                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-3175

                                KENNETH L. ENGLER,

                                                      Petitioner,

                                           v.

                           DEPARTMENT OF THE NAVY,

                                                      Respondent.


      Kenneth L. Engler, of Virginia Beach, Virginia, pro se.

      Sean M. Dunn, 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 Franklin E. White, Jr., Assistant Director.

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                       NOTE: This disposition is nonprecedential.


      United States Court of Appeals for the Federal Circuit
                                        2008-3175

                                 KENNETH L. ENGLER,

                                                                 Petitioner,

                                            v.

                            DEPARTMENT OF THE NAVY,

                                                                 Respondent.

   Petition for review of the Merit Systems Protection Board in DC1221070650-W-1.

                           __________________________

                           DECIDED: August 8, 2008
                           __________________________


Before MAYER and LINN, Circuit Judges, and ILLSTON, District Judge.*

PER CURIAM.

       Kenneth L. Engler appeals the final order of the Merit Systems Protection Board

dismissing his individual right of action (“IRA”) appeal for lack of jurisdiction. Engler v.

Dep’t of the Navy, No. DC-1221-07-0650-W-1 (MSPB Aug. 23, 2007). We affirm.

       Engler was separated from his position as a GS-11 Nuclear Engineering

Technician with the Department of the Navy (“Navy” or “agency”) pursuant to a

________________________

         * Honorable Susan Yvonne Illston, United States District Court for the District
of Northern California, sitting by designation.
reduction-in-force (“RIF”) action after the Navy abolished his and 13 other similar

positions in 1994.     He previously filed an ultimately unsuccessful IRA appeal

concerning, inter alia, the agency’s decisions to abolish his position and separate him

from service pursuant to the RIF. This matter concerns his second IRA appeal, in which

he alleged that the agency’s refusal to reinstate him to a position in the GS-802 Nuclear

Series with a GS-802-12 grade subsequent to his RIF separation constituted retaliatory

action for the same previously alleged protected disclosures, which began four years

prior to the RIF action. Those disclosures included: (1) questioning the division head

via his supervisor about the appropriateness of GS-12 Engineers performing the work

functions of GS-11 Engineering Technicians, (2) challenging the accuracy of his

engineering technician position description and filing a classification appeal to have his

position description revised, and (3) voicing complaints about agency mismanagement

and waste of funds for hiring engineers to perform engineering technician duties.

      The board found that Engler failed to make non-frivolous allegations that his

alleged protected disclosures were a contributing factor in the personnel actions at

issue, and therefore dismissed his appeal for lack of jurisdiction.      Engler appeals,

arguing that the agency’s refusal to reinstate him to a position within the Nuclear

Engineering and Planning Department (“NEPD”) at the GS-12 grade level is attributable

to retaliation from managers within NEPD who harbor hard feelings towards him as a

result of his previously described disclosures. Engler also argues that he has a right to

seek corrective action from the board by filing an IRA appeal pursuant to 5 U.S.C.

§ 1214(a)(3).




2008-3175                                   2
          We must affirm the final decision of the board unless we conclude that it is: “(1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the

law; (2) obtained without procedure required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703. To establish

board jurisdiction over an IRA appeal, a complainant must exhaust his administrative

remedies with the Office of Special Counsel and make non-frivolous allegations that (1)

he made a protected disclosure under the Whistleblower Protection Act, 5 U.S.C.

§ 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s personnel

action.     Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

Although a petitioner may file an IRA appeal with the board pursuant to 5 U.S.C.

§ 1214(a)(3), he then bears the burden of establishing board jurisdiction in the matter

before a hearing on the merits ensues. See 5 C.F.R. § 1201.56(a)(2)(i).

          The board considered the following factors critical to its decision that Engler

failed to make non-frivolous allegations that his disclosures were a contributing factor in

the challenged personnel actions: (1) the twelve and one-half year time gap between

Engler’s disclosures and the personnel action appealed, (2) his failure to specify the

circumstances, dates or names of agency officials involved in decisions not to reinstate

him, and (3) his failure to offer any argument or evidence that agency officials involved

in the decision-making had any knowledge of his protected disclosures. Ultimately, the

board surmised that the true source of Engler’s dissatisfaction was a matter outside the

board’s jurisdiction, namely, compliance with a memorandum of understanding entered

into by his union and the agency in connection with an arbitration grievance hearing

following his RIF separation. We discern no error in the board’s determination that




2008-3175                                     3
Engler failed to make a non-frivolous allegation that his alleged protected disclosures

were a contributing factor in the agency’s decision not to reinstate him to an NEPD GS-

12 position after his RIF separation.




2008-3175                                 4
