N OTE : This disposition is nonprecedential.



# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

MARSHA L. PAYTON, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2012

- 3212

______________________

Petition for Review of the Merit Systems Protection

Board in No. AT1221110957

- W

- 1.

______________________

Decided: March 12, 2013

______________________

M ARSHA L. P AYTON , of Holly Hill Florida, pro se.

M ICHAEL A. C AR NEY , General Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief

were J AMES M. E ISENMANN , General Counsel, and K EISHA
D AWN B ELL , Deputy General Counsel.

______________________MARSHA PAYTON v. MSPB 2

Before R ADER

, Chief Judge, M AYER

, and P ROST

, Circuit Judges.

P ER C URIAM

. Marsha L. Payton appeals a final order of the Merit Systems Protection Board (“board”) dismissing her ind ividual right of action appeal for lack of jurisdiction. See Payton v. Dep’t of Homeland Sec. , 118 M.S.P.R. 422 (2012). We affirm

.

I.

This is Payton’s tenth appeal to this court. See Payton v. Dep’t of Homeland Sec

. , No. 2012

- 3193, 2013 U.S. App. LEXIS 933 (Fed. Cir. Jan. 15, 2013) (describing Payton’s previous petitions f or review). In her current appeal, Payton alleges that the Department of Homeland Security failed to reinstate her to her former position as a Management Program Specialist in retaliation for pr otected whistle

- blowing activities. As the board correctly

d etermined, however, it had no jurisdiction over Payton’s appeal because she failed to make non

- frivolous alleg ations that she made disclosures protected by the Whistl eblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8)

. For individual right of act ion appeals, “the Board’s j uri s diction is established by nonfrivolous allegations that the [employee] made a protected disclosure that was a

co n tributing factor to the personnel action taken or pr oposed.” Stoyanov v. Dep’t of the Navy , 474 F.3d 1377,

1382 (Fed. Cir. 2007); see also Garcia v. Dep ’ t of Hom eland Sec. , 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc). Thus, Payton “ could establish a jurisdictional predicate
for her claims ” only if she made “ non

- frivolous allegations that: (1) her disclosures we re within the purview of the WPA, and (2) she suffered reprisal in the wake of these

disclosures.” Johnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008).MARSHA PAYTON v. MSPB 3

On September 20, 2011, Payton filed an initial a p peal with the board alleging that th e Department of Homeland Security had retaliated against her because she had engaged in protected whistle

- blowing activities. Shortly thereafter, an administrative judge of the board issued an order explaining the requirements for establis h ing board juris diction over an individual right of action appeal. This order instructed Payton to file a statement, acco mpanied by evidence, showing that the board had jurisdi ction over her appeal. In response, Payton submi t ted a letter stating that she had “been in co urt for 7 years, at each level of court,” but that she had always been “r emanded back to the discriminating official.” Payton also referenced a letter, dated August 2011, which she had received from the Office of Special Counsel (“OSC”). Although this le tter stated that the OSC had “terminated [its] inquiry into [Payton’s] allegations,” it did not contain any substantive information about her complaint. The letter did not point to any alleged whistle

- blowing discl osures made by Payton. Thus, although Pa yton asserted before the board that her “protected Disclosure is Whi stleblower,” she failed to identify any specific statements that could even arguably qualify for protection under the

WPA.

On appeal, Payton refers to several complaints that she apparent ly filed with the Equal Employment Oppo rtunity Commission (“EEOC”). The filing of an EEOC complaint, however, does not constitute a protected di sclosure for purposes of the WPA. See Spruill v. Merit Sys.

Prot. Bd. , 978 F.2d 679, 692 n.17 (Fed. Cir. 1992) (e xplai n ing that “ the EEOC framework specifically provides for employees who suffer reprisal for the filing of [an] EEOC complaint”).

It was Payton’s burden to establish that the board had jurisdiction over her appeal. 5 C.F.R. § 1201.56(a)(2)(i); Campio n v. Merit Sys. Prot. Bd. , 326 F.3d 1210, 1213

- 14 (Fed. Cir. 2003); Stern v. Dep’t of the Army , 699 F.2d 1312,MARSHA PAYTON v. MSPB 4

1314 (Fed. Cir. 1983). Because Payton failed to make

non

- frivolous allegations that she had engaged in protec ted whistle

- blowing activities, the board correctly di smissed her appeal for lack of jurisdi c tion. See Kahn v. Dep’t of Justice , 528 F.3d 1336, 1341 (Fed. Cir. 2008) (“Non

- frivolous allegations [regarding disclosures protec ted under the WPA] cannot be suppor t ed by unsubstant iated speculati on in a pleading submi t ted by petitioner.” (citations and internal quotation marks omitted)).

We have considered the additional arguments pr esented in Payton’s informal appeal brief, but do not find them persuasive. Accordingly, we affirm the board’s orde r dismissing her appeal for lack of jurisdiction.

AFFIRMED