                  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


                                          04-3313

                                RANDOLPH W. WILKINS,

                                                  Petitioner,

                                             v.

                              DEPARTMENT OF DEFENSE,

                                                  Respondent.

                            ___________________________

                            DECIDED: December 10, 2004
                            ___________________________


Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON, Circuit
Judge.

PER CURIAM.

                                        DECISION

       Randolph Wilkins petitions for review of a decision of the Merit Systems

Protection Board, Docket No. DC-1221-03-0411-W-1, dismissing his individual-right-of-

action (“IRA”) appeal for lack of jurisdiction. We affirm.

                                       DISCUSSION

       Mr. Wilkins worked for the Department of Defense Dependent School

Headquarters ("DODDS") as a GS-11 level Physical Security Specialist. Mr. Wilkins

was stationed in Germany.       His direct supervisor, Thomas Ellinger, was located in
Turkey, where he served as District Superintendent of the Turkey/Spain/Islands District.

During his time in Germany, Mr. Wilkins brought several concerns to the attention of

Gary Jones, a GS-12 level Safety and Security Officer who worked in the same office,

although under a different chain of command.        Mr. Wilkins' concerns pertained to

improper disclosures of classified information to DODDS employees who did not

possess the necessary security clearances. In particular, Mr. Wilkins reported to Mr.

Jones in October of 2000 that the principal of Bahrain Elementary/High School, Sandy

Daniels, had made classified disclosures regarding terrorist threat levels to two

employees who did not have security clearances—Mr. Ellinger and Fred Murphy, Chief

of Management Services for DODDS. Mr. Wilkins also reported to Mr. Jones in January

and February of 2001 that he had overheard conversations in a hallway at his

workplace about classified information involving base closures.

      Mr. Wilkins was terminated during his probationary period. In the letter informing

Mr. Wilkins of his termination, Mr. Ellinger stated that “since you were hired, there have

been incidents that cause me to believe that you are not properly dealing with others in

our organization and the military community.” The letter explained that Mr. Wilkins had

“made comments to staff members and administrators that were ‘off-color’ or of a sexual

nature”; that he had “attempted to engage military officers in inappropriate

conversations concerning promotions, other military personnel and operational

missions”; and that he had been “rude in dealing with a staff member in connection with

travel arrangements."

      After his termination, Mr. Wilkins filed a complaint with the Office of Special

Counsel (“OSC”), alleging that he was terminated because he was a whistleblower. Mr.




04-3313                                     2
Wilkins referred to the concerns he voiced to Mr. Jones as the acts of whistleblowing for

which the agency had allegedly retaliated against him. After an investigation, the OSC

closed its inquiry on Mr. Wilkins’ complaint on the ground that even if his disclosures to

Mr. Jones were disclosures protected by the Whistleblower Protection Act (“WPA”), 5

U.S.C. § 2302(b)(8), Mr. Wilkins had failed to establish a causal connection between the

disclosures and his termination. As a result, the OSC concluded that the WPA did not

give Mr. Wilkins a basis for challenging the agency’s act of terminating him.

         Mr. Wilkins then filed an IRA appeal with the Merit Systems Protection Board.

The administrative judge who was assigned to the case ruled that the Board did not

have jurisdiction to hear the appeal because Mr. Wilkins had not made non-frivolous

allegations that he made a protected disclosure and that the disclosure was a

contributing factor in the agency’s decision to terminate him.       With respect to the

“protected disclosure” issue, the administrative judge found that “[a]t best, the

disclosures represent ‘minor and inadvertent miscues occurring in the conscientious

carrying out of one’s duties’ which . . . were trivial in nature.” With respect to the

“contributing factor” issue, the administrative judge explained that Mr. Wilkins had not

alleged that Mr. Jones played any role in the termination action, nor had he alleged that

Mr. Ellinger knew of the disclosures Mr. Wilkins made to Mr. Jones or that Mr. Ellinger

was influenced to take the termination action by Mr. Jones or anyone else who had

knowledge of the disclosures.     Accordingly, the administrative judge dismissed Mr.

Wilkins’ appeal for lack of jurisdiction.   Mr. Wilkins petitioned for review by the full

Board, but the full Board denied the petition. Mr. Wilkins now seeks review by this

court.




04-3313                                      3
                                     DISCUSSION

      The 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 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). The agency does not dispute

that Mr. Wilkins exhausted his administrative remedies before the OSC and that the

agency’s act of terminating his appointment constituted a personnel action within the

meaning of the WPA. The determinative issue in this case is therefore whether the

Board properly denied jurisdiction by showing that Mr. Wilkins failed to make non-

frivolous allegations that he had made protected disclosures and that there was a

causal connection between those disclosures and his termination. Because we uphold

the Board’s decision on the ground that Mr. Wilkins failed to make non-frivolous

allegations that his disclosures contributed to the agency’s decision to terminate him, it

is not necessary for us to address the question whether the statements that Mr. Wilkins

alleges he made to Mr. Jones constitute disclosures that are protected under the WPA.

      An employee “may demonstrate that the disclosure was a contributing factor in

the personnel action through circumstantial evidence, such as evidence that—(A) the

official taking the personnel action knew of the disclosure; and (B) the personnel action

occurred within a period of time such that a reasonable person could conclude that the

disclosure was a contributing factor in the personnel action." Huffman v. Office of Pers.

Mgmt., 263 F.3d 1341, 1353 n.4 (Fed. Cir. 2001), quoting 5 U.S.C. § 1221(e)(1). In this




04-3313                                     4
case, neither the knowledge of the official who ordered the termination nor the timing of

the termination action supports an inference that Mr. Wilkins’ disclosures contributed to

his termination.

       First, there is no evidence that Mr. Ellinger, the supervisor who terminated Mr.

Wilkins, was aware of Mr. Wilkins’ disclosures. Mr. Wilkins suggests that Mr. Ellinger

may have learned of his disclosures because Mr. Jones spoke with Mr. Murphy about

"problems" with Mr. Wilkins, and as a result, Mr. Murphy met with Mr. Ellinger and "had

[Mr. Ellinger] sign the termination action."

       Mr. Wilkins' argument fails both because it is based on unsubstantiated

speculation and because it differs from the argument he made before the Board. “Non-

frivolous allegations cannot be supported by unsubstantiated speculation in a pleading

submitted by petitioner." Marcino v. U.S. Postal Serv., 344 F.3d 1199, 1204 (Fed. Cir.

2003), quoting Dorrall v. Dep’t of the Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002).

Rather, a petitioner must support his allegations with "affidavits or other evidence." Id.;

see also Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002)

("whether allegations are 'non-frivolous' is determined by the written record.").      Mr.

Wilkins fails to provide any evidentiary support for his assertion that Mr. Jones met with

Mr. Murphy and discussed problems that included Mr. Wilkins’ disclosures. He merely

speculates that the two met and discussed the disclosures. Likewise, Mr. Wilkins fails

to provide any evidentiary support for his assertion that Mr. Murphy conveyed

information regarding the disclosures to Mr. Ellinger.

       Moreover, Mr. Wilkins did not make the argument regarding Mr. Ellinger’s

awareness of his disclosures to the Board. He has therefore waived that argument.




04-3313                                        5
Arguments that are not raised before the Board may not subsequently be raised on

appeal. Henry v. Dep’t of the Navy, 902 F.2d 949, 953 (Fed. Cir. 1990); see Meglio v.

Merit Sys. Prot. Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1985). In the brief he filed with the

Board, Mr. Wilkins did not allege that Mr. Jones had passed on knowledge of Mr.

Wilkins’ disclosures to either Mr. Ellinger or Mr. Murphy. Rather, he merely asserted

that “[s]hortly before his termination, Mr. Murphy (Superintendent of Bahrain) and Mr.

Ellinger met with Sandy Daniels” and that “Mr. Murphy and Mr. Ellinger then jointly

made the decision to terminate [him].” Those statements are insufficient to provide a

basis from which to infer that Mr. Ellinger or Mr. Murphy were aware of Mr. Wilkins’

disclosures, as they fail even to allege that Mr. Jones and Mr. Murphy spoke with one

another about Mr. Wilkins.      Mr. Wilkins now argues that Mr. Jones “had private

conversations with . . . Fred Murphy, specifically about [him],” and he argues, based on

that assertion, that it can be inferred that the two discussed his disclosures and that Mr.

Ellinger’s termination decision was based, at least in part, on those disclosures. Mr.

Wilkins, however, failed to make that argument to the Board, and he has therefore

waived his right to make that assertion on appeal.

       In addition to arguing that his supervisor knew of his disclosures, Mr. Wilkins

contends that the period of time between his disclosures and his termination (eight

months and four months, respectively) was brief enough that a reasonable person could

conclude that the disclosures contributed to the agency's decision to terminate him.

Again, however, he failed to make that argument to the Board and therefore has waived

it.




04-3313                                     6
       In sum, we agree with the administrative judge that in his submission to the

Board Mr. Wilkins failed to make a non-frivolous allegation of a causal connection

between his disclosure of alleged violations and his termination.        Based on the

administrative judge’s analysis of that issue and our rejection of the new arguments that

Mr. Wilkins has made for the first time in this court, we uphold the Board’s dismissal of

his IRA appeal for lack of jurisdiction.




04-3313                                    7
