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

05-3027

SALLY L. ARNETT, Petitioner,

v. DEPARTMENT OF THE NAVY, Respondent.

__________________________ DECIDED: March 14, 2005

__________________________ Before SCHALL, GAJARSA, and LINN, Circuit Judges

. PER CURIAM. Sally L. Arnett (“Arnett”) petit ions for the review of a final decision of the Merit Systems Protection Board (“Board”), No . SF-1221-04-0427-I-1, dismissing Arnett’s appeal for lack or jurisdiction and for res judicata . Because the Board correctly dismissed Arnett’s appeal for lack of jurisdiction, we affirm

. BACKGROUND Arnett was employed by the Marine Corps Civilian Human Resource Office-West, Marine Corps Base at Camp Pendleton, California on a term appointment from September 5, 1996 through November 20, 1996. Since the end of her term appointment, Arnett has pursued re-employm ent with the Department of the Navy(“Navy”), but has not been hired. Prior to t he filing of the present action, Arnett filed several claims before the Board. In October 2001, Arnett filed a complain t with the Office of Special Counsel (“OSC”), alleging that the Navy had refused to hire her for more than twenty positions in retaliation for whistleblowing. The OSC determined that Arnett had not established any violation. Arnett appealed to the Board, whic h dismissed her appeal as untimely filed. Arnett v. Dep’t of the Navy , No. SF-1221-02-0596-W-1 (MSPB Aug. 28, 2002) (initial decision); Arnett v. Dep’t of the Navy , No. SF-1221-02-0596-W-1 (MSPB Nov. 26, 2002) (final order). On appeal, this court affirmed the Board’s decision. Arnett v. Merit Sys. Prot. Bd. , No. 03-3129, 2003 WL 21659451 (Fed. Cir. Jul. 11, 2003). In October 2003, Arnett filed another complaint with the OSC alleging, inter alia , nepotism and that she had been rated unqualifi ed. The OSC subsequently determined that Arnett had not established nepotism in viol ation of 5 U.S.C. § 2302(b)(7). The OSC also determined that it had previously addressed her allegations of being rated unqualified in conjunction with her October 2001 complaint and closed her case. Arnett appealed to the Board, claiming she had not been hired by the Navy based on reprisals for whistleblowing. The Navy moved to dismiss the appeal on the grounds of lack of jurisdiction and res judicata , arguing that Arnett had raised the same allegations that had been decided against her in the prior Boar d decision. During the proceedings, the Board issued two Orders to Show Cause, requesting that Arnett demonstrate why the appeal should not be dismissed and requesting t hat she clarify her “incomprehensible” filing. In its September 10, 2004 decision, the Board di smissed Arnett’s appeal on the grounds of lack of jurisdiction and res judicata . The Board found it lacked jurisdiction

05-3027 2because Arnett failed to make any nonfri volous allegations that she engaged in whistleblowing activity. It observed that Arne tt, in response to the Board’s two Orders to Show Cause, had failed to specifically ident ify any cognizable whistleblower claims. The Board further found that Arnett was atte mpting to appeal several matters that had previously been adjudicated. Arnett appealed the Board’s final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). ANALYSIS Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s dec ision unless we find it to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidenc e. 5 U.S.C. § 7703(c) (2000); Abell v. Dep’t of the Navy , 343 F.3d 1378, 1382-83 (Fed. Cir. 2003). “This court has held that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his adm inistrative remedies before the OSC and makes ‘nonfrivolous allegations’ that (1) [s]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, 1372 (Fed. Cir. 2001). We have held that “the B oard has jurisdiction over an appeal if the employee makes non-frivolous allegations that the elements of his claim are satisfied.” Spencer v. Dep't of the Navy , 327 F.3d 1354, 1356 (Fed. Cir. 2003).

05-3027 3On appeal, Arnett fails to establish that she made nonfrivolous allegations that she engaged in whistleblowing activities by making a protected disclosure and that any protected disclosure was a contributing fact or in the agency’s actions. Instead, Arnett only provided vague and unspecific allegations of the Board’s jurisdiction in response to the Board’s two Orders to Show Cause requi ring her to specify the “nature of [her] disclosures and the circumstances surr ounding any personnel actions that [she] allege[s] an agency has taken, failed to take, or threatened to take in retaliation for [her] whistleblowing activities.” Thus, we affirm the Board’s dismissal of Arnett’s IRA appeal for lack of jurisdiction on the ground that Arnett failed to sa tisfy her burden of presenting non-frivolous allegations that the el ements of her claim are satisfied. Arnett further makes vague allegations t hat the agency had a conflict of interest and engaged in “reprisal for

. . . nepotism” w hen she was not selected for certain positions. Arnett’s conflict of interest and nepotism claims are related to her whistleblowing retaliation claims, but Arnett’s a ssertions of a conflict of interest and of nepotism are insufficient to establish independent Board jurisdiction over her appeal. Arnett argues that the Board possesses ju risdiction over her appeal because she was disqualified from a pos ition based on a suitability det ermination. Although the Board does possess jurisdiction to review negative suitability determinations of some employees, 5 C.F.R. § 731.501, Ar nett did not raise the issue of her alleged unsuitability before the Board and the record does not indicate that she wa s in fact found unsuitable. Accordingly, Arnett’s suitability claim is waived. White v. Dep’t of Justice , 328 F.3d 1361, 1372 (Fed. Cir. 2003) (stating that an appellant “cannot challenge upon appeal what he failed to challenge before the Board”).

05-3027 4Finally, Arnett argues that an agency res ponse she received after September 10, 2004 is evidence of a continuing pattern of “retaliation, non-selection and unsuitability for employment.” However, this agency re sponse was not raised before the Board or contained in the administrative record, and this Court declines to consider such evidence for the first time on appeal. Oshiver v. Office of Pers. Mgmt. , 896 F.2d 540, 542 (Fed. Cir. 1990) (“We will not consider the new evidence contained in the supplemental papers because that evidence was not presented to the Board.”); see also White , 328 F.3d at 1372. We have considered the remainder of Ar nett’s arguments and find them to be without merit. Arnett has now had ample opportunities to challenge all of the disputes surrounding her attempts to obtain re-emplo yment with the Navy and to raise various theories concerning the remedies she has s ought from the United St ates Government. While the courts of the Unit ed States are open for individuals to make claims against their government, continued challenges conc erning the same set of underlying facts eventually constitute an abuse of the judicial system. Such a point has now been reached. Arnett is therefor e warned that further appeals in volving claims based on the same set of facts, whether raising the same or new theories, may be held to be frivolous and subject to sanctions, see Federal Rule of Appellate Procedure 38.

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