       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               MARCUS A. MALONE,
                   Petitioner,
                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
              __________________________

                      2012-3036
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. CH-1221-11-0078-W-1.
              ___________________________

               Decided: August 13, 2012
             ___________________________

   MARCUS A. MALONE, Akron, Ohio, pro se.

   KATHERINE M. SMITH, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.
              __________________________

Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.
MALONE   v. MSPB                                         2


PER CURIAM.
     Marcus A. Malone petitions for review of the final de-
cision of the Merit Systems Protection Board (“Board”)
affirming the Administrative Judge’s (“AJ”) decision
dismissing Mr. Malone’s individual right of action (“IRA”)
under the Whistleblower Protection Act (“WPA”) for lack
of jurisdiction. Malone v. Dep’t of Commerce, 2011 MSPB
LEXIS 5857 (Sept. 30, 2011) (“Final Order”); Malone v.
Dep’t of Commerce, 2011 MSPB LEXIS 1128 (Feb. 22,
2011) (“Initial Decision”). For the reasons explained
below, we affirm.
                      BACKGROUND
    Mr. Malone received a two-month temporary ap-
pointment, effective April 19, 2010, as an enumerator for
the Census Bureau in Akron-Summit, Ohio. On June 13,
2010, six days before the appointment expired, the agency
terminated Mr. Malone’s appointment for lack of work, as
noted on Standard Form 50.
     Mr. Malone filed a complaint with the Office of Spe-
cial Counsel (“OSC”) on May 12, 2010, using Form 11. He
filed additional entries of Form 11 on May 15, June 23,
and July 1, 2010.
    In a letter dated August 10, 2010, Angela Rush, a
Complaints Examiner at OSC, informed Mr. Malone that
OSC was “unable to infer that the decision to terminate
[him] was in violation of 5 U.S.C. § 2302(b)(8).” Ms. Rush
identified the following allegations from Mr. Malone’s
complaints: (1) that his cell phone was being tapped; (2)
that he had previously recorded and exposed “organized
crime clicks” that call themselves a Secret Society; (3)
that his crew leader, Chad Archibald, falsified informa-
tion when completing enumerator questionnaire forms; (4)
that there is a conspiracy to terminate him; and (5) that
3                                           MALONE   v. MSPB


management officials show favoritism to “mob clicks” by
dividing bonus checks at the end of the year. Ms. Rush
explained that the OSC review found that there was no
indication that Mr. Malone’s termination was due to his
report, and that he had failed to show his firing resulted
from the subject of his complaint or that there was any
connection between the termination and his disclosures.
    On August 16, 2010, Mr. Malone responded to this
preliminary determination in a letter to Ms. Rush. In this
letter, he alleged that he had been misquoted, and he
elaborated on his allegations against Mr. Archibald. Mr.
Malone also alleged that Lina Coleman, a Census super-
visor, had been involved in a conspiracy to terminate him
based on his disclosures to the Census fraud line and
OSC. In a letter dated August 25, 2010, Ms. Rush in-
formed Mr. Malone that the file on his complaint had
been closed, and that he had a right to seek corrective
action from the Board.
    On October 25, 2010, Mr. Malone filed his appeal with
the Board. On November 1, 2010, the AJ issued an ac-
knowledgement order. The AJ noted that it was unclear
whether the Board had jurisdiction and ordered Mr.
Malone to specifically identify, with detail, every alleged
disclosure made, and further ordered Mr. Malone “to file
evidence and argument to prove that this action is within
the Board’s jurisdiction.” Mr. Malone timely filed a
response on November 5, 2010, including an excerpt of his
Form 11 submission of May 15, 2010, and his correspon-
dence with OSC.
     On November 26, 2010, the Department of Commerce
filed a motion to dismiss for lack of jurisdiction under the
WPA and, in the alternative, a response. The agency
argued that Mr. Malone failed to establish jurisdiction
because Mr. Malone failed to make a non-frivolous allega-
MALONE   v. MSPB                                           4


tion of whistleblowing activity in his OSC complaint or his
Board appeal. On November 29, 2010, the AJ issued an
order directing Mr. Malone to file a copy of his OSC
complaint and any amendments to that complaint by
December 10, 2010. Mr. Malone did not respond until
February 9, 2011, well after the AJ’s close of his file. Mr.
Malone’s response, moreover, did not include his OSC
complaint. On February 14, 2011, the AJ rejected Mr.
Malone’s submission as untimely, finding that Mr.
Malone had not shown good cause for the late filing. The
AJ issued her initial decision dismissing Mr. Malone’s
claim for lack of jurisdiction on February 22, 2011, ex-
plaining that Mr. Malone had failed to establish the basis
of his whistleblower claim filed with OSC and, therefore,
he failed to make a non-frivolous allegation such that the
Board could exercise jurisdiction. Initial Decision at *2-6.
    Mr. Malone petitioned the Board for review on March
25, 2011. He submitted a DVD and DVD table of contents
that he claimed showed the alleged errors made by the
AJ. The DVD failed to play, and the Board requested that
Mr. Malone file a written summary of the DVD with any
documentary evidence that was on the DVD by June 23,
2011. Mr. Malone responded on June 27, 2011.
    On September 30, 2011, the Board issued its final or-
der denying Mr. Malone’s petition for review. Final Order
at *1. The Board first dismissed Mr. Malone’s claims of
adjudicatory error, finding no error in the AJ’s rejection of
Mr. Malone’s late-filed submission on February 9, 2011.
Id. at *5-10. While Mr. Malone had attempted to file his
OSC complaint with the Board on appeal, the Board
rejected it because Mr. Malone failed to show that it was
unavailable prior to the close of the record below, despite
his due diligence. Id. at *4 n.2.
5                                            MALONE   v. MSPB


    The Board agreed that Mr. Malone’s appeal should be
dismissed for lack of jurisdiction. Id. at *10. The Board
found that Mr. Malone could not prove that he exhausted
his claims before OSC because his claims lacked clarity.
Id. at *12. The Board stated that it was “unable to dis-
cern what alleged protected disclosures are before the
Board and therefore cannot determine whether the appel-
lant raised these same disclosures before OSC.” Id. at
*13. Mr. Malone timely filed his appeal of the final deci-
sion to this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
                   STANDARD OF REVIEW
     Our standard of review in an appeal from the Board is
limited by statute. 5 U.S.C. § 7703(c); see Carr v. Soc.
Sec. Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999); O’Neill
v. Office of Pers. Mgmt., 76 F.3d 363, 364-65 (Fed. Cir.
1996). We may reverse a decision of the Board only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2006). Whether the Board has
jurisdiction over an appeal is a question of law, which we
review de novo. Herman v. Dep’t of Justice, 193 F.3d
1375, 1378 (Fed. Cir. 1999).
                        DISCUSSION
    Under this court’s precedent, the Board may exercise
jurisdiction over an IRA appeal only if the appellant has
exhausted his administrative remedies before OSC 1 and

    1  Pursuant to 5 U.S.C. § 1214(a)(3), only an em-
ployee without a right of direct appeal to the Board is
required to seek corrective action from OSC before seek-
ing corrective action from the Board. Briley v. Nat’l
MALONE   v. MSPB                                           6


makes non-frivolous allegations that (1) 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.2d
1367, 1371-72 (Fed. Cir. 2001). The Board may consider
only the disclosures of information and the personnel
actions that an appellant raises in his complaint to OSC.
Briley, 236 F.3d at 1377. To show exhaustion, the em-
ployee “must make allegations with sufficient detail to the
OSC.” Langer v. Dep’t of Treasury, 265 F.3d 1259, 1268
(Fed. Cir. 2001).
     The Board dismissed Mr. Malone’s complaint because
it was unable to determine whether he had exhausted his
claims with OSC before appealing to the Board. Final
Order at *13. Mr. Malone was ordered by the AJ to file
his OSC complaint—the most helpful document for this
determination—but he failed to do so. While Mr. Malone
attempted to submit his OSC complaint to the Board with
his petition for review, the Board rejected it because Mr.
Malone failed to make a showing that, despite his due
diligence, the complaint was not available when the
record closed. Id. at *4 n.2 (citing 5 C.F.R. § 1201.115(d)).
Without this complaint in the record, the Board at-
tempted to piece together other documents from which it
might have ascertained whether Mr. Malone had ex-
hausted his complaint, including his correspondence with
Ms. Rush at OSC and his appeal to the Board. Id. at *10-
13. The Board found that the lack of clarity in Mr.
Malone’s claims in his appeal and in the documents in the



Archives & Record Admin., 236 F.3d 1373, 1377 (Fed. Cir.
2001).
7                                           MALONE   v. MSPB


record prevented the Board from determining whether he
had exhausted his claims before OSC. Id.
    An examination of the record shows that Mr. Malone’s
correspondence with OSC is unclear and contradictory.
The August 10, 2010, letter from Ms. Rush summarizes
Mr. Malone’s claims, including a general claim about Mr.
Archibald, but does not provide any details about the
alleged reprisal for Mr. Malone’s disclosures.          Mr.
Malone’s response to Ms. Rush’s letter actually suggests
that Mr. Archibald was attempting to terminate him due
to prior whistleblowing activity not at issue on this appeal
rather than for his call to the Census fraud line on May
13, 2010, or his complaint with OSC. It is also unclear
from Ms. Rush’s letter whether OSC investigated any
claims against Ms. Coleman. Mr. Malone’s correspon-
dence with OSC suggests that he did not assert any
claims about Ms. Coleman until after he received the
August 10, 2010, letter closing his case. In examining the
correspondence with OSC, we cannot determine the
details of the claims raised by Mr. Malone or the extent of
OSC’s actions. In fact, the final letter from Ms. Rush on
August 25, 2010, seems to suggest that Mr. Malone did
not make his claims with enough specificity or clarity to
provide OSC a sufficient basis for its investigation. See
Langer, 265 F.3d at 1268.
    Mr. Malone’s allegations in his appeal to the Board
are equally unclear. One possible interpretation of his
allegations, based on their placement in the appeal form,
is that Mr. Malone made protected disclosures to Mr.
Archibald on May 11, 2010, and to Ms. Coleman on May
21, 2010. Another possible interpretation is that Mr.
Malone made disclosures about Mr. Archibald and Ms.
Coleman, and that there was a conspiracy to terminate
him based on these disclosures. A third possible interpre-
tation is that Mr. Malone made a protected disclosure
MALONE   v. MSPB                                           8


about Mr. Archibald to Ms. Coleman. With regard to any
alleged reprisal for protected disclosures, Mr. Malone’s
allegations seem to suggest that such reprisal, which was
allegedly carried out by Ms. Coleman, was due to Mr.
Malone’s disclosures to her or to the Census fraud line.
Mr. Malone, however, also seems to be suggesting that
Mr. Archibald was a part of the alleged reprisal against
him. This contradicts his statements to OSC that Mr.
Archibald’s alleged reprisal was due to prior whistleblow-
ing activities and not because of the whistleblowing at
issue here. A reader cannot determine whom Mr. Malone
allegedly accused of wrongdoing in his protected disclo-
sures, to whom he allegedly made any protected disclo-
sures, when he allegedly made these disclosures, which
disclosures were the reason for the alleged reprisal, or
who allegedly carried out the reprisal for the disclosures.
    After examining the record, we agree with the Board
that it lacked jurisdiction over this case due to an insuffi-
cient showing that Mr. Malone exhausted his claims
before OSC. The AJ and the Board attempted to discern
the nature of Mr. Malone’s allegations from the docu-
ments timely filed in the record. Without Mr. Malone’s
OSC complaint, however, the AJ and the Board could not
determine the nature of his complaint or the specific
incidents at issue in OSC’s investigation, and, therefore,
could not determine whether he exhausted his remedies
before OSC.
    Finally, with regard to Mr. Malone’s argument that
the Board erred by failing to address the merits of his
claims, the Board could not reach the merits in the ab-
sence of jurisdiction. See Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 911 (Fed. Cir. 2008).
9                                          MALONE   v. MSPB


                       CONCLUSION
    For the foregoing reasons, we find that the Board cor-
rectly dismissed Mr. Malone’s claim for lack of jurisdic-
tion. The decision of the Board is affirmed.
                       AFFIRMED
                          COSTS
    Each party shall bear its own costs.
