       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              MICHAEL N. OHNSTAD,
                   Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2015-3220
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-315H-15-0101-I-1.
                ______________________

               Decided: February 3, 2016
                ______________________

   MICHAEL N. OHNSTAD, Barstow, CA, pro se.

     MICHAEL ANTON CARNEY, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
                 ______________________

  Before PROST, Chief Judge, MAYER and REYNA, Circuit
                        Judges.
2                                           OHNSTAD   v. MSPB



PER CURIAM.
    Michael Ohnstad appeals the final decision of the
Merit Systems Protection Board (“Board”), dismissing his
petition for review for lack of jurisdiction. For the reasons
discussed below, we affirm.
                       BACKGROUND
    On October 21, 2013, Mr. Ohnstad was appointed to a
term appointment as a maintenance worker at the Marine
Corps Logistics Base in Barstow, California. The ap-
pointment was subject to the satisfactory completion of a
one-year probationary period.
    Mr. Ohnstad’s employment was initially uneventful.
On February 11, 2014, Mr. Ohnstad was provided with a
performance review covering the period from the start of
his employment through December 31, 2014. According
to the review, Mr. Ohnstad’s performance was acceptable
in all respects. On May 4, 2014, Mr. Ohnstad was issued
a “Notification of Personnel Action” that also stated that
his work was acceptable. Mr. Ohnstad received no com-
plaints about either his performance or behavior during
this time.
    Around February 2014, Mr. Ohnstad began having
repeated confrontations with one coworker. After the
confrontations began, Mr. Ohnstad complained to his
supervisor multiple times. The complaints culminated in
Mr. Ohnstad filing a Harassment/Discrimination Adviso-
ry Report on August 28, 2014 which was witnessed by his
supervisor.
     According to Mr. Ohnstad, his complaints were ig-
nored and no action was taken in response to the report.
However, on September 10, 2014, Mr. Ohnstad was
counseled by his supervisor that he had been overly
critical of his coworkers’ performance and had been inap-
propriately complaining to other coworkers. Mr. Ohnstad
OHNSTAD   v. MSPB                                         3



was informed that any complaints should be to his super-
visor, and not to other employees.
    On October 14, 2014, one week before the end of his
probationary period, Mr. Ohnstad was provided written
notice that his employment would be terminated. The
notice listed a number of issues with his performance and
inappropriate behavior, the earliest occurring on March
30, 2014, as grounds for dismissal.
     Mr. Ohnstad subsequently filed an Individual Right
of Action (“IRA”) complaint with the U.S. Office of Special
Counsel (“OSC”) Disclosure Unit in which he detailed
multiple instances of mismanagement and poor perfor-
mance by his coworkers that he witnessed during the
course of his employment. In response, the OSC, in a
letter dated October 16, 2014, stated that he had alleged
“wrongful termination, retaliation, unfair hiring practices,
and a hostile work environment . . . [which] are consid-
ered prohibited personnel practices, which are reviewed
by OSC’s Complaints Examining Unit.” Resp’t’s App. 33.
The OSC further informed Mr. Ohnstad that the Disclo-
sure Unit would take no additional action regarding his
allegations.
    The next month, Mr. Ohnstad petitioned the Board
for review of the termination of his employment. In his
petition, Mr. Ohnstad requested review of the termination
and also asserted violations of the Whistleblower Protec-
tion Act (“WPA”), the Uniformed Services Employment
and Reemployment Rights Act (“USERRA”), and the
Veterans Employment Opportunities Act (“VEOA”). Mr.
Ohnstad subsequently withdrew his USERRA and VEOA
claims.
    While Mr. Ohnstad’s petition was pending, the OSC
Complaints Examining Unit sent him a letter closing his
complaint. In the letter, the OSC explained that, because
Mr. Ohnstad’s employment was terminated during the
probationary period, its review was limited to whether the
4                                         OHNSTAD   v. MSPB



action was accomplished according to the proper proce-
dure, and whether the action was undertaken for a reason
that would constitute a prohibited personnel practice.
The OSC also noted that, other than his own belief, Mr.
Ohnstad had not presented any additional information to
suggest that his employment had been wrongfully termi-
nated.
    In an initial decision, the Board found that it lacked
jurisdiction to review the termination because Mr. Ohn-
stad was not an employee as defined by 5 U.S.C.
§ 7511(a)(1). The Board also found that it did not have
jurisdiction over his WPA complaint because he had not
exhausted his OSC remedy by raising any purportedly
protected disclosures with the OSC.
     Mr. Ohnstad petitioned for review of the Board’s ini-
tial decision. After review, the Board affirmed the initial
decision on July 24, 2015. This appeal followed.
                       DISCUSSION
    We review the Board’s determinations concerning ju-
risdiction de novo, and review any underlying factual
findings for substantial evidence. Parrott v. Merit Sys.
Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
                            A
     Appeals of adverse employment actions to the Board
are governed by statute. Under 5 U.S.C. § 7513(d), an
employee against whom an action is taken may appeal the
action to the Board. For purposes of such an appeal, an
“employee” is defined as an individual working in the
competitive service “who is not serving a probationary or
trial period under an initial appointment.” 5 U.S.C.
§ 7511(a)(1)(A)(i). Thus, a person who is working during a
probationary period is not considered to be an “employee”
under this section.
OHNSTAD   v. MSPB                                         5



    This limitation does not mean that a probationer has
no rights of appeal to the Board, but those rights are
limited. During the probationary period, an agency may
terminate a probationer based on their “work perfor-
mance or conduct” by providing written notification that
“as a minimum, consist[s] of the agency’s conclusions as
the inadequacies of [their] performance or conduct.” 5
C.F.R. § 315.804(a). A probationer has a right to appeal
such a termination only when the termination “was based
on partisan political reasons or marital status.” 5 C.F.R.
§ 315.806.
     Here, Mr. Ohnstad does not dispute that his employ-
ment was terminated during his one-year probationary
period. Consequently, Mr. Ohnstad was not an “employ-
ee” for purposes of § 7513(d).
     Because Mr. Ohnstad was not an employee as defined
by 5 U.S.C. § 7511(a)(1)(A), the Board would have juris-
diction over his appeal only if he alleged that his termina-
tion was based on partisan political reasons or his marital
status. In his submissions, Mr. Ohnstad asserts that the
termination was in retaliation for his complaints about a
coworker’s performance, and not politically motivated or
based on his marital status.
     Mr. Ohnstad argues that he should have been provid-
ed with additional process under 5 C.F.R. § 315.805,
which requires advance notice of a proposed adverse
action. Section 315.805 relates to terminations “based in
whole or in part on conditions arising before [a probation-
er’s] appointment” and not for terminations based on
events taking place after an appointment. Thus, this
regulation is inapplicable to Mr. Ohnstad’s case.
    Therefore, Mr. Ohnstad did not have a right of appeal
to the Board under 5 U.S.C. § 7513(d) or 5 C.F.R.
§ 315.806.
6                                         OHNSTAD   v. MSPB



                            B
    Mr. Ohnstad has also raised a violation of the WPA as
a basis for appeal before the Board. Unlike the general
right of appeal, all employees, regardless of probationary
status, are protected by the WPA. See 5 U.S.C. §§ 1221,
2105; Horton v. Dep’t of the Navy, 66 F.3d 279, 282 (Fed.
Cir. 1995). As we have stated:
    To maintain an IRA under the WPA, a petitioner
    must first establish Board jurisdiction by making
    non-frivolous allegations that: (1) the petitioner
    engaged in a whistleblowing activity by making a
    protected disclosure under 5 U.S.C. § 2302(b)(8);
    and (2) based on the protected disclosure, the
    agency took or failed to take a personnel action as
    defined by 5 U.S.C. § 2302(a).
Willis v. Dep’t of Agric., 141 F.3d 1139, 1142 (Fed. Cir.
1998). In addition, a petitioner must show that adminis-
trative remedies, including those available through the
OSC, have been exhausted. Id.
     In his complaint to the OSC, Mr. Ohnstad provided a
list of complaints against his former coworkers and exam-
ples of what he considered to be poor management and
poor performance. Mr. Ohnstad did not mention his
complaints to his supervisor, or the Harass-
ment/Discrimination Advisory Report he had filed. The
OSC referred Mr. Ohnstad’s complaints to the Complaints
Examining Unit after it determined that Mr. Ohnstad’s
complaint concerned prohibited personnel practices, and
not protected disclosures under the WPA.
    Mr. Ohnstad also asserts that since November 2014,
he sent letters to multiple government agencies detailing
improper actions by his coworkers and supervisors.
However, because Mr. Ohnstad sent these additional
disclosures after his termination, they cannot form the
OHNSTAD   v. MSPB                                       7



basis of a WPA claim. See id. In addition, Mr. Ohnstad
never brought these disclosures before the OSC.
    Because none of the disclosures Mr. Ohnstad alleges
as bases for his WPA claim were brought before the OSC,
Mr. Ohnstad did not exhaust his remedies through the
OSC.
    Therefore, the Board did not have jurisdiction to re-
view Mr. Ohnstad’s WPA complaint.
                      CONCLUSION
    For the foregoing reasons, we affirm the Board’s deci-
sion and deny Mr. Ohnstad’s request for remedies.
                      AFFIRMED
                          COSTS
    Each party shall bear their own costs.
