                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2008-3351

                               MICHAEL J. RILEY, SR.,

                                                             Petitioner,

                                           v.

                    DEPARTMENT OF HOMELAND SECURITY,

                                                             Respondent.


      Michael J. Riley, Sr., of New Orleans, Louisiana, pro se.

       William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant Director.

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                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2008-3351


                                MICHAEL J. RILEY, SR.,

                                                            Petitioner,

                                           v.

                      DEPARTMENT OF HOMELAND SECURITY,

                                                            Respondent.

              Petition for review of the Merit Systems Protection Board in
              DA1221080196-W-1.
                            ____________________________

                              DECIDED: March 6, 2009
                           ____________________________


Before LOURIE, ARCHER, and LINN, Circuit Judges.

PER CURIAM.
                                       DECISION

       Michael J. Riley appeals from the final decision of the Merit Systems Protection

Board (the “Board”) dismissing his appeal for lack of jurisdiction.   Riley v. Dep’t of

Homeland Sec., DA-1221-08-0196-W-1 (M.S.P.B. May 21, 2008). Because Riley has

not demonstrated that the Board’s decision was an abuse of discretion, contrary to law,

or otherwise reversible, we affirm.

                                      BACKGROUND

       Beginning on January 24, 2006, Riley received a series of temporary excepted

service appointments to the position of Disaster Assistance Employee (“DAE”), Office of
Equal Rights, with the Federal Emergency Management Agency (“the Agency”) in New

Orleans, Louisiana. The last of his appointments was a temporary three-year excepted

service appointment to the position of Equal Rights Officer on April 1, 2007, not to

exceed March 27, 2010.

      On August 1, 2007, Riley was notified that he was being terminated immediately

because of alleged unauthorized charges on his government-issued travel charge card

totaling over $7000.   On or about September 16, 2007, Riley filed a Complaint of

Possible Prohibited Personnel Practice or Other Prohibited Activity with the Office of

Special Counsel (“OSC”). He reported that he had been the subject of reprisal for

“disagreement with the Deputy Manager of the Equal Rights Cadre,” primarily regarding

his assignments, and for complaining about inadequate supervision. He characterized

his dismissal for alleged unauthorized travel charge card usage as a pretext.       On

December 19, 2007, Riley wrote a letter to the OSC stating that he “worked very hard to

ensure the rights of victims [of the Hurricane Katrina disaster] and employees, while

advising management of the rights and responsibilities, as the local-hire Equal Rights

Officer.” Riley again indicated that he believed “that the credit card use was a pretext

for discharging him” and said he was fired for complaints and disagreements with

managers “who did not want to follow [Equal Employment Opportunity] rules.”

      On December 20, 2007, the OSC advised Riley that it was concluding its inquiry

into his allegations and that he had the right to seek corrective action from the Board.

Riley appealed to the Board on January 22, 2008.

      In his appeal, Riley alleged that between June 22, 2007, and July 31, 2007, he

made seven disclosures via e-mail. The seven e-mails, which he attached to his Board



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                                       -2-
appeal, dealt primarily with complaints to and about his manager regarding the location

of assignments and inability to attend a training session.            For example, Riley

characterized one e-mail he wrote to his manager as indicating that he “didn’t complain

when 1) force[d] to submit to DAE Evaluation not required of other local hire[s] at [the]

Katrina disaster; 2) sent without notice to Harhan[,] [LA] disaster without notice and

personal cost of $1000 to complete assignment; 3) without notice deployed to

Greensburg, KS disaster and stopped [en] route without reimbursement; 4) refusal to

all[ow] me to attend the mandatory [Equal Rights Officer] Update training.”           Riley

asserted that because of his alleged whistleblowing, he was subjected to the following

personnel actions: 1) not being allowed to attend training mandatory for his position; 2)

being advised of problems with his travel charge card usage; 3) termination of his travel

charge card; and 4) termination of his appointment for unauthorized use of the travel

charge card.

       The administrative judge (“AJ”) assigned to his case advised Riley twice of what

was required to establish the Board’s jurisdiction over the matter as an individual right of

action (“IRA”) appeal, viz., that he had to identify with specificity each of his alleged

whistleblower disclosures, every personnel action he claimed was or was not taken in

retaliation for his whistleblower disclosures, and how each identified disclosure was a

contributing factor in the Agency’s decision to take or fail to take each of the identified

personnel actions. In response, Riley identified some of the seven e-mails that he had

provided with his appeal as his alleged protected disclosures and indicated that several

personnel actions were taken against him.




2008-3351
                                         -3-
      On May 21, 2008, the AJ dismissed Riley’s IRA appeal as failing to make

nonfrivolous allegations of fact that, if proven, could show that he made any protected

disclosure. The AJ found that Riley failed to raise facts that showed that any of his e-

mail messages evidenced a violation of law, rule, or regulation that the Whistleblower

Protection Act (“WPA”) intended to encourage and protect. Instead, the AJ stated that

the e-mails were merely complaints about decisions that Riley’s manager made

regarding his training, assignments, and treatment. The AJ also found that the e-mail

messages did not allege facts that rose to the level of an abuse of authority.

      Riley filed a petition for review of the AJ’s initial decision. On August 21, 2008,

the Board affirmed and thus rendered the AJ’s initial decision final.            Riley timely

appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

      The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of

discretion, 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) (2006). This court reviews whether the board

has jurisdiction over an appeal de novo. Torain v. U.S. Postal Serv., 83 F.3d 1420,

1422 (Fed. Cir. 1996).     Riley lacked appeal rights because he was a temporary

excepted employee. However, the Board “has jurisdiction over an IRA appeal if an

appellant has exhausted his administrative remedies before the OSC and makes

‘nonfrivolous allegations’ that (1) he engaged in whistleblowing by making a protected

disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor



2008-3351
                                        -4-
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)

(citations omitted).

       In the instant action, Riley and the Agency dispute whether Riley’s e-mails are

protected whistleblowing disclosures.      Riley argues that he raised a nonfrivolous

allegation of protected whistleblowing activity by disclosing that the Agency terminated

him without notice or counseling by his supervisor, in violation of Federal Emergency

Management Agency Instruction 6200.2. He then argues that his disclosures were a

contributing factor to his termination and that the alleged misuse of the travel credit card

was a pretext for firing him. In response, the Agency asserts that none of the e-mails

submitted by Riley fits the criteria for protected disclosures. The Agency argues that the

e-mails do not identify any information that evidences a violation of law, rule, or

regulation, nor could they be construed as any other disclosure protected under the

WPA.

       We agree with the Agency that the Board’s decision was not an abuse of

discretion, contrary to law, or otherwise reversible.      The WPA defines a protected

disclosure as “information which the employee or applicant reasonably believes

evidences—(i) a violation of any rule, law, or regulation, or (ii) gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety.” 5 U.S.C. § 2302(b)(8) (2006). No such disclosure was made

here. It is clear that the e-mails that Riley points to as his alleged disclosures do not fit

into any category of protected disclosures under the WPA. The e-mails indicate that

Riley had personal disagreements with legitimate managerial decisions such as where



2008-3351
                                         -5-
to send him on assignments and terminating his employment based on problems with

his travel charge card.     Those disagreements fall far short of demonstrating any

violations of law, gross mismanagement, abuse of authority, or reporting of any other

kind of activity that could be considered a whistleblowing disclosure.

       Thus, the Board did not abuse its discretion, commit any error of law, or

otherwise reversibly err, in dismissing Riley’s appeal for lack of jurisdiction. Accordingly,

we affirm the Board’s decision.

                                          COSTS

       No costs.




2008-3351
                                         -6-
