Case: 21-1693 Document: 40 Page: 1 Filed: 03/21/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FAYE RENNELL HOBSON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1693
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-20-0604-W-1.
______________________
Decided: March 21, 2022
______________________
FAYE RENNELL HOBSON, Clarksville, TN, pro se.
KATRINA LEDERER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
PER CURIAM.
Case: 21-1693 Document: 40 Page: 2 Filed: 03/21/2022
2 HOBSON v. MSPB
Faye R. Hobson appeals the Merit Systems Protection
Board’s dismissal of her Individual Right of Action appeal
under the Whistleblower Protection Act and Whistleblower
Protection Enhancement Act for lack of jurisdiction. The
Board found Mrs. Hobson failed to make a non-frivolous al-
legation that her protected activity was a contributing fac-
tor to personnel (retaliatory) action taken against her. We
affirm.
BACKGROUND
The Whistleblower Protection Act (“WPA”) and Whis-
tleblower Protection Enhancement Act (“WPEA”) 1 prohibit
an agency from taking personnel action against an em-
ployee for disclosing information that the employee reason-
ably believes evidences a violation of law, rule, or
regulation; gross mismanagement; a gross waste of funds;
an abuse of authority; or a substantial and specific danger
to public health or safety. See Chambers v. Dep’t of the In-
terior, 602 F.3d 1370, 1375–76 (Fed. Cir. 2010) (citing
5 U.S.C. § 2302(b)(8)). To report a whistleblower violation,
an employee may file a complaint with the Office of Special
Counsel (“OSC”). See Cahill v. Merit Sys. Prot. Bd., 821
F.3d 1370, 1373 (Fed. Cir. 2016). If no action is taken by
the OSC, the employee may file an Individual Right of Ac-
tion (“IRA”) appeal before the Merit Systems Protection
Board (the “Board”). See id.
Appellant Faye R. Hobson worked for the Department
of Defense, Education Activity (“Defense Ed”) beginning in
2002. Appx. 236. 2 In 2005, Mrs. Hobson’s military spouse
1 The WPA of 1989 provides the general framework
of the whistleblower protection process. In 2012, the
WPEA made amendments to the existing framework.
2 “Appx.” refers to the appendix submitted with Ap-
pellant’s Opening Brief. For the sake of clarity, the cited
Case: 21-1693 Document: 40 Page: 3 Filed: 03/21/2022
HOBSON v. MSPB 3
was assigned to duty at Fort Campbell, Kentucky. That
year, Mrs. Hobson accepted a position as a Special Educa-
tion Teacher at Barkley Elementary School in Fort Camp-
bell. Id. After reviewing student files, Mrs. Hobson
discovered what she believed were improper special educa-
tion practices at the elementary school for the 2005–2006
school year. 3 Appx. 61. Mrs. Hobson disclosed the im-
proper practices to the Assistant Principal, the Special Ed-
ucation Coordinator, the Community Superintendent, and
the Fort Campbell Schools Superintendent. Appx. 237.
Mrs. Hobson subsequently applied for eight teaching
positions during 2012 and 2014 but was not selected.
Appx. 61. In December 2014, Mrs. Hobson filed a com-
plaint with the OSC alleging that Defense Ed retaliated
against her for disclosing the improper practices.
Appx. 238. The OSC closed her case without taking action.
She then filed an IRA appeal before the Board. Id. In Sep-
tember 2016, the Board determined that Mrs. Hobson had
made a protected disclosure but denied her claim on
grounds that she failed to make a non-frivolous allegation
that the disclosure was a contributing factor in the decision
by Defense Ed not to select her for a teaching position.
Appx. 235–36.
In August 2019, Mrs. Hobson filed a second whistle-
blower complaint with the OSC. Appx. 96–108. Mrs. Hob-
son asserted that she faced retaliation for her prior
disclosure of the improper practices and for certain other
protected activity, including her previous IRA appeal; serv-
ing as a witness in another Board hearing; and filing a
page numbers refer to the page numbers included in the
electronic stamp at the top of the page.
3 According to Mrs. Hobson, the elementary school
violated federal and state special education funding re-
quirements regarding services provided and student record
maintenance. Appx. 236–37, 241–42.
Case: 21-1693 Document: 40 Page: 4 Filed: 03/21/2022
4 HOBSON v. MSPB
complaint in federal court. Appx. 102–03. Mrs. Hobson al-
leged her non-selection for teaching positions as retaliatory
action. Appx. 99. Specifically, Mrs. Hobson identified the
Fort Campbell Middle School Principal (the “Principal”) as
the official responsible for the retaliation, but she did not
allege that the Principal was aware of her protected activ-
ity. Id. Her complaint stated that she is a “known whis-
tleblower” but did not explain who knew her as a
whistleblower or how they knew she is a whistleblower. Id.
The OSC asked Mrs. Hobson to explain how the selecting
officials knew about her protected activity. Appx. 124.
Mrs. Hobson responded by reiterating her allegations of re-
taliatory activity but did not provide further explanation.
Appx. 113–18. In June 2020, the OSC determined
Mrs. Hobson’s activity was whistleblower protected activ-
ity, but it closed her claim on grounds that she failed to
allege that her protected activity was a contributing factor
in the personnel decision not to hire her. Appx. 120,
123–25.
Mrs. Hobson appealed the OSC’s decision to the Board.
Appx. 60. The Board issued an “Order on Jurisdiction and
Proof Requirements” (“Jurisdiction Order”). Appx. 164–71.
The Jurisdiction Order advised Mrs. Hobson on the re-
quirements for establishing jurisdiction and provided in-
structions. Appx. 165–69. As a result, Mrs. Hobson
submitted supplemental filings to the Board, including
communications with the OSC. Appx. 62.
The Board reviewed Mrs. Hobson’s supplemental fil-
ings and dismissed her appeal for lack of jurisdiction.
Appx. 60–62. The Board explained that Mrs. Hobson’s ap-
peal addressed only one of the non-selections at issue—a
Fort Campbell Middle School English position.
Appx. 64–66. The Board further determined that because
Mrs. Hobson did not allege that her protected activity was
a contributing factor in her non-selection for that position,
she failed to make a non-frivolous allegation as required
under the WPA. Appx. 66–69. Accordingly, the Board
Case: 21-1693 Document: 40 Page: 5 Filed: 03/21/2022
HOBSON v. MSPB 5
found that it lacked jurisdiction over Mrs. Hobson’s appeal
and dismissed the appeal.
Mrs. Hobson timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Whether the Board has jurisdiction is a question of law
that this court reviews de novo. Kerrigan v. Merit Sys.
Prot. Bd., 833 F.3d 1349, 1353 (Fed. Cir. 2016) (citing Her-
man v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir.
1999)).
DISCUSSION
The Board has jurisdiction over an IRA appeal pro-
vided that the appellant makes “non-frivolous allegations”
of whistleblowing activity. A non-frivolous allegation is
one that alleges a protected disclosure or activity and that
the protected disclosure or activity “was a contributing fac-
tor in the agency’s decision to take or fail to take a person-
nel action.” Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362,
1367 (Fed. Cir. 2020).
It is not disputed that Mrs. Hobson engaged in pro-
tected activity. We agree. We next examine whether
Mrs. Hobson made a non-frivolous allegation that her pro-
tected activity was a contributing factor to the alleged per-
sonnel action.
To demonstrate that the protected activity was a con-
tributing factor to the personnel action, the appellant may
allege that “the official taking the personnel action knew of
the disclosure or protected activity” and “the personnel ac-
tion occurred within a period of time such that a reasonable
person could conclude that the disclosure or protected ac-
tivity was a contributing factor in the personnel action.”
5 U.S.C. § 1221(e)(1).
Here, Mrs. Hobson does not make a non-frivolous alle-
gation that her protected activity was a contributing factor
Case: 21-1693 Document: 40 Page: 6 Filed: 03/21/2022
6 HOBSON v. MSPB
to the personnel action, the alleged retaliation. Through-
out the filings and communications with the OSC,
Mrs. Hobson fails to allege that the Principal or anyone
else knew of her protected activity. Accordingly, we deter-
mine that Mrs. Hobson has failed to make a non-frivolous
allegation that her protected activity contributed to her
non-selection for the Middle School position. As such, we
affirm the Board’s determination that it lacks jurisdiction.
CONCLUSION
Mrs. Hobson demonstrated she engaged in protected
activity. But to establish Board jurisdiction, Mrs. Hobson
must allege that official(s) responsible for alleged person-
nel action knew of her protected activity. Because
Mrs. Hobson did not allege that the Principal was aware of
the whistleblower activity, Mrs. Hobson failed to establish
Board jurisdiction over her IRA appeal. Accordingly, we
affirm.
AFFIRMED
COSTS
No costs.