NOTE: This disposition is nonprecedential.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 

______________________

MARSHA L. PAYTON, of Holly Hill Florida, pro se. 

MICHAEL A. CARNEY, General Attorney, Office of the 

General Counsel, Merit Systems Protection Board, of 

Washington, DC, for respondent. With him on the brief 

were JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 

______________________
2 MARSHA PAYTON v. MSPB

Before RADER, Chief Judge, MAYER, and PROST, Circuit 

Judges.

PER CURIAM.

Marsha L. Payton appeals a final order of the Merit 

Systems Protection Board (“board”) dismissing her individual 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 for 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 protected whistle-blowing activities. As the board correctly 

determined, however, it had no jurisdiction over Payton’s 

appeal because she failed to make non-frivolous allegations that she made disclosures protected by the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. 

§ 2302(b)(8).

For individual right of action appeals, “the Board’s jurisdiction is established by nonfrivolous allegations that 

the [employee] made a protected disclosure that was a 

contributing factor to the personnel action taken or proposed.” Stoyanov v. Dep’t of the Navy, 474 F.3d 1377, 

1382 (Fed. Cir. 2007); see also Garcia v. Dep’t of Homeland 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 were 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 appeal 

with the board alleging that the 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 establishing board 

jurisdiction over an individual right of action appeal. 

This order instructed Payton to file a statement, accompanied by evidence, showing that the board had jurisdiction over her appeal. In response, Payton submitted a 

letter stating that she had “been in court for 7 years, at 

each level of court,” but that she had always been “remanded 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 letter 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 disclosures made by Payton. Thus, although Payton asserted 

before the board that her “protected Disclosure is Whistleblower,” 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 apparently filed with the Equal Employment Opportunity Commission (“EEOC”). The filing of an EEOC 

complaint, however, does not constitute a protected disclosure for purposes of the WPA. See Spruill v. Merit Sys. 

Prot. Bd., 978 F.2d 679, 692 n.17 (Fed. Cir. 1992) (explaining 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); 

Campion 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, 
4 MARSHA PAYTON v. MSPB

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

non-frivolous allegations that she had engaged in protected whistle-blowing activities, the board correctly dismissed her appeal for lack of jurisdiction. See Kahn v. 

Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) 

(“Non-frivolous allegations [regarding disclosures protected under the WPA] cannot be supported by unsubstantiated speculation in a pleading submitted by petitioner.” 

(citations and internal quotation marks omitted)).

We have considered the additional arguments presented in Payton’s informal appeal brief, but do not find 

them persuasive. Accordingly, we affirm the board’s order 

dismissing her appeal for lack of jurisdiction.

AFFIRMED