NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KEVIN J. REARDON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2009-3268
__________________________
Petition for review of the Merit Systems Protection
Board in DC1221090361-W-1.
___________________________
Decided: June 21, 2010
___________________________
ADAM AUGUSTINE CARTER, The Employment Law
Group, P.C., of Washington, DC, argued for petitioner.
With him on the brief was R. SCOTT OSWALD.
MATTHEW H. SOLOMSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. On the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, TODD M.
REARDON v. DHS 2
HUGHES, Deputy Director, and LAUREN A. WEEMAN, Trial
Attorney.
__________________________
Before BRYSON, DYK, and PROST, Circuit Judges.
PER CURIAM.
Kevin J. Reardon (“Reardon”) petitions for review of a
final order of the Merit Systems Protection Board
(“MSPB” or “Board”) dismissing the appeal of his removal.
Reardon v. Dep’t of Homeland Sec., No. DC-1221-09-0361-
W-1 (M.S.P.B. Aug. 5, 2009). The Board found that
Reardon failed to make a nonfrivolous allegation that he
engaged in a protected activity under the Whistleblower
Protection Act (“WPA”). See Reardon v. Dep’t of Home-
land Sec., No. DC-1221-09-0361-W-1, slip op. at 8
(M.S.P.B. Apr. 15, 2009) (“Initial Decision”). We affirm.
BACKGROUND
On October 25, 2008, Reardon’s appointment to the
Deputy Assistant Secretary position was terminated
within the one-year probationary period for performance-
based reasons. Because he was removed during his
probationary period, Reardon could not appeal his re-
moval to the MSPB. See 5 C.F.R. § 359.407; see also id.
§ 359.402. On November 6, 2008, Reardon filed a com-
plaint with the Office of Special Counsel (“OSC”) alleging
that he was terminated from his position in reprisal for
making protected disclosures under the WPA. Reardon
specifically identified two disclosures: (1) an October 3,
2008, disclosure to his supervisor, Robert Stephan
(“Stephan”), that the Under Secretary of the National
Protection and Programs Directorate (“NPPD”), Robert
Jamison (“Jamison”), was allegedly interfering with and
attempting to influence the performance management
3 REARDON v. DHS
process by requesting preliminary performance ratings
from first-line supervisors, and (2) a late-June/early-July
2008 disclosure to Jamison reporting the “irrational and
hostile work environment” allegedly created by Stephan
by ordering Reardon to stay away from certain matters
and limit attendance to only certain meetings, see Initial
Decision, slip op. at 7, in order to obstruct Reardon’s right
to compete for employment and coerce him to resign in
contravention of 5 U.S.C. § 2302(b)(4) and (5). OSC
terminated its investigation on January 6, 2009, and
informed Reardon of his right to seek corrective action
from the MSPB.
On March 5, 2009, Reardon filed his individual right
of action (“IRA”) appeal with the MSPB. On March 11,
2009, the Administrative Judge (“AJ”) issued an order to
show cause, requiring Reardon to provide evidence and
argument to demonstrate that his appeal was within the
Board’s jurisdiction. “[T]he Board has jurisdiction over an
IRA appeal if the appellant has exhausted his administra-
tive remedies before the OSC and makes ‘non-frivolous
allegations’ that (1) he engaged in whistleblowing activity
by making a protected disclosure under 5 U.S.C.
§ 2302(b)(8), and (2) the disclosure was a contributing
factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a).” Yunus
v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001). A protected disclosure under 5 U.S.C. § 2302(b)(8)
is “any disclosure of information by an employee . . .
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)(A).
REARDON v. DHS 4
In an April 15, 2009, initial decision, the AJ held that
Reardon failed to make a nonfrivolous allegation that he
had engaged in protected whistleblowing activity. With
regard to Reardon’s October 3, 2008, disclosure, the AJ
found that none of the statutes or regulations cited by
Reardon precluded Jamison from requesting advance
information about employee performance reviews. With
regard to Reardon’s June/July 2008 disclosure, the AJ
found that the disclosure merely reflected a policy dis-
agreement about Reardon’s duties that was “debatable
among reasonable people,” and therefore was not a pro-
tected disclosure. Initial Decision, slip op. at 7.
Reardon filed a petition for review with the full
Board, which was denied, making the initial decision of
the AJ the final decision of the Board. Reardon timely
appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9). Following oral argument, we issued a letter
order requesting the government to submit for considera-
tion “the governing regulations or manual specifying the
procedures under which employee performance evalua-
tions at the National Protection and Programs Director-
ate of the Department of Homeland Security were
conducted during the October 2008 appraisal period.”
Reardon v. Dep’t of Homeland Sec., No. 2009-3268 (Fed.
Cir. May 10, 2010) (letter order). On June 16, 2010,
Reardon filed a response to the government’s submission.
DISCUSSION
Whether the Board has jurisdiction to adjudicate an
appeal is a question of law, which we review de novo.
Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008).
5 REARDON v. DHS
Reardon argues that the Board erred in finding that
he failed to make a nonfrivolous allegation that he en-
gaged in protected whistleblowing. “The standard for
determining whether non-frivolous disclosures exist ‘is
analogous to that for summary judgment.’ ‘[T]he peti-
tioner must show the existence of a material fact issue . . .
to support Board jurisdiction. Non-frivolous allegations
cannot be supported by unsubstantiated speculation in a
pleading submitted by petitioner.’” Kahn v. Dep’t of
Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (citation
omitted) (quoting Dorrall v. Dep’t of the Army, 301 F.3d
1375, 1380 (Fed. Cir. 2002), overruled on other grounds by
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir.
2006)).
We conclude that the Board did not err in dismissing
Reardon’s IRA appeal for lack of jurisdiction. There was
no evidence that the disclosures asserted by Reardon
could reasonably be thought to evidence a violation of law,
rule, or regulation; gross mismanagement; or abuse of
authority. With regard to the October 3, 2008, disclosure,
none of the statutes or regulations governing performance
evaluations contains any provision that would have
precluded Jamison from requesting preliminary perform-
ance reviews from the supervisors reporting to him. Nor
do the Department of Homeland Security Management
Directives governing employee performance reviews
contain any such prohibition. See Dep’t of Homeland Sec.,
MD No. 3180, Senior Executive Service Performance
Management (n.d.); Dep’t of Homeland Sec., MD No.
3181, Performance Management (2006). Jamison was
thus not precluded from requesting preliminary perform-
ance reviews. In his response, Reardon speculates that
there may be other governing directives that the govern-
ment did not supply to this court, and that discovery
should be allowed. But in order to establish jurisdiction,
REARDON v. DHS 6
Reardon was obligated to provide evidence to the Board
that he had sufficient information to form a reasonable
belief that a law, rule, or regulation had been violated, or
that gross management or an abuse of authority had
occurred. That he has not done. Any allegation that
Jamison was attempting to improperly interfere or influ-
ence the performance review process by requesting pre-
liminary performance reviews can only be described as
unsubstantiated speculation.
Also, Reardon’s June/July 2008 disclosure cannot rea-
sonably be viewed as anything more than a disagreement
with Stephan over legitimate managerial decisions such
as what matters to work on and what meetings to attend.
Finally, Reardon argues on appeal that he made a
third protected disclosure, also addressing Stephan’s
actions, on October 1, 2008, which the Board failed to
address. However, this disclosure was not properly raised
before either the OSC or the MSPB, and Reardon has
therefore waived this issue. See Bosley v. Merit Sys. Prot.
Bd., 162 F.3d 665, 668 (Fed. Cir. 1998).
For the aforementioned reasons, we affirm.
AFFIRMED
COSTS
No costs.