NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO R. VALENZUELA,

Petitioner,

v.

MERIT SYSTEMS PROTECTION 

BOARD,

Respondent.

No. 23-1751

Merit Systems Protection Board

MEMORANDUM*

On Petition for Review of an Order of the

Merit Systems Protection Board

Submitted September 13, 2024**

Pasadena, California

Before: SCHROEDER, R. NELSON, and MILLER, Circuit Judges.

Mario Valenzuela alleges that his former employer, U.S. Customs and Border 

Protection (CBP), violated the Whistleblower Protection Act by retaliating against 

him for disclosing a defect in an alert system. After exhausting his administrative 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

SEP 18 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-1751

remedies, Valenzuela filed an Individual Right of Action with the Merit Systems 

Protection Board. The Board dismissed his appeal for lack of jurisdiction, and 

Valenzuela now petitions for review of that decision. We review Valenzuela’s 

petition de novo. Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th Cir. 

2016). We have jurisdiction under 5 U.S.C. § 7703(b)(1)(B), and we deny the 

petition.

To invoke the Board’s jurisdiction, Valenzuela needed to make “nonfrivolous allegations” that (1) he made a protected disclosure, and (2) the disclosure 

was a contributing factor in his employer’s decision to take or fail to take an

enumerated personnel action. Daniels, 832 F.3d at 1051 (quotation omitted); see

also 5 C.F.R. § 1201.4(s) (non-frivolous allegations are “more than conclusory,” 

“plausible on [their] face,” and “material to the legal issues in the appeal”).

1

 

Valenzuela has not met his burden.

1. Valenzuela told his management that an allegedly defective alert 

system “could be harmful to national security and public safety.” That disclosure—

1 Valenzuela asserts that the administrative law judge (ALJ) effectively applied a 

summary judgment standard inconsistent with our precedent. See Daniels, 832 F.3d 

at 1051 (“[T]he standard for determining whether a petitioner has made a nonfrivolous disclosure is analogous to the standard for reviewing a motion to 

dismiss.”). But the ALJ expressly relied on Valenzuela’s own submissions, which 

were uncontested. At no point did the ALJ “deny jurisdiction by crediting the 

agency’s interpretation of the evidence.” Hessami v. Merit Sys. Prot. Bd., 979 F.3d 

1362, 1369 (Fed. Cir. 2020).
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for which he claims he suffered retaliation—is not protected under the 

Whistleblower Protection Act.

A protected disclosure is one that an employee “reasonably believes evidences 

(i) any violation of any law, rule, 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)(A). The disclosures must be specific and 

detailed—not vague and conclusory. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 

905, 910 (Fed. Cir. 2008).2 

Valenzuela argues that he reasonably believed his disclosure revealed a 

substantial and specific danger to public health and safety. But Valenzuela did not 

detail any specific harm stemming from the alleged malfunction. And, assuming 

Valenzuela is right that the alarm reset itself without human intervention, any danger 

from that alleged defect is the kind of “negligible, remote, or ill-defined peril” that 

is not protected under the statute. Chambers v. Dep’t of Interior, 515 F.3d 1362, 

1369 (Fed. Cir. 2008) (quotation omitted).

Nor has Valenzuela alleged that his disclosure related to a violation of a 

“specific law, rule, or regulation.” Langer v. Dep’t of Treasury, 265 F.3d 1259, 1266 

2 Until 2012, the Federal Circuit had exclusive jurisdiction over most whistleblower 

reprisal cases. So we often look to that court’s case law when resolving petitions for 

review of Board decisions. See, e.g., Johnen v. U.S. Merit Sys. Prot. Bd., 882 F.3d 

1171, 1174 & n.2 (9th Cir. 2018).
4 23-1751

(Fed. Cir. 2001) (quotation omitted). He invokes what he calls the “CBP’s safety 

and security protocol,” but that argument is based on an email sent from his attorney 

to the agency, not “an agency statement of . . . future effect designed to implement, 

interpret, or prescribe law.” 5 U.S.C. § 551(4).

Valenzuela also asserts that his disclosure identified an abuse of authority and 

gross mismanagement. He has not identified specific facts explaining why an 

alleged malfunction in the alarm satisfies that standard. That renders his argument 

“facially insufficient.” Johnston, 518 F.3d at 910.

Because Valenzuela’s disclosure is not protected, we need not address 

whether it contributed to an enumerated personnel action.

2. Valenzuela also argues that he is entitled to an evidentiary hearing. We 

have never held that employees are entitled to a hearing on whether they have 

properly invoked the Board’s jurisdiction. Cf. Dick v. Dep’t of Veterans Affs., 290 

F.3d 1356, 1362 (Fed. Cir. 2002) (“There simply is no right to a hearing on the 

threshold issue of jurisdiction.”), overruled on other grounds by Garcia v. Dep’t of 

Homeland Sec., 437 F.3d 1322, 1343 (Fed. Cir. 2006) (en banc). Valenzuela also 

identifies no statute that gives him that right. Title 5 U.S.C. § 7701(a)(1) 

contemplates a hearing in some situations, but that provision applies only once the 

Board’s jurisdiction has been established. Rose v. Dep’t of Health & Hum. Servs., 

721 F.2d 355, 357 (Fed. Cir. 1983). And despite Valenzuela’s concerns about due 
5 23-1751

process, “the Due Process Clause does not mandate a hearing where the statute does 

not require that one be afforded.” Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124–

25 (Fed. Cir. 1996).

PETITION DENIED.