N OTE : This disposition is nonprecedential. 

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

______________________ FAYE RENNELL HOBSON, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

______________________

2021

- 1693

______________________ Petition for review of the Merit Systems Protection Board in No. CH

- 1221

- 20

- 0604 -W- 1.

______________________

Decided: March 21, 2022

______________________

F AYE R ENNELL H OBSON , Clarksville, TN, pro se.

K

ATRINA L EDERER , Office of the General Counsel,United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by T RISTAN L. L EAVITT , K ATHERINE M ICHELLE S MITH

.

______________________

P ER C URIAM

. Case: 21-1693 Document: 40 Page: 1 Filed: 03/21/2022HOBSON v. MSPB 2

Faye R. Hobson appeals the Merit Systems Protection Board’s dismissal of her Individual Right of Action appeal under the Whistleblower Protection Act and Whistleblower Protection Enhancement Act for lack of jurisdiction . The Board found Mrs. Hobson failed to make a non

- frivolous allegation that her protected activity was a contributing factor to personnel ( retaliatory ) action taken against her

. We affirm.

B ACKGROUND
The Whistleblower Protection Act (“WPA”) and Whistleblower Protection Enhancement Act (“WPEA”) 1 prohibitan agency from taking personnel action against an employee for disclosing information that the employee reasonably believes evidences a violation of law, rule, or regulation; gross m ismanagement; a gross waste of funds ; an abuse of authority; or a substantial and specific danger to public health or safety. See Chambers v. Dep ’t of the Interior , 602 F. 3d 1370, 1375

– 76 (Fed. Cir. 2010) (citing 5 U.S.C. § 2302(b)(8)). To report a whistleblower violation

, a n employee may file a complaint with the Office of Special Counsel (“OSC”)

. See Cahill v. Merit Sys. Prot

. Bd. , 821 F.3d 1370, 1373 (Fed. Cir. 2016). I f no action is taken by the OSC

, the employee may file an Individ ual Right of Action (“IRA”) appeal before the Merit Systems Protection Board (the “ Board”). See id.
Appellant Faye R. Hobson worked for the Department of Defense

, Education Activity (“ Defense Ed ”) beginning in 2002. Appx

. 236

. 2 In 2005, Mrs. Hobson’s military spouse

1 The WPA of 1989 provides the general framework of the whistleblower protection process. In 2012, t he WPEA made amendments to the existing framework

. 2 “Appx.” refers to the appendix submitted with Appellant’s Opening Brief. For the sake of clarity, the cited Case: 21-1693 Document: 40 Page: 2 Filed: 03/21/2022HOBSON v. MSPB 3

was assigned to duty at Fort Campbell, Kentucky . That year, M rs. Hobson accepted a position as a Special Education Teacher at Barkley Elementary School in Fort Campbell

. Id. After reviewing student files

, Mrs. Hobson discovered what she believed were improper special education practices at th e elementary school for the 2005

– 2006 school year

. 3 Appx. 61. Mrs. Hobson disclosed the improper practices to the Assistant Principal, the Special Edu cation Coordinator, the Community Superintendent, and the Fort Campbell Schools Superintendent. Appx. 237.

Mrs. Hobson subsequently applied for eight teaching positions during 2012 and 2014 but was not selected

. Appx. 61. In December 2014, Mrs. Hobson filed a complaint with the OSC alleging that Defense Ed retaliated against her for disclosing the improper practices. Appx. 238. The OSC closed her case without taking action

. She then filed an IRA appeal before the Board

. Id. In September 2016, the Board determined that Mrs. Hobson had made a protected disclosure but denied her claim on grounds that she failed to make a non -frivolous allegation that th e disclosure was a contributing factor in the decision by Defense Ed not to sele ct her for a teaching position

. Appx. 235

– 36. In August 2019, Mrs. Hobson filed a second whistleblower complaint with the OSC. Appx. 96

– 108. Mrs. Hobson asserted that she faced retaliation for her prior disclosure of the improper practices and for certain other protected activity, including her previous IRA appeal ; serving as a witness in another Board hearing ; and filing a

p age numbe rs refer to the page numbers included in the electronic stamp at the top of the page.

3 According to Mrs. Hobson, t he elementary school violated federal and state special education funding requirements regarding services provided and student record mainte nance. Appx. 236

– 37 , 241

– 42

. Case: 21-1693 Document: 40 Page: 3 Filed: 03/21/2022HOBSON v. MSPB 4

complaint in federal court. Appx

. 102

– 03. Mrs. Hobson alleged her non

- selection for teach ing positions as retaliatory action

. Appx. 99

. Specifically, Mrs. Hobson identified the Fort Campbell Middle School Principal (the “Principal”) as the official responsible for the retaliation , b ut she did not allege that the Principal was aware of her protected activity

. Id

. Her complaint stated that she is a “known whistleblower” but did not explain who kn e w her as a whistleblower or how they kn e w she is a whistleblower. Id. The OSC asked Mrs. Hobson to explain how the selecting officials knew abo ut her protected activity. Appx. 124. Mrs. Hobson responded by reiterating her allegations of retaliatory activity but did not provide further explanation. Appx. 113

– 18. In June 2020, the OSC determined Mrs. Hobson’s activity was whistleblower protect ed activity

, but it closed her claim on grounds that she failed to allege that her protected activity was a contributing factor in the personnel decision not to hire her

. Appx. 120, 123

– 25.

Mrs. Hobson appealed the OSC’s decision to the Board

. Appx. 60. T he Board issued an “Order on Jurisdiction and Proof Requirements” (“Jurisdiction Order”). Appx. 164

– 71. The Jurisdiction Order advised Mrs. Hobson on the requirements for establishing jurisdiction and provided instructions. Appx

. 165

– 69. As a result, Mrs. Hobson submitted supplemental filings to the Board , including communications with the OSC

. Appx. 62

. The Board reviewed Mrs. Hobson’s supplemental filings and dismissed her appeal for lack of jurisdiction. Appx. 6 0– 62

. The Board explained that Mrs. Hobson’s appeal addressed only one of the non

- selections at issue

— a Fort Campbell Middle School English position. Appx. 64 –66 . The Board further determined that because Mrs. Hobson did not allege that her protected activity was a contributing factor in her non -selection for th at position, she failed to make a non

- frivolous allegation as required under the WPA

. Appx. 66 –69

. Accordingly, the Board Case: 21-1693 Document: 40 Page: 4 Filed: 03/21/2022HOBSON v. MSPB 5

found that it lacked jurisdiction over Mrs. Hobson’s appeal and dismissed the appeal.

Mrs. Hobson timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9)

. S TANDARD OF R EVIEW
Whether the Board has j urisdiction is a question of law that this court revie ws de novo. Kerrigan v. Merit Sys. Prot. Bd.

, 833 F.3d 1349, 1353 (Fed. Cir. 2016) (citing Herman v. Dep’t of Justice , 193 F.3d 1375, 1378 (Fed. Cir. 1999)).

D ISCUSSION

T he Board has jurisdiction over an IRA appeal provided that the appellant makes “non

- frivolous allegations” of whistleblowing activity . A non

- frivolous allegation is one that alleges a protected disclosure or activity and that the protected disclosure or a ctivity “was a contributing factor in the agency’s decision to take or fail to take a personnel action.” Hessami v. Merit Sys. Prot. Bd. , 979 F.3d 1362, 1367 (Fed. Cir. 2020).
It is not disputed that Mrs. Hobson engaged in protected activit y

. We agree

. We next examine whether Mrs. Hobson ma d e a non

- frivolous allegation that her protected activity was a contributing factor to the alleged personnel action.

To demonstrate that the protect ed activity was a contributing factor to the personnel action, the appellant may allege that “the official taking the personnel action knew of the disclosure o r protected activity” and “the personnel action occurred within a period of time such that a reasonableperson could conclude that the disclosure or protected activity was a contributing factor in the personnel action.” 5 U.S.C. § 1221(e)(1).
Here, Mrs. Hobson does not make a non

- frivolous allegation that her protected activity was a contributing factor Case: 21-1693 Document: 40 Page: 5 Filed: 03/21/2022HOBSON v. MSPB 6

to the personnel action, the alleged retaliation. Throughout the filings and communications with the OSC

, Mrs. Hobson fails to allege that the Principal or anyone else knew of her protected activity

. Accordingly, we determine that Mrs. Hobson has failed to make a non -frivolous allegation that her prote cted activity contributed to her

non

- selection for the Middle School position. As such, we affirm the Board’s determination that it lacks jurisdictio n.
C ONCLUSION

Mrs. Hobson demonstrated she engaged in protected activity . But to establish Board jurisdiction, Mrs. Hobson
must allege that official(s) responsible for alleged personnel action knew of her protected activity . Because Mrs. Hobson d id not allege that the Principal was aware of the whistleblower activity

, Mrs. Hobson failed to establish Board jurisdiction over her IRA appeal. Accordingly , we affirm.

AFFIRMED

C OSTS

No c osts. Case: 21-1693 Document: 40 Page: 6 Filed: 03/21/2022