       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
             __________________________

            WILLIAM A. HIMCHAK, III,
                   Petitioner,
                          v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent.
             __________________________

                     2011-3102
             __________________________

   Petition for review of the Merit Systems Protection
Board in case no. DC1221100311-W-1.
               __________________________

             Decided: November 10, 2011
             ___________________________

   WILLIAM A. HIMCHAK, III, of Chambersburg, Pennsyl-
vania, pro se.

   MICHAEL A. CARNEY, General 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.
             __________________________
HIMCHAK   v. MSPB                                         2


  Before RADER, Chief Judge, PLAGER, and DYK, Circuit
                        Judges.
PER CURIAM.
    William A. Himchak, III, petitions for review of a final
order of the Merit Systems Protection Board (“Board”).
The Board dismissed the appeal for lack of jurisdiction.
Himchak v. Dep’t of Navy (“Final Order”), DC-1221-10-
0311-W-1 (M.S.P.B. Jan. 25, 2011). We affirm.
                       BACKGROUND
    Himchak was selected on May 7, 2008, for a position
of Office Automation Clerk at the Department of the
Navy’s medical center in Portsmouth, Virginia. Him-
chak’s selection was subject to a one-year probationary
period and was contingent on his completion of a back-
ground check. Himchak submitted the Questionnaire for
Public Trust Positions (“SP-85P”) for the background
check, but did not include a full seven years of work
history as required. On July 2, 2008, the agency informed
Himchak that his SF-85P would be rejected unless it
included a full seven-year work history, and later made
repeated requests that Himchak supplement his incom-
plete SF-85P. The agency informed Himchak that he was
“not required to redo the entire SF85P,” but that “the
entire [seven-year period] must be covered.” A. 108. The
agency also indicated that “[a] successful background
check [was] necessary for continued employment.” Id.
    Himchak asserted that he had already submitted the
requested information, and that the agency was request-
ing the same information that he had already submitted.
Himchak allegedly became concerned that the agency lost
or misplaced his SF-85P, which contained personal infor-
mation including his social security number. On March
31, 2009, Himchak disclosed to the agency that he sus-
3                                         HIMCHAK   v. MSPB


pected a Privacy Act violation based on his concern that
his personal information and social security number
included in his SF-85P had not properly been maintained
and safeguarded in accordance with the Act. On April 20,
2009, Himchak contacted his Congressman to request an
immediate congressional inquiry regarding the location of
his SF-85P.
     On April 27, 2009, the agency submitted Himchak’s
background information, including his incomplete SP-
85P, to the Office of Personnel Management (“OPM”) so
that OPM, as required, could perform the background
check. OPM rejected Himchak’s background information
due to the incomplete employment information, among
other reasons. Himchak was subsequently terminated
for: “(1) failure to comply with procedures for required
background investigation; (2) inappropriate conduct; and
(3) failure to obey directions in a timely manner.” A. 70.
    On July 28, 2009, Himchak filed a complaint with the
Office of Special Counsel (“OSC”) alleging, among other
things, that his termination was retaliation for protected
whistleblowing activities. According to Himchak, his
complaints to the agency and to his Congressman regard-
ing the agency’s violation of the Privacy Act were pro-
tected disclosures. See 5 U.S.C. § 2302(b)(8). The OSC
terminated its inquiry with no corrective action.
    Himchak then filed an Individual Right of Action
(“IRA”) appeal to the Board under 5 U.S.C. § 1221. Him-
chak again argued that he was improperly terminated in
retaliation for his protected disclosures regarding a Pri-
vacy Act violation. However, the Administrative Judge
(“AJ”) found that Himchak’s allegation of a Privacy Act
violation was unsupported by “affidavits or other docu-
mentary evidence” and was “nothing more than a frivo-
lous allegation as there ha[d] never been any indication
HIMCHAK   v. MSPB                                          4


that the agency misplaced . . . any . . . portion of his
original SF-85P.” Himchak v. Dep’t of Navy, DC-1221-10-
0311-W-1, slip op. at 10-11 (M.S.P.B. Jun. 17, 2010).
Thus, the AJ held that Himchak “could not have reasona-
bly believed that the agency lost or misplaced his SF-85P
or that it violated the Privacy Act or any other law, rule,
or regulation.” Id. at 11. Because Himchak “failed to
raise a non-frivolous allegation that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8),” the AJ dismissed
the case for lack of jurisdiction. Id. Himchak sought
review of the AJ’s initial decision by the full Board. The
Board denied Himchak’s petition for review, making the
decision of the AJ the decision of the Board. Final Order,
slip op. at 2-3. Himchak timely petitioned for review by
this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                        DISCUSSION
    With limited exceptions that are inapplicable here,
probationary employees have no right to appeal an ad-
verse action because they are excluded from the definition
of “employee” under 5 U.S.C. § 7511(a)(1)(A). On appeal
to the Board, Himchak did not dispute that his status as a
probationary employee precluded him from establishing
jurisdiction for an adverse action claim. Accordingly, the
sole issue before us is whether the Board had jurisdiction
over Himchak’s IRA appeal.
    Our review of Board decisions is limited. We may
only set aside agency actions, findings, or conclusions that
we find to be “(1) arbitrary, capricious, an abuse of discre-
tion, 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); see also Bennett v. Merit
Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). The
5                                           HIMCHAK   v. MSPB


Board’s determination that it lacked jurisdiction is a
question of law that this court reviews de novo. Bennett,
635 F.3d at 1218.
    Himchak contends that the Board does have jurisdic-
tion over his IRA appeal because his termination was
retaliation for his protected disclosures regarding the
agency’s alleged Privacy Act violation. See 5 U.S.C.
§ 2302(b)(8). Himchak’s theory is that the agency mis-
placed his SF-85P, which contained personal information
including his social security number, and that such mis-
management constituted a violation of the Privacy Act.
    “[T]he Board has jurisdiction over an IRA appeal if
the appellant has exhausted his administrative remedies
before the OSC and 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 . . . a personnel action.” Yunus v. Dep’t of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)
(internal quotation marks omitted). A disclosure qualifies
as a “protected disclosure” if the employee “reasonably
believes” that the disclosure evidences “a violation of any
law, rule, or regulation” or “gross mismanagement.” 5
U.S.C. § 2302(b)(8)(A). Accordingly, “[t]he Board must
look for evidence that it was reasonable [for the peti-
tioner] to believe that the disclosures revealed misbehav-
ior described by section 2302(b)(8).” Lachance v. White,
174 F.3d 1378, 1380 (Fed. Cir. 1999).
    The fact that the agency concluded that Himchak’s
application was incomplete cannot, of course, demonstrate
that the agency lost or misplaced the original information.
In order to support his claim that the agency lost his
information, Himchak apparently relies on an agency e-
mail dated May 28, 2009, from Dale Bridges, an employee
HIMCHAK   v. MSPB                                        6


in the medical center’s Human Resources Office, to Jane
Ackiss, the Director of the medical center’s Human Re-
sources Office, stating how certain employees must com-
plete a page of SF-85P again because of a “possible
compromise” of their SF-85P forms. A. 52. However,
Himchak did not become aware of the e-mail until July
2009, and accordingly, the e-mail does nothing to estab-
lish Himchak’s reasonable belief of Privacy Act violations
at the time of his March 31, 2009, disclosure to the agency
or his April 20, 2009, disclosure to his Congressman.
    Himchak argues that the Board’s assessment of his
case was biased. However, he has made no showing of “a
deep-seated favoritism or antagonism” on behalf of the
Board “that would [have made] fair judgment impossible.”
Bieber v. Dep't of Army, 287 F.3d 1358, 1362 (Fed. Cir.
2002) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)).
    Accordingly, we affirm the Board’s holding that it
lacked jurisdiction because Himchak failed to make a non-
frivolous allegation that he engaged in protected whistle-
blowing activity.
                          AFFIRMED
                             COSTS
   No costs.
