       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 JANICE R. SMETS,
                     Petitioner,

                           v.
     MERIT SYSTEMS PROTECTION BOARD,
                Respondent,

                         and
           DEPARTMENT OF THE NAVY,
                  Intervenor.
              __________________________

                      2011-3018
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF1221090607-W-1.
               __________________________

                Decided: May 26, 2011
              __________________________

   JANICE R. SMETS, Oak Park, California, pro se.

   JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC for respondent. Of counsel on the brief were JAMES M.
SMETS   v. MSPB                                        2


EISENMANN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.

    K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for intervenor. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDISON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
               __________________________

     Before LINN, PLAGER, and DYK, Circuit Judges.
PER CURIAM.

    This issue in this appeal from the Merit Systems Pro-
tection Board (“Board”) is whether the Board properly
dismissed the Petitioner’s individual right of action
(“IRA”) for lack of jurisdiction. Smets v. Dep’t of Navy,
No. SF-1221-09-0607-W-1 (M.S.P.B. Feb. 9, 2010) (“Initial
Decision”), (M.S.P.B. Sept. 9, 2010) (“Final Order”).
Because the Board properly concluded that none of
Ms. Smets’ disclosures amounted to a nonfrivolous allega-
tion of protected whistleblowing, we affirm.

                    I. BACKGROUND

    Ms. Janice Smets worked as a Contract Specialist
with the Air Force Space Command in Los Angeles,
California, until January 2008 when she was promoted to
a Supervisory Contract Specialist with the Naval Air
Warfare Center Division in Point Mugu, California. Like
many promotions, her appointment was subject to the
completion of a one-year probationary period. Following
the unsatisfactory completion of her probationary period,
Ms. Smets was reassigned back to her previous position
as a Contract Specialist on October 26, 2008.
3                                             SMETS   v. MSPB


    Then, on November 12, 2008, Ms. Smets filed a whis-
tleblower complaint with the Office of Special Counsel
(“OSC”) under 5 U.S.C. § 2302(b)(8), asserting that her
reassignment was in retaliation for three alleged disclo-
sures. Initial Decision at 2. The alleged disclosures
concerned (1) the disbursement of government funds; (2)
the streamlining process for task orders and the corre-
sponding compliance with acquisition processes; and (3)
the proper assignment of job functions following the
Department of Defense Base Realignment and Closure
(“BRAC”) process. Id. at 2-3. In correspondence dated
March 18, 2009, OSC notified Ms. Smets that it was
unable to conclude that her reports were protected under
5 U.S.C. § 2302(b)(8), thus its inquiry into her allegations
was terminated. The letter noted that she had a right to
seek corrective action from the Board. Id. at 3.

    On May 20, 2009, Ms. Smets filed an IRA with the
Board under 5 U.S.C. § 1221 asserting seven protected
disclosures.    The administrative judge found that
Ms. Smets’ communications did not qualify as protected
disclosures under the Whistleblower Protection Act
(“WPA”) and dismissed the IRA for failure to establish
jurisdiction. Id. at 7-13. The Board, in response to a
petition for review of the initial decision, explained its
agreement with the administrative judge’s decision and
denied Ms. Smets’ petition for review. Final Order at 2.
As modified by the Board, the initial decision of the
administrative judge became the decision of the Board.
Ms. Smets then timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1).
SMETS   v. MSPB                                          4


                     II. DISCUSSION

    Under 5 U.S.C. § 7703(c), our review of Board deci-
sions is limited. A final Board decision may be reversed
only if that decision is found to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. Farrell v. Dep’t of
Interior, 314 F.3d 584, 589 (Fed. Cir. 2002). The Board’s
dismissal of an appeal for lack of jurisdiction presents an
issue of law that we review without deference. Delalat v.
Dep’t of Air Force, 557 F.3d 1342, 1343 (Fed. Cir. 2009).
Ms. Smets, as appellant below, bears the burden of estab-
lishing jurisdiction by a preponderance of the evidence. 5
C.F.R. § 1201.56(a)(2); Delalat, 557 F.3d at 1343.

     The Board relied upon our decisions in Huffman v. Of-
fice of Pers. Mgmt., 263 F.3d 1341 (Fed. Cir. 2001) and
Horton v. Dep’t of Navy, 66 F.3d 279 (Fed. Cir. 1995) to
dismiss the first alleged disclosure because the communi-
cation was made in the normal course of performing her
job duties. The Board held the second disclosure not
protected because Ms. Smets made it to the alleged
wrongdoer. Final Order at 2 (relying upon Ingram v.
Dep’t of Army, 114 M.S.P.R. 43, ¶ 14 (2010)). The Board
dismissed Ms. Smets’ third alleged disclosure because she
failed to establish that she had a reasonable belief that
the reported actions constituted wrongdoing. Final Order
at 2.

    When faced with a WPA complaint filed under 5
U.S.C. § 2302(b)(8), “[t]he Board must look for evidence
that it was reasonable [for the petitioner] to believe that
the disclosures revealed misbehavior described by [the
statute].” Lachance v. White, 174 F.3d 1378, 1380 (Fed.
5                                            SMETS   v. MSPB


Cir. 1999). Even if this standard is met, however, not all
disclosures are protected. “Criticism directed to the
wrongdoers themselves is not normally viewable as
whistleblowing.” Horton, 66 F.3d at 282. “When an
employee reports or states that there has been miscon-
duct by a wrongdoer to the wrongdoer, the employee is
not making a ‘disclosure’ of misconduct. If the misconduct
occurred, the wrongdoer necessarily knew of the conduct
already because he is the one that engaged in the miscon-
duct.” Huffman, 263 F.3d at 1350. Further, “reporting in
connection with assigned normal duties is not a protected
disclosure covered by the [WPA].” Id. (citing Willis v.
Dep’t of Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998)).

    Because there is nothing in the administrative record
establishing that the Board erred in determining that
Ms. Smets alleged disclosures were directed at the alleged
wrongdoers, part of her normal job duties, or failed to
include a reasonable belief that the actions constituted
wrongdoing, we affirm the Board’s dismissal of Ms. Smets
appeal for lack of jurisdiction. 1



    1   Ms. Smets complains that the Board did not ad-
dress the additional disclosures in her appeal to the
Board but that were not part of her OSC complaint.
Because these alleged disclosures were not part of the
OSC complaint and therefore she had failed to exhaust
her administrative remedies, the Board’s decision prop-
erly did not consider those additional disclosures. See,
e.g., Kahn v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed.
Cir. 2008) (“[T]he Board has jurisdiction over an IRA
appeal if the appellant has exhausted his or her adminis-
trative remedies before the OSC and makes non-frivolous
allegations [of whistleblowing activity].”). Thus, because
the Board made no determination regarding the addi-
tional disclosures, they are not properly before this court
on appeal. Oshiver v. Office of Pers. Mgmt., 896 F.2d 540,
SMETS   v. MSPB                           6


   Each party shall bear its own costs.

                        AFFIRMED




542 (Fed. Cir. 1990).
