                 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

                                        05-3277

                               MARIA TERESA FERDIK,

                                                            Petitioner,

                                            v.

                             DEPARTMENT OF DEFENSE,

                                                            Respondent.



                             ________________________

                            DECIDED: December 12, 2005
                             ________________________


Before MICHEL, Chief Judge, BRYSON and GAJARSA, Circuit Judges.

PER CURIAM.

                                       DECISION

       Maria Teresa Ferdik seeks review of a final decision of the Merit Systems

Protection Board (“Board”) dismissing her appeal for lack of jurisdiction. Ferdik v. Dep’t

of Def., No. DC-1221-04-0376-W-1 (M.S.P.B. May 27, 2005) (“Final Order”). We affirm.

                                            I

      Ferdik was a teacher at the Naples American High School (“NAHS”) in Naples,

Italy, which is operated by the Department of Defense (“agency”). The principal of
NAHS informed Ferdik, by notice dated May 22, 2003, of the termination of her

appointment, effective June 13, 2003.1

      Ferdik appealed the termination action to the Board and requested a stay of the

action. The Board dismissed her appeal because an excepted service employee with

less than two years of Federal service does not have a right to appeal to the Board.

See 5 C.F.R. §§ 315.801, 310.806 (2005); Ferdik v. Dep’t of Def., No. DC-0752-03-

0627-I-1 (M.S.P.B. Aug. 29, 2003) (“Initial Decision”). The request for a stay of the

termination was also subsequently dismissed. Ferdik v. Dep’t of Def., No. DC-315H-03-

0627-S-1 (M.S.P.B. July 11, 2003) (“Stay Order”).

      On July 16, 2003, Ferdik filed a complaint with the Office of Special Counsel

(“OSC”) alleging that the agency violated the Whistleblower Protection Act of 1989

(“WPA”), Pub. L. No. 101-12, 103 Stat. 16, because it terminated her in retaliation for

her alleged whistleblower disclosure. She had disclosed between March and May 2003

that a local Italian national, Roberta Pennasilico, although not a United States citizen,

was continuously employed as a teacher at the NAHS for 13 years. She allegedly had

disclosed that Pennasilico’s employment as a teacher evidenced a violation of law, rule,

or regulation, gross mismanagement, gross waste of funds, and abuse of authority. In

support of her complaint, Ferdik submitted a letter to OSC, dated January 9, 2004,

further detailing the previously disclosed employment violation. She alleged that she

had learned of Pennasilico’s improper employment from a conversation with Glenda



      1
              The reasons for termination included: (1) inappropriate remarks and
behavior made to students; (2) inconsistent grading that required recalculating and
reissuing report cards; (3) inappropriate remarks made to staff members at the NAHS;
(4) continued misbehavior after a previous letter of caution regarding the use of abusive,
demeaning and inappropriate language.


05-3277                                     2
Werner, a school counselor at the NAHS, on February 20, 2003. Ferdik’s complaint and

letter stated that she had reported the illegal employment to the principal, vice-principal,

and local union representative several times between March and May 2003.               After

receipt of her letter, OSC advised Ferdik that it was terminating the investigation and

that she could request corrective action from the Board.

       On March 30, 2004, Ferdik filed an individual right of action (“IRA”) appeal with

the Board. She repeated the allegations that she had made to OSC and requested

corrective action. She asked for reinstatement in a teaching position commensurate in

benefits and pay status with the same position that she held at the NAHS and removal

from her personnel files of any reference to the adverse action or associated

performance appraisals. The Board issued a Show Cause Order requiring Ferdik to

present evidence that the Board had jurisdiction to adjudicate her IRA appeal. She

alleged that the Board had jurisdiction because she had made protected disclosures.

The agency responded by stating that Ferdik had failed to establish Board jurisdiction.

       An administrative judge (“AJ”) dismissed Ferdik’s IRA appeal for lack of

jurisdiction premised on Ferdik’s failure to make nonfrivolous allegations that she had

engaged in whistleblowing activity. Ferdik v. Dep’t of Def., No. DC-1221-04-0376-W-1

(M.S.P.B. May 26, 2004) (“Initial Decision”). The Board, on May 27, 2005, issued a final

order denying Ferdik’s petition for review.

       Ferdik timely appealed to this court.         We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9) (2000).




05-3277                                       3
                                            II

      This court must affirm the decision of the Board unless the decision was:

“(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.” 5 U.S.C. § 7703(c) (2000); see

Francisco v. Office of Pers. Mgmt., 295 F.3d 1310, 1313 (Fed. Cir. 2002). The issue of

whether the Board has jurisdiction over an appeal is a question of law which this court

reviews de novo. See Francisco, 295 F.3d at 1313.

                                            III

      Ferdik argues that the Board erred in dismissing her IRA appeal for lack of

jurisdiction. The Board has jurisdiction over an IRA appeal if Ferdik shows that the

administrative remedies before the OSC have been exhausted and that she made

nonfrivolous allegations that “(1) [s]he engaged in whistleblowing activity by making a

protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a

contributing factor in the agency’s decision to take or fail to take a personnel action as

defined by 5 U.S.C. § 2302(a).” Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367,

1371 (Fed. Cir. 2001).     Ferdik alleges the board erred in dismissing for lack of

jurisdiction because she exhausted her administrative remedies, made a protected

disclosure about the illegal employment of a non-U.S. citizen as a teacher and the

agency terminated her appointment as a teacher, as a result of the disclosure.

      The sole disclosure at issue in Ferdik’s IRA appeal pertains to relaying

information that Pennasilico’s employment as a teacher at the NAHS was a violation of

law. Ferdik has not shown or raised any other disclosures as a basis for her IRA




05-3277                                     4
appeal.    The Board determined, and we agree, that Ferdik has exhausted all her

administrative remedies before OSC as to this disclosure.

       Ferdik alleges that the disclosure was made to the principal, vice-principal, and

local union representative before her termination.               The disclosure involved the

revelation that Pennasilico, although not a United States citizen, had been employed as

a teacher at the NAHS for 13 years. According to 20 U.S.C. § 901(2) (2000), a teacher

at an overseas school operated by the agency must be a “citizen of the United States.”

In her letter to OSC, Ferdik stated that Werner told her that Pennasilico’s employment

was improper. The letter also indicated that “almost the whole school knows full well . .

. that the practice is a violation . . . [of] policy and directives.”

       Reporting information that is already publicly known is not a protected disclosure

pursuant to 5 U.S.C. § 2302(b)(8). Francisco, 295 F.3d at 1314 (citing Huffman v.

Office of Pers. Mgmt., 263 F.3d 1341, 1349-50 (Fed. Cir. 2001) (construing “disclosure”

to require a revelation of “something that was hidden and not known.”)).              Ferdik

contends that the Board erred in finding that the disclosure was publicly known because

Werner told her that “the illicit practice was a well kept secret among many others at the

school.” There is substantial evidence to support the finding that the information was

well known by others and is therefore public information that does not qualify as a

protected disclosure. Id. Ferdik’s response to the Board’s Show Cause Order further

reinforces the Board’s conclusion that the disclosure was publicly known because

Ferdik notes that her conversation with Werner was public and witnessed by several

people.    We agree with the Board that there was no protected disclosure because

Pennasilico had taught for 13 years at the NAHS and Ferdik admitted that almost the




05-3277                                          5
entire school knew that the employment was a statutory violation. Therefore, Ferdik

failed to establish a nonfrivolous allegation that she engaged in whistleblowing activity

by making a protected disclosure. It is apparent from her complaint and the January 9,

2004 letter that the disclosure was publicly known and not a protected disclosure.

Consequently, we need not and do not reach the issue of whether a protected

disclosure was a contributing factor in the agency’s personnel decision to terminate her

position.

         Ferdik, on appeal, raises new allegations and facts unrelated to her IRA appeal.

She appears to allege additional grounds of discrimination from wrongful termination

and “disparate treatment.” Ferdik fails to establish how these additional grounds cure

her frivolous allegation of a WPA violation by showing that her disclosure was indeed a

protected disclosure. Moreover, she also raises new facts that are not a part of the

record and were not before the Board. We cannot consider new evidence that was not

before the Board. See Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201-02 (Fed. Cir.

1996).

                                            IV

         Because Ferdik failed to establish a nonfrivolous allegation, we affirm the

decision of the Board to dismiss Ferdik’s IRA appeal for lack of jurisdiction. Each side

shall bear its own costs.




05-3277                                      6
