                     NOTE: This disposition is nonprecedential.




United States Court of Appeals for the Federal Circuit
                                     2008-3225


                                   DIANE KING,

                                                    Petitioner,

                                         v.

                     DEPARTMENT OF VETERANS AFFAIRS,

                                                    Respondent.

      Diane King, of Tahlequah, Oklahoma, pro se.

      Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
                    NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-3225



                                     DIANE KING,

                                                             Petitioner,

                                           v.

                        DEPARTMENT OF VETERANS AFFAIRS,

                                                             Respondent.

Petition for review of the Merit Systems Protection Board in AT1221060462-B-1.

                           ___________________________

                           DECIDED: October 9, 2008
                           ___________________________


Before MAYER, SCHALL, and MOORE, Circuit Judges.

PER CURIAM.

      Diane King appeals the final decision of the Merit Systems Protection Board

(Board) dismissing her individual right of action (IRA) appeal for lack of jurisdiction.

King v. Dep’t of Veterans Affairs, 108 M.S.P.R. 576 (2008).         Because the Board

correctly concluded that Ms. King failed to set forth a nonfrivolous allegation that she

engaged in whistleblowing activity by making a protected disclosure, we affirm.

                                    BACKGROUND

      At the time of the events at issue, Ms. King was a Medical Technologist in the

Pathology and Laboratory Medicine Service at the Central Alabama Veterans Health
Care Systems in Montgomery, Alabama (the agency). 1 On August 22, 2005, Ms. King

sent an e-mail to her supervisor, John A. Wilson, with the subject line “FW: GWEN

FOSTER NEEDS TO BE FIRED.” In the e-mail, Ms. King alleged that Ms. Foster, a

phlebotomist employed by the agency, failed to timely collect two blood samples.

(Resp’t’s App. 3 (“A STAT BLOOD CULTURE WAS ORDERED AT 1201. GWEN DID

NOT COLLECT IT UNTIL 1420. A STAT CBC WAS ORDERED FOR 1200. GWEN

DID NOT COLLECT IT.”)).          Contrary to Ms. King’s allegations, the agency’s

investigation revealed that the orders to collect the two blood samples had been

canceled. The agency concluded that Ms. King had made false statements regarding

Ms. Foster, and it issued a notice of proposed reprimand on that basis on November 10,

2005. In reply to the proposed reprimand, Ms. King submitted an annotated version of

her August 22, 2005 e-mail, reasserting that Ms. Foster failed to collect the two blood

samples, but not addressing whether the orders to collect the samples had been

canceled. After considering Ms. King’s reply, the agency made the reprimand final on

December 7, 2005.

      On December 11, 2005, Ms. King filed a complaint with the Office of Special

Counsel (OSC), claiming that her e-mail was a protected disclosure and that the

reprimand constituted reprisal for whistleblowing.    In her complaint to OSC, she

identified four alleged whistleblower disclosures, including the August 21, 2005 e-mail:

(1) reporting patient neglect and abuse on October 30, 2005; (2) reporting patient

neglect on August 21, 2005; (3) reporting that an agency director lied to the agency’s



      1
            The agency later removed Ms. King from her position for other
misconduct. We affirmed the removal in King v. Department of Veterans Affairs, No.
2008-3043, 2008 U.S. App. LEXIS 9839 (Fed. Cir. May 6, 2008).


2008-3225                                  2
inspector general on July 29, 2005; and (4) reporting patient neglect on October 14,

2004 through July 28, 2005.

       After exhausting her administrative remedies with OSC, Ms. King filed an IRA

appeal to the Board. In an initial decision, issued July 17, 2006, the AJ denied Ms.

King’s request for corrective action because the agency had shown that it would have

taken the same personnel action in the absence of Ms. King’s alleged protected

disclosure.   Following Ms. King’s petition, the Board ruled that the AJ should have

examined the Board’s jurisdiction before considering the merits of the appeal. King v.

Dep’t of Veterans Affairs, 105 M.S.P.R. 21, 25 (2007).           The Board was unable,

however, to determine its jurisdiction because the OSC complaint lacked sufficient

information, and the AJ had never put Ms. King on notice of what she must do to

establish jurisdiction.   Id. at 27-29.    The Board vacated the initial decision and

remanded the appeal to the AJ to determine whether the Board had jurisdiction over

Ms. King’s petition. Id. at 29.

       After the AJ provided Ms. King with notice of the jurisdictional requirements on

February 27, 2007, Ms. King submitted a large number of documents that the AJ found

to be unrelated to the issue of jurisdiction. In his second initial decision, issued June 5,

2007, the AJ dismissed the appeal for lack of jurisdiction because Ms. King failed to set

forth a nonfrivolous allegation that any of the specific disclosures set forth in her OSC

complaint were protected or were a contributing factor in her reprimand. King v. Dep’t

of Veterans Affairs, No. AT-1221-06-0462-B-1, 2007 MSPB LEXIS 1730, at *4-5 (June

5, 2007).




2008-3225                                    3
        Ms. King filed a petition for review of the second initial decision, which was

denied on October 18, 2007. King, 108 M.S.P.R. 576. Ms. King now timely appeals.

                                      DISCUSSION

        The scope of the Board's jurisdiction is a question of law, which we review de

novo.   Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008) (“The

board’s jurisdiction is not plenary, but is limited to those matters over which it has been

granted jurisdiction by law, rule or regulation.”). Ms. King has the burden of proving that

the Board has jurisdiction by a preponderance of the evidence.                  5 C.F.R.

§ 1201.56(a)(2)(i).

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

administrative remedies before the OSC and makes “non-frivolous allegations” that (1)

she 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).          Because the agency

stipulated that Ms. King exhausted her administrative remedies before the OSC, the

only question on appeal is whether she set forth a nonfrivolous allegation that she

engaged in whistleblowing activity by making a protected disclosure.

        The Board reviews the evidence submitted by Ms. King to ascertain whether it

was reasonable to believe that any of Ms. King’s disclosures qualified as a protected

disclosure under 5 U.S.C. § 2302(b)(8):

        (A) any disclosure of information by an employee or applicant which the
        employee or applicant reasonably believes evidences --
        (i) a violation of any law, rule, or regulation, or




2008-3225                                   4
       (ii) gross mismanagement, a gross waste of funds, an abuse of authority,
       or a substantial and specific danger to public health or safety. . . .
Lachance v. White, 174 F.3d 1378, 1380-81 (Fed. Cir. 1999); see also Huffman v.

Office of Pers. Mgmt., 92 M.S.P.R. 429, 433 (2002) (“To establish that he held such a

reasonable belief, an appellant need not prove that the condition disclosed actually

established one or more of the listed categories of wrongdoing, but he must show that

the matter disclosed was one which a reasonable person in his position would believe

evidenced one of the situations specified in 5 U.S.C. § 2302(b)(8).”).

       We agree with the Board that the evidence submitted by Ms. King was

insufficient to establish that it was reasonable to believe that Ms. King’s disclosures

evidenced one of the defined types of misbehavior. With regard to the report of patient

neglect and abuse on October 30, 2005, and the report(s) of patient neglect on October

14, 2004 through July 28, 2005, Ms. King provides no information other than the bare

allegations that she made protected disclosures on those dates. Because she failed to

provide any information bearing on the content of these disclosures necessary to

evaluate them under Lachance, Ms. King failed to set forth a nonfrivolous allegation with

regard to these disclosures. Similarly, with regard to the report that an agency director

lied to the agency’s inspector general on July 29, 2005, Ms. King provided nothing other

than a bare allegation in her complaint to OSC. In a pleading dated April 23, 2006, she

elaborated somewhat on the circumstances surrounding the alleged lie, but nonetheless

failed to set forth a nonfrivolous allegation with regard to this disclosure.

       Ms. King’s most detailed allegation relates to her August 21, 2005 e-mail. In the

e-mail, Ms. King reports that Ms. Foster failed to comply with orders to collect blood

samples. What Ms. King did not do—in her complaint to OSC, her e-mail, or in her



2008-3225                                     5
reply to the proposed reprimand—is explain or provide facts indicating why Ms. Foster’s

alleged behavior was at all problematic. Ms. King does not disclose how she became

aware of the orders, whether she was aware that the orders had been canceled, the

nature of Ms. Foster’s alleged failure, or the relevance of Ms. Foster’s alleged failure to

the categories of misbehavior enumerated in 5 U.S.C. § 2302(b)(8).                Lacking

information of this sort, Ms. King has failed set forth a nonfrivolous allegation with

regard to her August 21, 2005 disclosure.

       Because the Board correctly concluded that Ms. King failed to set forth a

nonfrivolous allegation that she engaged in whistleblowing activity by making a

protected disclosure the decision of the Board is affirmed.

                                            COSTS

       No costs.




2008-3225                                   6
