NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

06-3287 HARRY M. SCHMITT, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent, and DEPARTMENT OF THE NAVY, Intervenor.

__________________ _________ DECIDED: December 6, 2006

__________________ _________ Before MAYER, RADER, and GAJARSA, Circuit Judges

. RADER, Circuit Judge

. The Merit Systems Protection Board (B oard) dismissed Harry M. Schmitt’s Individual Right of Action (IRA) appeal because he did not allege that his protected disclosure was a contributing factor in any adverse agency action. Schmitt v. Dep’t of Navy , No. AT-1221-05-0958-W-1 (M SPB Dec. 30, 2005). Finding no reversible error, this court affirms

.I On Decem ber 12, 2003, Mr. Schmitt re signed from his pos i tion as a GS-12 Electronics Engineer at the Naval Ordinance Test Unit (NOTU). His resignation wa s part of a settlement agreement for Equal Employment Opportunity (EEO) complaint s filed in F e bruary and J u ly 20 02. By the express langu age of the settlement agreement, Mr. Schmitt released the Navy “from any and al l liability from all claims alleged in , arising out of, or related to the above capt ioned c a se(s) [the EEO complaints] and all matters of dissatisfaction regarding his empl oyment wit h the agency, through the date of this agreement.” Further, Mr. Schmitt agreed t hat all “claims/complaints at any stage of processing are hereby withdraw n and complainant’s right to fil e complaints for any matter through the date of the agreement is waived.” Despite having waived all claim s th rough December 12, 2003, Mr. Schmitt complained to the Offi ce of Special Counsel (OSC). On September 12, 2005, the OSC sent Mr. Schmitt a letter reminding him of t he terms of the settlemen t. This letter fu rthe r noted that the new complaint did not assert any new issue within t h e Board’s jurisdiction. Absent a new issue, the OSC did not plan further action on the complain t. Before closing the file, however, OSC prov ided Mr. Schmitt sixteen days to supplement the record. Instead of supplementing the record to the OSC, on September 15, 2005, Mr. Schmitt filed an Individual Right of Action (IRA) under the Whistleblower Protection Act (WPA) alleging the Navy had ta ken an undetermined personnel action against him in reprisal for whistleblowing activ i ties. Mr . S c hmitt attached the OSC’s September 12, 2005 letter to his IRA. On November 23, 2 005, the Board issued an Order warning Mr.

06-3287 2Schmitt that the OSC had not yet terminated it s investigation an d that Mr. Schmitt had not identified a personnel action allegedly t a ken against hi m by the Navy. The Order further required Mr. Schmitt to submit within seven days ev idence that he had exhausted his remedies befor e the OSC and had m ade a nonfrivolous allegatio n of whistleblowing activity. Mr. Schmitt did not respond to the No vember 23, 2005 Order on time. On December 12, 2005, December 20, 2005, and December 22, 2005, Mr. Schmi tt submitted documents related to his earlier EEO complaints . On December 30, 2005, the Board dismissed Mr. Schmitt’s appeal for lack of juri sdiction.
II Whether the Board has jurisdiction to adjudi cate a particular appeal is a question of law, which this c o u r t reviews de nov o

. Herman v. Dep’t of Justice , 193 F.3d 1375, 1378 (Fed. Cir. 1999 ) ; Middleton v. Dep’t of Defense , 185 F.3d 1374, 1379 (Fed. Cir. 1999). Mr. Schmitt has the burden of estab lis hing jurisdiction before the Board by a preponderance of the evidenc e. 5 C.F.R. § 1201. 56(a)(2) (2006); Clark v. United State s Postal Serv

. , 989 F.2d 1164, 1167 (Fed. Cir. 1993). The Board may grant a petition for review based on new and material ev idenc e that, despite due diligence, was not avail able when the record closed. 5 C.F.R. § 1201.115(d)(1). However, the Board only has jurisdiction ov e r an IRA appeal if the appellant has exhausted all administrative remedies be fore the OSC and made “nonfrivolous allegations” that: (1) he engaged in whistleblo wing activity by making a protected disclos ure under 5 U.S.C. § 2302(b)(8), and (2) the disclos ure was a contributing factor in the Agenc y ' s decis ion to take or fail to take a personnel action a s

06-3287 3defined by 5 U.S. C. § 2302(a). Yunus v. Dep’t of Veter ans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). Under the WPA, protected disclos ures include “any dis c losure of information by an em ployee or applicant which the employee or applicant reasonably believes evidences (i) a violat ion of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abus e of authority, or a subs tantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). Mr. Schmitt did not timely respond to the Board’s November 23, 2005 Order. Further, even had Mr. Schmitt’s submissions been timely, the Board found Mr. Schmitt’s submissions did not establish a nonfrivolous allegation of prot ected disc losures that were a contributing factor in an agency ac tion against him. Indeed, because Mr. Schmitt’s submissions relate entirely to hi s earlier EEO complaints, their use has been waive d

. Lastly, in his appeal to this court, Mr. Sc hmitt for the first ti me asserts sexual harassment and hostile workplac e allegations. As these issues were never considered by the Board, they are not properly before thi s court. For the foregoing reasons, this court affi rms the decision of the Board to dismiss Mr. Schmitt’s appeal for lack of juri sdiction.

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