azua protesting Mr. Garza’s

decision not to grant her the full eight weeks of leave that she had requested. In her

letter, Ms. Almaraz complained that there was a double standard because Mr. Garza

previously “approved a six month leave of absence [for another employee]; and the

leave was approved at the time it was requested.” Mr. Azua rejected Ms. Almaraz’s

protest. On August 8, 2002, Ms. Almaraz contacted Labor’s Equal Employment Office

(“EEO”), claiming that, in denying her leave request, the agency had discriminated

against her based upon gender.

      On October 24, 2003, Ms. Almaraz filed a “complaint of prohibited activity” with

the Board’s Office of Special Counsel (“OSC”). In her complaint, Ms. Almaraz alleged




05-3157                                    2
that Mr. Garza and other Labor officials had violated agency leave policy and had

violated merit systems performance rating principles. She also alleged that Labor had

released confidential information without notifying her and had taken reprisals against

her for reporting violations of law. Ms. Almaraz sought corrective action from OSC.

      After exhausting her remedies before OSC, Ms. Almaraz filed an IRA appeal with

the Board. In an initial decision dated June 25, 2004, the administrative judge (“AJ”) to

whom the appeal was assigned dismissed Ms. Almaraz’s appeal on the ground that Ms.

Almaraz had failed to establish that the Board had jurisdiction. Almaraz v. Dep’t of

Labor, No. DA-1221-04-0344-W-1 (Jun. 25, 2004) (“Initial Decsion”). The AJ ruled that

Ms. Almaraz had failed to demonstrate that he she had made a non-frivolous allegation

of a protected disclosure, as required by 5 U.S.C. § 2302(b)(8).

      The Initial Decision became the final decision of the Board after the Board denied

Ms. Almaraz’s petition for review for failure to meet the criteria for review set forth at

5 C.F.R. § 1201.115(d).     This appeal followed.     We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9).

                                           II.

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

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). We review decisions of the

Board regarding its own jurisdiction without deference. McCormick v. Dep’t of the Air




05-3157                                     3
Force, 307 F.3d 1339, 1340 (Fed. Cir. 2002) (citing King v. Briggs, 83 F.3d 1384, 1387

(Fed. Cir. 1996)). Before the Board, an appellant bears the burden of establishing

Board jurisdiction. Id. (citing 5 C.F.R. § 1201.56(a)(2)(i); Clark v. United States Postal

Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993)). We see no error in the Board’s dismissal

of Ms. Almaraz’s appeal.

      The Board has jurisdiction over an IRA appeal if the appellant has exhausted his

or her administrative remedies before OSC and alleges (1) that he or she engaged in

whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8),

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

fail to take, a personnel action. The Board ruled that Ms. Almaraz had exhausted her

remedies before OSC, but had failed to demonstrate that she had engaged in

whistleblowing activity by making a protected disclosure. A protected disclosure is a

disclosure in which the person making it reasonably believes evidences a violation of a

law, rule, or a regulation, gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health or safety. See 5 U.S.C.

§ 2302(b)(8); Meuwissen v. Dep’t of the Interior, 234 F.3d 9, 12 (Fed. Cir. 2000);

Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).

      As she did before the Board, Ms. Almaraz argues that her June 26, 2002 letter to

Mr. Azua constituted a protected disclosure. In addition to relying on her June 26th

letter, Ms. Almaraz submitted to the Board copies of e-mails reflecting that Mr. Garza

had sought advice from Mr. Azua on how to handle Ms. Almaraz’s leave request. Ms.

Almaraz also furnished the Board with a copy of a November 27, 2002 affidavit by Mr.

Garza relating to Ms. Almaraz’s leave request.       We think that the Board properly




05-3157                                     4
rejected Ms. Almaraz’s arguments based upon the June 26th letter and her related

submissions.   As the AJ noted, the matters discussed in the June 26th letter were

already known to Mr. Azua. Under these circumstances, it could not be said that Ms.

Almaraz disclosed information of wrongdoing that was concealed or not publicly known.

See Meuwissen, 234 F.3d at 13.

      For the foregoing reasons, the decision of the Board dismissing Ms. Almaraz’s

IRA appeal is affirmed.

      Each party shall bear its own costs.




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