NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3225 

DIANE KING, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

Diane King, of Tahlequah, Oklahoma, pro se. 

Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Todd M. Hughes, Deputy Director. 

Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

2008-3225 

DIANE KING, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

Petition for review of the Merit Systems Protection Board in AT1221060462-B-1. 

 ___________________________ 

 DECIDED: October 9, 2008 

 ___________________________ 

Before MAYER, SCHALL, and MOORE, Circuit Judges. 

 

PER CURIAM. 

Diane King appeals the final decision of the Merit Systems Protection Board 

(Board) dismissing her individual right of action (IRA) appeal for lack of jurisdiction. 

King v. Dep’t of Veterans Affairs, 108 M.S.P.R. 576 (2008). Because the Board 

correctly concluded that Ms. King failed to set forth a nonfrivolous allegation that she 

engaged in whistleblowing activity by making a protected disclosure, we affirm. 

BACKGROUND 

At the time of the events at issue, Ms. King was a Medical Technologist in the 

Pathology and Laboratory Medicine Service at the Central Alabama Veterans Health 
Care Systems in Montgomery, Alabama (the agency).1

 On August 22, 2005, Ms. King 

sent an e-mail to her supervisor, John A. Wilson, with the subject line “FW: GWEN 

FOSTER NEEDS TO BE FIRED.” In the e-mail, Ms. King alleged that Ms. Foster, a 

phlebotomist employed by the agency, failed to timely collect two blood samples. 

(Resp’t’s App. 3 (“A STAT BLOOD CULTURE WAS ORDERED AT 1201. GWEN DID 

NOT COLLECT IT UNTIL 1420. A STAT CBC WAS ORDERED FOR 1200. GWEN 

DID NOT COLLECT IT.”)). Contrary to Ms. King’s allegations, the agency’s 

investigation revealed that the orders to collect the two blood samples had been 

canceled. The agency concluded that Ms. King had made false statements regarding 

Ms. Foster, and it issued a notice of proposed reprimand on that basis on November 10, 

2005. In reply to the proposed reprimand, Ms. King submitted an annotated version of 

her August 22, 2005 e-mail, reasserting that Ms. Foster failed to collect the two blood 

samples, but not addressing whether the orders to collect the samples had been 

canceled. After considering Ms. King’s reply, the agency made the reprimand final on 

December 7, 2005. 

On December 11, 2005, Ms. King filed a complaint with the Office of Special 

Counsel (OSC), claiming that her e-mail was a protected disclosure and that the 

reprimand constituted reprisal for whistleblowing. In her complaint to OSC, she 

identified four alleged whistleblower disclosures, including the August 21, 2005 e-mail: 

(1) reporting patient neglect and abuse on October 30, 2005; (2) reporting patient 

neglect on August 21, 2005; (3) reporting that an agency director lied to the agency’s 

 1

 The agency later removed Ms. King from her position for other 

misconduct. We affirmed the removal in King v. Department of Veterans Affairs, No. 

2008-3043, 2008 U.S. App. LEXIS 9839 (Fed. Cir. May 6, 2008). 

2008-3225 2
inspector general on July 29, 2005; and (4) reporting patient neglect on October 14, 

2004 through July 28, 2005. 

After exhausting her administrative remedies with OSC, Ms. King filed an IRA 

appeal to the Board. In an initial decision, issued July 17, 2006, the AJ denied Ms. 

King’s request for corrective action because the agency had shown that it would have 

taken the same personnel action in the absence of Ms. King’s alleged protected 

disclosure. Following Ms. King’s petition, the Board ruled that the AJ should have 

examined the Board’s jurisdiction before considering the merits of the appeal. King v. 

Dep’t of Veterans Affairs, 105 M.S.P.R. 21, 25 (2007). The Board was unable, 

however, to determine its jurisdiction because the OSC complaint lacked sufficient 

information, and the AJ had never put Ms. King on notice of what she must do to 

establish jurisdiction. Id. at 27-29. The Board vacated the initial decision and 

remanded the appeal to the AJ to determine whether the Board had jurisdiction over 

Ms. King’s petition. Id. at 29. 

After the AJ provided Ms. King with notice of the jurisdictional requirements on 

February 27, 2007, Ms. King submitted a large number of documents that the AJ found 

to be unrelated to the issue of jurisdiction. In his second initial decision, issued June 5, 

2007, the AJ dismissed the appeal for lack of jurisdiction because Ms. King failed to set 

forth a nonfrivolous allegation that any of the specific disclosures set forth in her OSC 

complaint were protected or were a contributing factor in her reprimand. King v. Dep’t 

of Veterans Affairs, No. AT-1221-06-0462-B-1, 2007 MSPB LEXIS 1730, at *4-5 (June 

5, 2007). 

2008-3225 3
Ms. King filed a petition for review of the second initial decision, which was 

denied on October 18, 2007. King, 108 M.S.P.R. 576. Ms. King now timely appeals. 

DISCUSSION 

The scope of the Board's jurisdiction is a question of law, which we review de 

novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008) (“The 

board’s jurisdiction is not plenary, but is limited to those matters over which it has been 

granted jurisdiction by law, rule or regulation.”). Ms. King has the burden of proving that 

the Board has jurisdiction by a preponderance of the evidence. 5 C.F.R. 

§ 1201.56(a)(2)(i). 

The Board has jurisdiction over an IRA appeal if the appellant exhausted her 

administrative remedies before the OSC and makes “non-frivolous allegations” that (1) 

she 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, 1371 (Fed. Cir. 2001). Because the agency 

stipulated that Ms. King exhausted her administrative remedies before the OSC, the 

only question on appeal is whether she set forth a nonfrivolous allegation that she 

engaged in whistleblowing activity by making a protected disclosure. 

The Board reviews the evidence submitted by Ms. King to ascertain whether it 

was reasonable to believe that any of Ms. King’s disclosures qualified as a protected 

disclosure under 5 U.S.C. § 2302(b)(8): 

(A) any disclosure of information by an employee or applicant which the 

employee or applicant reasonably believes evidences -- 

(i) a violation of any law, rule, or regulation, or 

2008-3225 4
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, 

or a substantial and specific danger to public health or safety. . . . 

Lachance v. White, 174 F.3d 1378, 1380-81 (Fed. Cir. 1999); see also Huffman v. 

Office of Pers. Mgmt., 92 M.S.P.R. 429, 433 (2002) (“To establish that he held such a 

reasonable belief, an appellant need not prove that the condition disclosed actually 

established one or more of the listed categories of wrongdoing, but he must show that 

the matter disclosed was one which a reasonable person in his position would believe 

evidenced one of the situations specified in 5 U.S.C. § 2302(b)(8).”). 

We agree with the Board that the evidence submitted by Ms. King was 

insufficient to establish that it was reasonable to believe that Ms. King’s disclosures 

evidenced one of the defined types of misbehavior. With regard to the report of patient 

neglect and abuse on October 30, 2005, and the report(s) of patient neglect on October 

14, 2004 through July 28, 2005, Ms. King provides no information other than the bare 

allegations that she made protected disclosures on those dates. Because she failed to 

provide any information bearing on the content of these disclosures necessary to 

evaluate them under Lachance, Ms. King failed to set forth a nonfrivolous allegation with 

regard to these disclosures. Similarly, with regard to the report that an agency director 

lied to the agency’s inspector general on July 29, 2005, Ms. King provided nothing other 

than a bare allegation in her complaint to OSC. In a pleading dated April 23, 2006, she 

elaborated somewhat on the circumstances surrounding the alleged lie, but nonetheless 

failed to set forth a nonfrivolous allegation with regard to this disclosure. 

Ms. King’s most detailed allegation relates to her August 21, 2005 e-mail. In the 

e-mail, Ms. King reports that Ms. Foster failed to comply with orders to collect blood 

samples. What Ms. King did not do—in her complaint to OSC, her e-mail, or in her 

2008-3225 5
2008-3225 6

reply to the proposed reprimand—is explain or provide facts indicating why Ms. Foster’s 

alleged behavior was at all problematic. Ms. King does not disclose how she became 

aware of the orders, whether she was aware that the orders had been canceled, the 

nature of Ms. Foster’s alleged failure, or the relevance of Ms. Foster’s alleged failure to 

the categories of misbehavior enumerated in 5 U.S.C. § 2302(b)(8). Lacking 

information of this sort, Ms. King has failed set forth a nonfrivolous allegation with 

regard to her August 21, 2005 disclosure. 

Because the Board correctly concluded that Ms. King failed to set forth a 

nonfrivolous allegation that she engaged in whistleblowing activity by making a 

protected disclosure the decision of the Board is affirmed. 

COSTS 

No costs.