               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
                                       06-3252


                              JOSEPH D. FREEHILL,

                                                          Petitioner,

                                          v.

                           DEPARTMENT OF JUSTICE,

                                                          Respondent.

                       ______________________________

                           DECIDED: November 9, 2006
                       ______________________________



Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and DYK,
Circuit Judge.

PER CURIAM.

       The petitioner, Joseph D. Freehill, challenges the Merit Systems

Protection Board (the “Board”)’s dismissal, for lack of jurisdiction, of his claim that

his suspension resulted from his alleged whistleblowing, in violation of the

Whistleblower Protection Act (“Whistleblower Act”), Pub. L. No. 101-12, 103 Stat.

16 (1989) (codified in scattered sections of 5 U.S.C.).        Because the Board’s

decision was neither arbitrary nor capricious and was supported by substantial

evidence, we affirm.
                                          I

       Freehill was a corrections officer with the Federal Bureau of Prisons (the

“Bureau”).   Freehill’s alleged whistleblowing occurred in connection with a

proposed suspension of Freehill in July 2003, for a sick leave incident. Following

an investigation, however, the proceeding was terminated and no suspension

was imposed. Freehill then wrote a letter to a correctional services administrator

alleging that an affidavit executed during the investigation had been altered, and

that this alteration was a “forgery.” His claim was based on the fact that the jurat

on the affidavit was dated May 7, 2003, whereas he believed, after speaking with

the affiant, that the affidavit had been made sometime after May 8, 2003.

       In November 2004, Freehill was suspended for 14 days for conduct

unrelated to the 2003 investigation.     The Board dismissed his appeal of this

suspension for lack of jurisdiction; that action is not here challenged.

       Freehill contends that his allegation of forgery led to his 2004 suspension.

When the Office of Special Counsel denied his whistleblower claim, he sought

corrective action from the Board. After denying Freehill’s request for a hearing,

the Board’s administrative judge, in his initial decision, which became final when

the Board denied review, held that Freehill had failed to show that he made a

protected disclosure as defined by the Whistleblower Act, and dismissed his

appeal.

                                          II

       Under 5 U.S.C § 7703(c), we may reverse a Board decision only if it is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with




06-3252                                   2
law; obtained without procedures required by law, rule, or regulation having been

followed; or unsupported by substantial evidence.

         The Whistleblower Act authorizes federal employee to seek redress from

the Board if a personnel action has been taken against them in retaliation for

certain whistleblowing activities. 5 U.S.C. § 1221(a) (2000). The Act protects

only specified disclosures made by federal employees, including those which the

employee

         reasonably believes evidences--
         (i) a violation of any law, rule, 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) (2000).          To determine if an employee’s belief is

reasonable, the Board must decide whether “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 [a violation of law]” Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir.

1999).     “An employee is entitled to a hearing if he presents a nonfrivolous

allegation that the Board has jurisdiction over his appeal.” Yunus v. Dep’t of

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

         Here, we view the administrative judge’s opinion as concluding that there

was a failure to make a nonfrivolous allegation. The administrative judge found

that, of all the possible reasons why Freehill may have thought the date on the

affidavit was incorrect, “the crime of forgery is the least likely” and that “[a]t best,

the appellant disclosed that an affiant believed that the date of his affidavit was




06-3252                                    3
incorrect.” Freehill v. Dep’t of Justice, No. AT-1221-05-0776-W-1, 5 (M.S.P.B.

Oct. 18, 2005). Furthermore, the administrative judge found that there was no

evidence that the affidavit was altered with intent to commit forgery or any

“indication that the appellant ever bothered to verify the facts by asking the

notary about the date discrepancy, as in [his] view, any reasonable, prudent

person would do before making a ‘disclosure.’” Id. at 5-6. There is nothing on

the face of the affidavit to suggest that the date was altered in any way. The

administrative judge held the Board lacked jurisdiction because Freehill did not

have a reasonable belief that a crime had been committed and therefore did not

make a protected disclosure.        We agree that Freehill failed to make a

nonfrivolous allegation that would have entitled him to a hearing.

                                  CONCLUSION

      The decision of the Board dismissing Freehill’s whistleblower claim is

affirmed.




06-3252                                  4
