       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                RAPHAEL R. ADAM,
                    Petitioner

                           v.

          DEPARTMENT OF THE ARMY,
                   Respondent
             ______________________

                      2015-3111
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-1221-12-0695-B-1.
                ______________________

               Decided: August 30, 2016
                ______________________

    DANIELLE BESS OBIORAH, Obiorah Fields, LLC, Jones-
boro, GA, for petitioner.

    MELISSA M. DEVINE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
ELIZABETH ANNE SPECK, BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., CLAUDIA BURKE.
                ______________________

   Before NEWMAN, REYNA, and STOLL, Circuit Judges.
2                                             ADAM   v. ARMY



PER CURIAM.
    This appeal is from an MSPB decision in an Individu-
al Right of Action (IRA) appeal taken by Raphael R.
Adam. 1 The MSPB determined that Mr. Adam failed to
show that any protected disclosure was a contributing
factor to the non-selection action from which he appeals.
We affirm the MSPB’s decision.
                       BACKGROUND
    Mr. Adam was employed as one of fifteen instructors
in the Iraqi Language Department of the Defense Lan-
guage Institute. In April 2011 this Department was
closed and replaced with three Arabic Language groups,
with positions for twelve instructors. Mr. Adam applied,
but he was not selected for any of these twelve positions.
His employment ended at the conclusion of his then not-
to-exceed period of appointment.
    When Mr. Adam was first employed in April 2004, he
received an excepted appointment with no tenure and a
not-to-exceed date of April 3, 2005. He received a series of
extensions, and his tenure status was changed to indefi-
nite. His last extension occurred on April 25, 2011, with a
not-to-exceed date of September 30, 2011. Mr. Adam was
notified in June 2011 that he had not been selected for
any of the Arabic Language positions, and that his em-
ployment would end on September 30, 2011. At his
request, the separation was changed to a voluntary re-
tirement.
    On September 6, 2011 Mr. Adam filed an equal em-
ployment opportunity complaint, stating that his non-



    1 Adam v. Dep’t of Army, No. SF-1221-12-0695-B-1
(MSPB Feb. 5, 2015) (“Final Order”).
ADAM   v. ARMY                                          3



selection was the result of discrimination on the basis of
national origin. The agency dismissed this complaint as
untimely filed. On March 15, 2012 Mr. Adam filed a
whistleblower complaint with the Office of Special Coun-
sel, stating that his non-selection was in retaliation for
protected disclosures that he had made in 2009 and 2010
to a Dean of the Language Institute. Mr. Adam stated
that (1) in August 2009 he reported several examples of
misuse of government resources and violation of travel
policies and fraud by some language instructors on travel
duty, and (2) in April 2010 he was one of a group of eight
instructors who reported favoritism, nepotism, bribery,
and inappropriate comments by their supervisor at the
Institute. The Special Counsel dismissed the complaint
on June 19, 2012, and advised Mr. Adam of his right to
file an IRA appeal to the MSPB.
    Mr. Adam appealed to the MSPB, and the full Board
found (reversing the administrative judge) that Mr. Adam
made a nonfrivolous allegation that the 2009 group of
disclosures constituted protected whistleblowing. The
MSPB also concluded that Mr. Adam had not made a
nonfrivolous allegation that the 2010 disclosures were
protected whistleblowing, because he had not alleged facts
to show, as the statute requires, a violation of any law,
rule, or regulation, or gross mismanagement, a gross
waste of funds, or a substantial and specific danger to
public health. The Board remanded to the administrative
judge, and Mr. Adam withdrew his request for a hearing.
    The administrative judge then found, on the record
and argument, that Mr. Adam had not proved by a pre-
ponderance of evidence that the selection panel had
actual or constructive knowledge of the 2009 disclosures.
The full Board affirmed, stating that Mr. Adam had not
identified “what documents, if any, may have been includ-
ed in his OPF [official personnel file] that would have
indicated his whistleblowing activity” to the selection
panel. Final Order at 5–6. The MSPB referred to “the
4                                              ADAM   v. ARMY



sworn statement of one of the selection panel members
that the selection panel was not aware of the appellant’s
whistleblowing activity,” and the sworn statement of the
Dean of the Institute, to whom the 2009 disclosures were
made, that he had not discussed Mr. Adam’s whistleblow-
ing with the selection committee. Id. at 6. The MSPB
concluded that Mr. Adam had not met his burden of
establishing that whistleblowing reprisal was a contrib-
uting factor in his non-selection. This appeal followed.
                        DISCUSSION
    The Whistleblower Protection Act protects govern-
ment employees from retaliation for disclosures that “an
employee . . . reasonably believes evidences (i) a violation
of any law, rule, or regulation, or (ii) gross mismanage-
ment, 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)(A). The requisite reasonable belief
exists when “a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by
the employee [could] reasonably conclude that the actions
of the government evidence” such wrongdoing. LaChance
v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
     We must affirm the decision of the MSPB unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review de novo whether
the MSPB has jurisdiction over an appeal. Johnston v.
Merit Systems Protection Board, 518 F.3d 905, 909 (Fed.
Cir. 2008).
    Mr. Adam argues that he presented sufficient evi-
dence to establish a prima facie case that his 2009 disclo-
sures were a contributing factor to his non-selection, and
that he presented nonfrivolous allegations that the 2010
ADAM   v. ARMY                                              5



disclosures were protected. We address these issues in
turn.
                             A
    The whistleblower statute places the burden on the
employee to show, by a preponderance of the evidence,
that a protected disclosure was a “contributing factor” to
the personnel action. 5 U.S.C. § 1221(e) provides:
   (e)(1) Subject to the provisions of paragraph (2),
   in any case involving an alleged prohibited per-
   sonnel practice as described under section
   2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or
   (D), the Board shall order such corrective action
   as the Board considers appropriate if the employ-
   ee, former employee, or applicant for employment
   has demonstrated that a disclosure or protected
   activity described under section 2302(b)(8) or sec-
   tion 2302(b)(9)(A)(i), (B), (C), or (D) was a contrib-
   uting factor in the personnel action which was
   taken or is to be taken against such employee,
   former employee, or applicant. The employee may
   demonstrate that the disclosure or protected activ-
   ity was a contributing factor in the personnel ac-
   tion through circumstantial evidence, such as
   evidence that--
   (A) the official taking the personnel action knew
   of the disclosure or protected activity; and
   (B) the personnel action occurred within a period
   of time such that a reasonable person could con-
   clude that the disclosure or protected activity was
   a contributing factor in the personnel action.
   (2) Corrective action under paragraph (1) may not
   be ordered if, after a finding that a protected dis-
   closure was a contributing factor, the agency
   demonstrates by clear and convincing evidence
6                                            ADAM   v. ARMY



    that it would have taken the same personnel ac-
    tion in the absence of such disclosure.
The MSPB held that for Mr. Adam’s 2009 disclosures the
timing requirement of part (e)(1)(B) was met, but that the
knowledge requirement of part (e)(1)(A) was not met. Mr.
Adam invokes the “knowledge/timing test” provided by 5
U.S.C. § 1221(e)(1), whereby the nature of the disclosure
as a contributing factor may be demonstrated through
circumstantial evidence. Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). Mr.
Adam argues that the nature and seriousness of his
protected disclosures support an inference that the selec-
tion process had been influenced. According to Mr. Adam,
the MSPB erred in weighing the evidence, asserting that
the agency failed to submit affidavits from two of the
three members of the selection panel.
    The MSPB evaluated the record evidence relating to
the non-selection. The MSPB found only an unsupported
allegation from Mr. Adam that information of his disclo-
sures was provided to the selection panel. The MSPB
relied on an affidavit from a member of the selection
panel that the panel received no information regarding
the disclosures. The MSPB rejected Mr. Adam’s allega-
tion that the panel was influenced by persons with
knowledge of the disclosures, based on the panel mem-
ber’s affidavit testimony to the contrary. The MSPB
referred to the evidence that the selection panel made its
decisions based solely on performance and disciplinary
records, noting that the three non-selected candidates,
including Mr. Adam, had records of past disciplinary
action.
    On the totality of the record before the MSPB, sub-
stantial evidence supported the Board’s finding that Mr.
Adam had not shown by a preponderance of evidence that
the selection committee knew of the asserted whistleblow-
ing or was influenced by those with knowledge, in making
ADAM   v. ARMY                                          7



its decision of non-selection. The MSPB’s decision com-
ports with the statute, and is affirmed.
                            B
    The MSPB also dismissed Mr. Adam’s IRA appeal
concerning the 2010 disclosures of nepotism, bribery, and
disparaging remarks to team members—allegations in
which eight instructors are reported to have joined. In
the first appeal, the Board found that Mr. Adam failed to
make a nonfrivolous allegation that the alleged conduct
constituted the type of conduct, such as “gross misman-
agement, fraud, waste, or abuse” to which the whistle-
blower statute is directed. We discern no basis for
disturbing the decision of the MSPB on the record pre-
sented. We affirm the dismissal of Mr. Adam’s IRA
appeal related to the 2010 disclosures.
                      CONCLUSION
    Substantial evidence supports the Board’s finding
that Mr. Adam’s disclosures were not a contributing factor
to his non-selection. The decision of the Merit Systems
Protection Board is affirmed.
   Each party shall bear its costs.
                      AFFIRMED
