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
05-3348
ANASTASIA M. KAVANAGH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
____________________
DECIDED: April 10, 2006
____________________
Before LOURIE, CLEVENGER, and BRYSON, Circuit Judges.
PER CURIAM.
Anastasia M. Kavanagh appeals from the final decision of the Merit
Systems Protection Board (“Board”) dismissing her appeal for lack of jurisdiction.
Kavanagh v. Department of Defense, No. DC-1221-04-W-1 (M.S.P.B. July 15,
2005). Because the Board correctly determined that it lacked jurisdiction over
her appeal, we affirm.
BACKGROUND
Kavanagh was employed as an Accounting Technician and Operating
Accountant in the Washington Headquarters Services division of the Department
of Defense (the “Agency”). In 1985, she sought a different position that required
Top Secret clearance but she was not granted that clearance. She eventually
resigned from her position in 1990. On January 4, 2004, Kavanagh filed a
complaint at the Office of Special Counsel (“OSC”), alleging that the Agency
retaliated against her for engaging in whistleblowing activity. Between 1982 and
1983, Kavanagh wrote numerous memoranda to management consisting of
suggestions to improve management procedures. She claims that in retaliation
for disclosing the memoranda, the Agency placed her into the “International
Security Net,” which she alleges resulted in her safety being endangered. On
July 28, 2004, the OSC informed Kavanagh that it had terminated its inquiry into
her whistleblowing complaint.
On August 31, 2004, Kavanagh filed an individual right of action (“IRA”)
appeal to the Board, alleging that she was “thrown into the International Security
Net” in retaliation for her whistleblowing activity. On September 21, 2004, the
administrative judge (“AJ”) notified Kavanagh that, to establish jurisdiction over
her IRA appeal, she would have to show that she had exhausted her
administrative remedies before the OSC and that she had made nonfrivolous
allegations of engaging in whistleblowing activity. Kavanagh responded with a
letter stating again that following the request for Top Security clearance, she was
thrown into the International Security Net in retaliation for her whistleblowing
activity.
On October 21, 2004, the AJ dismissed Kavanagh’s appeal for lack of
jurisdiction. Although the AJ determined that Kavanagh had exhausted her
administrative remedies before the OSC, the AJ found that she had not shown
that she made a nonfrivolous allegation of a protected disclosure. The AJ noted
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that a “protected disclosure” is a disclosure of a “violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or substantial and specific danger to public health or safety.” The AJ determined
that Kavanagh’s alleged protected disclosures, which consisted of suggestions to
improve management procedures, were debatable management decisions that
did not rise to the level of “gross mismanagement or abuse of authority.” The AJ
thus concluded that because she had not made a nonfrivolous allegation of a
protected disclosure evidencing gross mismanagement or abuse of authority, the
Board lacked jurisdiction to hear her appeal.
The AJ then determined that even if Kavanagh’s suggestions could be
considered “protected disclosures,” the Board would still lack jurisdiction over the
appeal because the Agency’s alleged acts of reprimand predated the effective
date of the Whistleblower Protection Act (“WPA”). The AJ noted that once an
appellant establishes that she made a protected disclosure, the inquiry shifts to
whether the disclosure was a contributing factor in the Agency’s decision to take
or fail to take a personnel action. The AJ observed that the date of the Agency’s
notice of proposed reprimand was November 14, 1985, which predated the July
9, 1989 effective date of the WPA. Therefore, the AJ concluded that it further
lacked jurisdiction over the appeal because the Agency’s alleged actions were
taken before the effective date of the WPA.
Kavanagh appealed the AJ’s decision to the full Board, which denied her
petition for review, thereby rendering the AJ’s decision final. See 5 C.F.R.
§ 1201.113(b) (2004).
05-3348 3
Kavanagh timely appealed to this court, and we have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9) (2000).
DISCUSSION
Whether the Board has jurisdiction to adjudicate a particular appeal is a
question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 326
F.3d 1210, 1213 (Fed. Cir. 2003). Kavanagh, as the petitioner, has the burden of
establishing the Board’s jurisdiction by a preponderance of the evidence. See id.
at 1213-14.
Kavanagh argues that she made a nonfrivolous allegation of a protected
disclosure. According to Kavanagh, she disclosed to her supervisors
memoranda that revealed significant problems in the Agency’s accounting
system. She further contends that in retaliation for disclosing those memoranda
to her supervisors, the Agency placed her name in its “Security Service files,”
resulting in alleged harassment by various members of the public and a feeling of
isolation from society and her family.
The government responds that the AJ correctly determined that Kavanagh
failed to make a nonfrivolous allegation that her disclosures were protected under
the WPA. The government argues that Kavanagh’s alleged disclosures
consisted of employee suggestion forms that criticized agency policies and her
working conditions and that contained ideas for changes in internal agency
procedures. According to the government, those disclosures represented mere
differences of opinion between her and her supervisors and did not amount to a
nonfrivolous allegation of an abuse of authority or gross mismanagement. In
05-3348 4
addition, even if the disclosures were protected under the WPA, the government
contends that the Board would still have lacked jurisdiction over her appeal
because the Agency’s alleged acts of reprisals occurred before the effective date
of the WPA.
We agree with the government and conclude that the Board correctly
decided that it did not have jurisdiction over Kavanagh’s appeal on the grounds
that she did not make a “protected disclosure” and that the alleged Agency action
occurred before the effective date of the WPA. In order for the Board to have
jurisdiction over an IRA appeal, an employee must first exhaust her
administrative remedies before the OSC and make nonfrivolous allegations that
(1) she engaged in whistleblowing activity by making a protected disclosure, and
(2) the disclosure was a contributing factor in the agency’s decision to take or fail
to take a personnel action after July 9, 1989, the effective date of the WPA. See
Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
A protected disclosure is one that the appellant reasonably believes
evidences a violation of law, rule or regulation, gross mismanagement, a gross
waste of funds, abuse of authority, or a substantial and specific danger to public
health or safety. 5 U.S.C. § 2302(b)(8). “Gross mismanagement” has been
defined as a management action or inaction which creates a substantial risk of
significant adverse impact upon the agency’s ability to accomplish its mission.
White v. Dep’t of the Air Force, 63 M.S.P.R. 90, 95 (1994). Kavanagh’s
disclosures consisted of memoranda with various “suggestions” and “suggested
procedures” for improving internal agency procedures. The Board correctly
05-3348 5
concluded that those suggestions were not “protected disclosures” because they
did not demonstrate a violation of a rule or regulation, gross mismanagement, or
an abuse of authority. The suggestions for improving internal protocol were not
directed towards management action that created a substantial risk of significant
adverse impact upon the agency’s ability to accomplish its mission.
Even assuming that Kavanagh’s disclosures were “protected disclosures,”
the Board still would not have had jurisdiction over her appeal because the
alleged acts of reprisal occurred before July 9, 1989, the effective date of the
WPA. The Top Secret clearance request for Kavanagh was issued and denied in
1985. After being denied the clearance, she was allegedly placed into the
“International Security Net.” The Agency’s denial of the Top Secret clearance,
which constituted the alleged act of reprisal, occurred in 1985, well before the
effective date of the WPA. Because the date of the alleged Agency reprisal
predated the effective date of the WPA, the Board did not have jurisdiction over
the appeal.
Kavanagh also argues that the AJ failed to take into account the fact that
others recognized her entitlement to assistance under the WPA. She contends
that that fact was evidenced by the numerous telephone numbers and the names
of lawyers given to her throughout the grievance process. That fact, however,
merely demonstrates that the Agency provided Kavanagh with a list of people
who might assist her during the grievance procedure. That is appropriate
protocol for the Agency and is a fact that is not relevant to the jurisdictional issue
before us.
05-3348 6
Because the Board correctly determined that it lacked jurisdiction over her
appeal, we affirm.
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