NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3351
MICHAEL J. RILEY, SR.,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Michael J. Riley, Sr., of New Orleans, Louisiana, pro se.
William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3351
MICHAEL J. RILEY, SR.,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Petition for review of the Merit Systems Protection Board in
DA1221080196-W-1.
____________________________
DECIDED: March 6, 2009
____________________________
Before LOURIE, ARCHER, and LINN, Circuit Judges.
PER CURIAM.
DECISION
Michael J. Riley appeals from the final decision of the Merit Systems Protection
Board (the “Board”) dismissing his appeal for lack of jurisdiction. Riley v. Dep’t of
Homeland Sec., DA-1221-08-0196-W-1 (M.S.P.B. May 21, 2008). Because Riley has
not demonstrated that the Board’s decision was an abuse of discretion, contrary to law,
or otherwise reversible, we affirm.
BACKGROUND
Beginning on January 24, 2006, Riley received a series of temporary excepted
service appointments to the position of Disaster Assistance Employee (“DAE”), Office of
Equal Rights, with the Federal Emergency Management Agency (“the Agency”) in New
Orleans, Louisiana. The last of his appointments was a temporary three-year excepted
service appointment to the position of Equal Rights Officer on April 1, 2007, not to
exceed March 27, 2010.
On August 1, 2007, Riley was notified that he was being terminated immediately
because of alleged unauthorized charges on his government-issued travel charge card
totaling over $7000. On or about September 16, 2007, Riley filed a Complaint of
Possible Prohibited Personnel Practice or Other Prohibited Activity with the Office of
Special Counsel (“OSC”). He reported that he had been the subject of reprisal for
“disagreement with the Deputy Manager of the Equal Rights Cadre,” primarily regarding
his assignments, and for complaining about inadequate supervision. He characterized
his dismissal for alleged unauthorized travel charge card usage as a pretext. On
December 19, 2007, Riley wrote a letter to the OSC stating that he “worked very hard to
ensure the rights of victims [of the Hurricane Katrina disaster] and employees, while
advising management of the rights and responsibilities, as the local-hire Equal Rights
Officer.” Riley again indicated that he believed “that the credit card use was a pretext
for discharging him” and said he was fired for complaints and disagreements with
managers “who did not want to follow [Equal Employment Opportunity] rules.”
On December 20, 2007, the OSC advised Riley that it was concluding its inquiry
into his allegations and that he had the right to seek corrective action from the Board.
Riley appealed to the Board on January 22, 2008.
In his appeal, Riley alleged that between June 22, 2007, and July 31, 2007, he
made seven disclosures via e-mail. The seven e-mails, which he attached to his Board
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appeal, dealt primarily with complaints to and about his manager regarding the location
of assignments and inability to attend a training session. For example, Riley
characterized one e-mail he wrote to his manager as indicating that he “didn’t complain
when 1) force[d] to submit to DAE Evaluation not required of other local hire[s] at [the]
Katrina disaster; 2) sent without notice to Harhan[,] [LA] disaster without notice and
personal cost of $1000 to complete assignment; 3) without notice deployed to
Greensburg, KS disaster and stopped [en] route without reimbursement; 4) refusal to
all[ow] me to attend the mandatory [Equal Rights Officer] Update training.” Riley
asserted that because of his alleged whistleblowing, he was subjected to the following
personnel actions: 1) not being allowed to attend training mandatory for his position; 2)
being advised of problems with his travel charge card usage; 3) termination of his travel
charge card; and 4) termination of his appointment for unauthorized use of the travel
charge card.
The administrative judge (“AJ”) assigned to his case advised Riley twice of what
was required to establish the Board’s jurisdiction over the matter as an individual right of
action (“IRA”) appeal, viz., that he had to identify with specificity each of his alleged
whistleblower disclosures, every personnel action he claimed was or was not taken in
retaliation for his whistleblower disclosures, and how each identified disclosure was a
contributing factor in the Agency’s decision to take or fail to take each of the identified
personnel actions. In response, Riley identified some of the seven e-mails that he had
provided with his appeal as his alleged protected disclosures and indicated that several
personnel actions were taken against him.
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On May 21, 2008, the AJ dismissed Riley’s IRA appeal as failing to make
nonfrivolous allegations of fact that, if proven, could show that he made any protected
disclosure. The AJ found that Riley failed to raise facts that showed that any of his e-
mail messages evidenced a violation of law, rule, or regulation that the Whistleblower
Protection Act (“WPA”) intended to encourage and protect. Instead, the AJ stated that
the e-mails were merely complaints about decisions that Riley’s manager made
regarding his training, assignments, and treatment. The AJ also found that the e-mail
messages did not allege facts that rose to the level of an abuse of authority.
Riley filed a petition for review of the AJ’s initial decision. On August 21, 2008,
the Board affirmed and thus rendered the AJ’s initial decision final. Riley timely
appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2006). This court reviews whether the board
has jurisdiction over an appeal de novo. Torain v. U.S. Postal Serv., 83 F.3d 1420,
1422 (Fed. Cir. 1996). Riley lacked appeal rights because he was a temporary
excepted employee. However, the Board “has jurisdiction over an IRA appeal if an
appellant has exhausted his administrative remedies before the OSC and makes
‘nonfrivolous allegations’ that (1) he engaged in whistleblowing by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor
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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)
(citations omitted).
In the instant action, Riley and the Agency dispute whether Riley’s e-mails are
protected whistleblowing disclosures. Riley argues that he raised a nonfrivolous
allegation of protected whistleblowing activity by disclosing that the Agency terminated
him without notice or counseling by his supervisor, in violation of Federal Emergency
Management Agency Instruction 6200.2. He then argues that his disclosures were a
contributing factor to his termination and that the alleged misuse of the travel credit card
was a pretext for firing him. In response, the Agency asserts that none of the e-mails
submitted by Riley fits the criteria for protected disclosures. The Agency argues that the
e-mails do not identify any information that evidences a violation of law, rule, or
regulation, nor could they be construed as any other disclosure protected under the
WPA.
We agree with the Agency that the Board’s decision was not an abuse of
discretion, contrary to law, or otherwise reversible. The WPA defines a protected
disclosure as “information which the employee or applicant reasonably believes
evidences—(i) a violation of any rule, law, 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) (2006). No such disclosure was made
here. It is clear that the e-mails that Riley points to as his alleged disclosures do not fit
into any category of protected disclosures under the WPA. The e-mails indicate that
Riley had personal disagreements with legitimate managerial decisions such as where
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to send him on assignments and terminating his employment based on problems with
his travel charge card. Those disagreements fall far short of demonstrating any
violations of law, gross mismanagement, abuse of authority, or reporting of any other
kind of activity that could be considered a whistleblowing disclosure.
Thus, the Board did not abuse its discretion, commit any error of law, or
otherwise reversibly err, in dismissing Riley’s appeal for lack of jurisdiction. Accordingly,
we affirm the Board’s decision.
COSTS
No costs.
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