                      NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                       2008-3061

                                  RONALD A. DAVIS,

                                                          Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.


      Ronald A. Davis, of Baltimore, Maryland, pro se.

      Raymond W. Angelo, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.

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                           NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2008-3061

                                      RONALD A. DAVIS,

                                                    Petitioner,

                                               v.

                           MERIT SYSTEMS PROTECTION BOARD,

                                                    Respondent.


Petition for review of the Merit Systems Protection Board in PH1221070017-W-1.
                            __________________________

                               DECIDED: May 16, 2008
                               __________________________

Before DYK and PROST, Circuit Judges, and HOCHBERG, District Judge. ∗

PER CURIAM.

       Ronald A. Davis appeals a final decision of the Merit Systems Protection Board

(“Board”) dismissing his individual right of action (“IRA”) that alleged reprisal for

disclosures protected under the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C.

§ 2302(b)(8), as insufficient to establish board jurisdiction. See Davis v. Dep’t of Def.,

106 M.S.P.R. 560 (2007).          Because we agree that Mr. Davis has not established

jurisdiction, we affirm.

                                        BACKGROUND

       Mr. Davis is a teller with the Defense Finance and Accounting Service, Defense


       ∗
               Honorable Faith S. Hochberg, District Judge, United States District Court
for the District of New Jersey, sitting by designation.
Military Pay Office in Fort Meade, Maryland. On August 19, 2005, Mr. Davis filed a

complaint with the Office of Special Counsel (“OSC”) alleging that his supervisor

committed prohibited personnel practices including: (1) giving Mr. Davis a lower

performance rating and not selecting him for a promotion because Mr. Davis refused to

perform an illegal task, and (2) refusing to promote Mr. Davis in retaliation for Mr. Davis

filing a grievance concerning his performance rating. 1 After Mr. Davis appealed to the

Board, the administrative judge informed Mr. Davis that the Board lacks jurisdiction over

a direct appeal of these personnel practices but would have jurisdiction over such

personnel practices in the context of an IRA appeal containing a sufficient claim under

the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8). The Board

dismissed Mr. Davis’s appeal for lack of jurisdiction, Davis v. Dep’t of Def., 103

M.S.P.R. 516, 522-23 (2006), and, on March 6, 2006, Mr. Davis filed a new complaint

with OSC that incorporated the original August 19, 2005 complaint, added a claim that

he was denied a cash award, and specifically alleged reprisal for whistleblowing.

       After Mr. Davis filed an IRA appeal with the Board, the administrative judge

dismissed Mr. Davis’s appeal for lack of jurisdiction. Mr. Davis petitioned for review,

and the Board issued a final decision affirming the dismissal for lack of jurisdiction

based upon its own jurisdictional analysis. Davis v. Dep’t of Def., 106 M.S.P.R. 560,

561 (2007).   In evaluating whether it had jurisdiction, the Board assumed that Mr.

Davis’s complaints constituted disclosures protected by the WPA. Id. at 564. Then, the

Board compared the dates of the complained-about personnel actions to the first



       1
             According to the record, the August 19, 2005 complaint was the first
complaint or grievance actually filed by Mr. Davis.



2008-3061                                   2
disclosure by Mr. Davis (on August 19, 2005) and determined that “the personnel

actions complained about by the appellant predate his protected disclosures.” Id. at

565. Because “there is no way that the disclosures could have in any way contributed

to the personnel actions complained about by the appellant,” the Board concluded that

Mr. Davis failed to establish jurisdiction. Id. at 565-66. Mr. Davis timely appealed to this

court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       The Board’s jurisdiction is limited to those matters prescribed by the applicable

laws, rules, and regulations. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.

Cir. 2008).    The Board has jurisdiction over an IRA that alleges retaliation for

“whistleblowing” activities only when an employee exhausts administrative remedies

before OSC and makes a non-frivolous allegation that: (1) a “protected” disclosure was

made, as specified by 5 U.S.C. § 2302(b)(8), and (2) “the disclosure was a contributing

factor in the personnel action.” Meuwissen v. Dep’t of Interior, 234 F.3d 9, 12 (Fed. Cir.

2000). The appellant has the burden of establishing the Board’s jurisdiction. 5 C.F.R.

§ 1201.56(a)(2)(i). Whether the Board has jurisdiction is a question of law that this court

reviews without deference, but we are bound by the Board’s underlying factual findings

“unless those findings are not supported by substantial evidence.” Bolton v. Merit Sys.

Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).

       On appeal, Mr. Davis challenges the Board’s determination that it lacked

jurisdiction, presenting arguments directed to each prong of the jurisdictional test.

Regarding the first prong, the administrative judge found that Mr. Davis’s disclosures

were not “protected” under the WPA, but the Board modified this finding and assumed




2008-3061                                    3
(for the purposes of the decision) that Mr. Davis’s disclosures were, in fact, protected. 2

Davis, 106 M.S.P.R. at 564-65.       Because we also make this assumption (for the

purposes of appeal), we see no need to address Mr. Davis’s arguments aimed at

proving this point. Regarding the second prong, Mr. Davis provides two arguments to

contest the Board’s determination that the disclosure “could not have in any way

contributed to the personnel actions” raised by Mr. Davis because those personnel

actions “predate[d]” the disclosure. Id. at 565.

       First, Mr. Davis asserts that the Board incorrectly concluded that the personnel

actions predated the disclosure. The parties appear to agree that the disclosure is the

first complaint that Mr. Davis filed with OSC on August 19, 2005, and Mr. Davis points to

three personnel actions: (1) a performance rating, (2) the denial of a promotion, and (3)

the denial of unspecified cash awards. With regard to the first and third personnel

actions, Mr. Davis fails to present any allegation or evidence to establish that either of

these personnel actions occurred after his August 19, 2005 disclosure. 3 With regard to

the promotion, the Board made a factual finding that “uncontradicted evidence”



       2
                Mr. Davis also alleges error in other aspects of the administrative judge’s
initial decision. That initial decision, however, was modified by the Board and we review
the Board’s final decision. Accordingly, we do not address Mr. Davis’s arguments
alleging error in the initial decision by the administrative judge.
       3
              With regard to the cash awards, Mr. Davis simply requested “any awards
which came due during this time period, more specifically during the period of June
2005 to August 2005 where I made payments to deceased soldiers next of kin for the
new benefits authorized during this time.” Most of this time period is clearly prior to Mr.
Davis’s August 19, 2005 disclosure, and, while the time period admittedly includes
twelve days following the disclosure, Mr. Davis fails to identify, describe, or otherwise
provide a non-frivolous allegation that he was denied any awards during that twelve-day
period. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993)
(“[S]ubstantive details establishing jurisdiction must be alleged in the complaint.”).



2008-3061                                    4
supported the administrative judge’s finding that Mr. Davis’s supervisor selected another

individual for the promotion at issue on August 10, 2005, which predated Mr. Davis’s

disclosure on August 19, 2005. Id. (identifying a document, signed and dated by the

supervisor on August 10, 2005, that contained a referral list on which the supervisor

indicated his selection for the promotion at issue). 4

       In an attempt to show error in the Board’s finding, Mr. Davis asserts that: (1) an

appellant need only allege that the personnel action occurred on a later date; (2) the

personnel action was “continuing” until the other individual was actually appointed to the

position (on October 31, 2005); and (3) the Board’s finding was flawed because it

denied Mr. Davis’s request for additional discovery regarding the selection date. Like

the Board, we reject these arguments.         First, “[n]on-frivolous allegations cannot be

supported by unsubstantia[ted] speculation in a pleading submitted by [a] petitioner” and

require support from “affidavits or other evidence.” Marcino v. U.S. Postal Serv., 344

F.3d 1199, 1204 (Fed. Cir. 2003). Second, we fail to see how the actual appointment

date undermines the fact that Mr. Davis was effectively denied the promotion on the

August 10th selection date.       Third, the Board’s decisions regarding discovery are

reviewed for abuse of discretion, Barrett v. Social Sec. Admin., 309 F.3d 781, 786 (Fed.

Cir. 2002), and we perceive no abuse of discretion in this case. In sum, none of Mr.

Davis’s arguments cause us to question the Board’s finding that the personnel action

occurred on August 10, 2005. See Bolton, 154 F.3d at 1316 (stating that this court is




       4
            The fact that the document indicates an effective date of October 31,
2005, does nothing to undermine the conclusion that the actual appointment took place
on August 10, 2005, prior to the alleged protected disclosure.


2008-3061                                     5
bound by the Board’s factual findings “unless those findings are not supported by

substantial evidence”).

       Mr. Davis also argues that even if the personnel actions did predate his August

19, 2005 complaint, he still satisfied the second prong because a “reasonable person”

could find the disclosure to be a contributing factor in the personnel action.        We,

however, agree with the Board that no reasonable person could conclude that a

disclosure was a contributing factor in a personnel action that has already occurred.

See Horton v. Dep’t of the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995) (holding that a

protected disclosure that occurred the day after the initiation of a proposed removal

could not have been a contributing factor in the proposed removal). Moreover, while

Mr. Davis attempts to establish that his supervisor considered Mr. Davis to be a

whistleblower prior to the personnel actions, the Board’s jurisdiction requires an

appellant to non-frivolously assert that his protected disclosure was a contributing factor

in the personnel action. Meuwissen, 234 F.3d at 12.

                                      CONCLUSION

       Accordingly, we agree with the Board’s conclusion that Mr. Davis failed to make

a non-frivolous allegation that the disclosure was a contributing factor in the personnel

actions, and we affirm the Board’s conclusion that it lacked jurisdiction.

                                          COSTS

       Each party shall bear its own costs.




2008-3061                                     6
