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

05-3211 MICHAEL C. SMART, Petitioner,

v. DEPARTMENT OF THE ARMY, Respondent.

___________________________ DECIDED: November 14, 2005

___________________________ Before NEWMAN, RADER, and DYK, Circuit Judges

. PER CURIAM.

Petitioner Michael C. Smart (“Smart”) petitions for review of the final decision of the Merit Systems Protection Board (“Board ”), affirming the Admi nistrative Judge’s (“AJ”) dismissal of Smart’s i ndividual right of action (“IRA”) appeal from his termination by the Department of the A rmy (“Agency”). Smart argues that he was terminated in retaliation for conduct protected under the Wh istleblower Protection Act of 1989, codified at 5 U.S.C. § 2302. We affirm. BACKGROUND Smart was employed by the Agency as a security guard in July 2001, and was transferred to the Agency’s Umatilla Chemical Depot in Hermiston, Oregon (“Depot”), in September 2001. By letter dat ed January 30, 2002, the Acting Director of Security at the Depot informed Smart t hat he had been absent without offi cial leave since January11, 2002, and directed Smart to report to duty immediately or provide an acceptable explanation for his absence. Smart did not comply, and was terminated on the basis of abandonment of position effect ive February 14, 2002. Smart, as a probationary em ployee, could appeal to the Board only on limited grounds. See 5 C.F.R. § 315.806 (2002). One ava ilable ground is a violation of the Whistleblower Protection Act (“WPA”). 5 U.S.C. § 1221(a) (2000); 5 C.F.R. § 1209.2(b)(1) (2002). Smart fil ed an IRA appeal with the Board, alleging that the Depot’s Special Reaction Team (“SRT”) was trained at the Department of Energy (“DOE”) rather than at the Department of Defense (“DOD”) fa cility at Ft. Leonard Wood, Missouri; that this DOE training violated DOD regulations; that he disclosed this information both in an October 24, 2001, conversation and in a Januar y 12, 2002, newspaper ar ticle; and that the Agency terminated him in reprisal for these disclosures. In a December 24, 2003, initial decisi on, the AJ found t hat the Board had jurisdiction, applying the standard that the Board has jurisdiction over a WPA claim where there are non-frivolous allegations. The AJ dismissed Smart’s appeal on the merits, concluding that he had failed to prove by preponderant ev idence that his disclosures were protected by the WPA. T he Board denied Smart’s petition for review, but reopened the appeal sua sponte . The Board concluded that it had jurisdiction because Smart had made non-frivolous allegat ions that (1) he engaged in protected whistleblowing activity, and (2) that his prot ected conduct was a c ontributing factor in the agency’s decision to take personnel acti on. Though the Board found that the AJ had failed to consider Smart’s disclosure in the January 12, 2002, newspaper article, the Board affirmed the AJ’s decision on the me rits, concluding that Smart failed to prove

05-3211 2by preponderant evidence that he reasonably be lieved he was disclosing a violation of law or that his disclosures evidenced a subs tantial danger to public safety as required for protection under the WPA. The Board’ s decision became final on May 24, 2005. Smart timely filed his petition to this court on August 15, 2005. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The Board did not err in applying t he non-frivolous allegation standard to determine that it had jurisdic tion under the WPA. On the merits, the Board’s decision must be affirmed unless it is found to be arbitr ary, capricious, an abus e of discretion, or otherwise not in accordance wit h law; obtained without procedures required by law, rule or regulation; or unsupported by substantial evidenc e. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998). Smart contends that the Board failed to consider all relevant evi dence in concluding that Smart’s disclosures were not protected under the WPA. To establish a claim under the WPA, t he claimant must show by preponderant evidence (1) that he made a disclosure descri bed in 5 U.S.C. § 2302( b)(8); and (2) that the protected disclosure was a contributing factor in a personnel action taken against the claimant. Briley v. Nat’l Archives & Records Admin. , 236 F.3d 1373, 1378 (Fed. Cir. 2001). Among other things, the Act protects “any disclosure of information by an employee or applicant . . . which the em ployee or applicant reasonably believes evidences . . . a violation of any law, rule, or regulation . . . or a substantial and specific danger to public health or safety . . . .” 5 U.S.C. §§ 2302(b)(8)(A)(i )-(ii) (2000). The Board concluded after a thorough analysis t hat the plain language of the relevant

05-3211 3regulations did not prohibit the provision of DOE, rather than DO D, training for the Depot’s SRT, and thus that Smart failed to show that he reaso nably believed that he had disclosed an actual regulatory violation. The Board also concluded that Smart’s disclosures were too vague and speculative to constitute a “substantial and specific danger to public health or safety.” Thus, the Board determined that Smart failed to establish a claim under the Act and that no corrective action was warranted. We conclude that the Board’s dec ision is supported by subst antial evidence and free from legal error.
CONCLUSION For the foregoing reasons, the Board’s decision is affirmed. COSTS No costs.

05-3211 4