NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SUSAN M. BARELA,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3048
__________________________
Petition for review of the Merit Systems Protection
Board in case No. DC1221090641-W-1.
___________________________
Decided: July 13, 2010
___________________________
SUSAN M. BARELA, of Fairfax, Virginia, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMAN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
BARELA v. MSPB 2
PER CURIAM.
DECISION
Susan M. Barela challenges the decision of the Merit
Systems Protection Board dismissing her Individual Right
of Action (“IRA”) appeal. We affirm.
BACKGROUND
On June 18, 2009, Ms. Barela filed an IRA appeal un-
der 5 U.S.C. § 1221 and requested relief under the Whis-
tleblower Protection Act (“WPA”), 5 U.S.C. §§ 1221(e),
2302(b)(8). In her appeal, Ms. Barela alleged that the
Department of Defense took a personnel action against
her in June 1991. Ms. Barela also stated that she submit-
ted a request to the Office of Special Counsel (“OSC”) on
June 15, 2009, but that as of June 18, 2009, she had not
received written notice of her right to appeal. As to her
alleged whistleblowing disclosures, Ms. Barela appears to
claim that she made disclosures with respect to (1) alleg-
edly inappropriate action taken by an administrative
judge during a prior appeal, as found in the record of that
case, and (2) allegedly inappropriate action taken by
various military members, employees, and contractors as
described in “past submissions, pending submissions,
[and] future submissions” for the time period from 1991
through the year 2050. In her IRA appeal, Ms. Barela
also stated that, on June 15, 2009, she requested that the
Board stay the personnel action underlying her claim.
When asked to explain why a stay should be granted, Ms.
Barela stated, “See Previous Submissions/Whistleblower
Appeal/Board Record/Pending Submissions etc., from
1991-2050.”
3 BARELA v. MSPB
On July 8, 2009, the administrative judge who was
assigned to the case dismissed Ms. Barela’s appeal for
lack of jurisdiction. The administrative judge first noted
that Ms. Barela failed to respond to a “show cause” order
directing her to file evidence and argument to establish
that the Board had jurisdiction over her IRA appeal. The
administrative judge then held that the Board lacked
jurisdiction over Ms. Barela’s appeal on the following
grounds: (1) Ms. Barela “failed to exhaust her remedies
before the OSC”; (2) she “failed to make a nonfrivolous
allegation that she made a protected whistleblowing
disclosure”; and (3) she “failed to make a nonfrivolous
allegation that a protected whistleblowing disclosure was
a contributing factor in any personnel action covered by
the WPA.” The administrative judge denied her request
for a stay of the personnel action underlying her whistle-
blower claim for similar reasons. The full Board denied
Ms. Barela’s petition for review, and Ms. Barela now
petitions for review by this court.
DISCUSSION
Based on the record and on Ms. Barela’s informal
brief, it appears that Ms. Barela seeks to use this IRA
appeal to review decisions made in prior cases that she
has brought. However, 5 U.S.C. § 1221 does not authorize
an appellant to challenge prior decisions that have be-
come final. Because the Board has jurisdiction only
where jurisdiction is specifically granted by statute or
regulation, see Garcia v. Dep’t of Homeland Sec., 437 F.3d
1322, 1327 (Fed. Cir. 2006) (en banc), the Board correctly
dismissed Ms. Barela’s IRA appeal.
To the extent that Ms. Barela seeks corrective action
in response to a violation of the WPA, the Board properly
determined that it lacked jurisdiction over Ms. Barela’s
BARELA v. MSPB 4
appeal. First, the Board did not err in ruling that Ms.
Barela failed to show that she exhausted her remedies
before the OSC, because Ms. Barela produced no evidence
or argument on that issue. See Pasley v. Dep’t of the
Treasury, 109 M.S.P.R. 105, 112 (2008) (“The appellant
bears the burden of showing that he exhausted his reme-
dies before [the] OSC.”). In particular, 5 U.S.C. §
1214(a)(3) permits an IRA appellant to file an IRA appeal
with the Board in two situations: (1) within 60 days after
receiving notice from the OSC that it has completed its
investigation, or (2) after 120 days from the date that the
IRA appellant sought corrective action from the OSC if
the OSC has not informed the appellant that it will seek
corrective action on the appellant’s behalf. Ms. Barela
represented that she had not received notice that the OSC
had completed its investigation and that she filed her IRA
appeal three days after submitting her complaint to the
OSC. Because it appears that Ms. Barela did not satisfy
either requirement of section 1214(a)(3), the Board was
correct to dismiss her appeal for failure to exhaust her
administrative remedies.
Second, the Board correctly concluded that Ms. Barela
failed to make a nonfrivolous allegation that she made a
protected disclosure under 5 U.S.C. § 2302(b)(8). See
Kahn v. Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir.
2008). The statements in her IRA appeal concerning her
alleged disclosures are inadequate to establish jurisdic-
tion because they are vague, conclusory, and unsupported
by any evidentiary allegations. See McDonnell v. Dep’t of
Agric., 108 M.S.P.R. 443, 447 (2008).
Third, the Board properly held that Ms. Barela failed
to make a nonfrivolous allegation that a protected disclo-
sure was a contributing factor in the agency’s decision to
take a personnel action against her. See Kahn, 528 F.3d
5 BARELA v. MSPB
at 1341. Even at this juncture, it is unclear how Ms.
Barela regards any protected disclosure that she may
have made to be related to some qualifying personnel
action taken against her by the agency.
Because Ms. Barela failed, on multiple grounds, to es-
tablish the Board’s jurisdiction over her IRA appeal, we
uphold the Board’s decision.
AFFIRMED