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 

 

04-3329 

RICHARD E. BUCKLEY, 

 Petitioner, 

v. 

SOCIAL SECURITY ADMINISTRATION, 

 Respondent. 

__________________________

 DECIDED: January 21, 2005 

__________________________

Before MICHEL, Chief Judge, SCHALL, and DYK, Circuit Judges. 

PER CURIAM. 

DECISION 

 Richard E. Buckley petitions for review of the final decision of the Merit 

Systems Protection Board (“Board”) that dismissed for lack of jurisdiction his 

Individual Right of Action (“IRA”) appeal. Buckley v. Social Sec. Admin., No. SE1221-03-0104-W-1 (M.S.P.B. Mar. 4, 2004). Mr. Buckley alleged that certain 

management personnel at the Social Security Administration (“SSA” or “agency”) 

retaliated against him for having engaged in whistleblowing activity, in violation of 
the Whistleblower Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103 Stat.

16 (1989) (codified at 5 U.S.C. § 2302(b)(8)). We affirm. 

DISCUSSION 

I. 

During the relevant period of time, Mr. Buckley was employed by the SSA 

as a GS-14 Assistant Regional Counsel in the Office of the General Counsel 

(“OGC”) for the agency’s Seattle Regional Office. Mr. Buckley filed his IRA 

appeal with the Board after the Office of Special Counsel (“OSC”) terminated its 

inquiry into his whistleblowing allegations without taking action. 

The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his administrative remedies before OSC and makes “non-frivolous”

allegations that (1) he engaged in whistleblowing activity by making a protected 

disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing 

factor in the agency’s decision whether to take a personnel action against him as

defined by 5 U.S.C. § 2302(a)(2)(A). Yunus v. Dep’t of Veterans Affairs, 242 

F.3d 1367, 1371 (Fed. Cir. 2001). Whether allegations are non-frivolous is

determined on the basis of the written record. Spencer v. Dep’t of the Navy, 327 

F.3d 1354, 1356 (Fed. Cir. 2003). 

Mr. Buckley asserted before OSC and the Board that he made a number

of protected disclosures that resulted in retaliatory personnel action being taken 

against him. Several of those alleged disclosures were the subject of an earlier

IRA appeal to the Board. In that appeal, following a hearing, the Board 

determined that Mr. Buckley had not established that he had made protected 

04-3329 2
disclosures or that he had been subjected to a retaliatory personnel action. It

therefore denied his request for corrective action. See Buckley v. Social Sec.

Admin., No. SE-1221-02-0402-W-1 (M.S.P.B. Apr. 21, 2003) (initial decision);

Buckley v. Social Sec. Admin., No. SE-1221-02-0402-W-1 (M.S.P.B. Jan. 21, 

2004) (order denying petition for review). We have today affirmed the decision of 

the Board in that earlier appeal. See Buckley v. Social Sec. Admin., No. 04-3232 

(Fed. Cir. Jan. 21, 2005). The Board in this case did not discuss the 

whistleblowing allegations made by Mr. Buckley in the earlier appeal. We follow 

suit and do not discuss them here. 

Before OSC and the Board in this case, Mr. Buckley did raise two 

additional whistleblowing allegations. First, he asserted, as a protected 

disclosure, that a draft of a brief to be submitted in the United States Court of 

Appeals for the Ninth Circuit had been improperly prepared by Christine Hendon,

Seattle OGC staff assistant. He asserted that this disclosure revealed “a 

violation of [] law, rule, or regulation, or gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and specific danger to public health 

or safety,” 5 U.S.C. § 2302(b)(8)(A)(ii). Second, Mr. Buckley’s asserted that a 

protected disclosure arose out of the following circumstances: Mr. Buckley 

stated that he instructed the OGC office staff and his supervisor, Lucille Meis, to 

contact him at his home while he was on annual leave, concerning any

developments in a discrimination case on which he was working. He also stated 

that the office staff did not follow his instructions and that, in his absence, Ms. 

Meis handled a discovery conference in the case. Mr. Buckley alleged that he 

04-3329 3
informed Ms. Meis that both events caused irreparable harm to the case. In an 

initial decision, the administrative judge (“AJ”) to whom the appeal was assigned 

rejected Mr. Buckley’s claim that he had made protected disclosures. Buckley v.

Social Sec. Admin., No. SE-1221-03-0104-W-1 (M.S.P.B. Jun. 20, 2003) (“Initial 

Decision”). The AJ stated: 

The alleged disclosures the appellant raised before the OSC 

in this appeal are mundane workplace conflicts and miscues. They

are a far cry from the type of serious allegations the WPA was

meant to protect. I find that the appellant has failed to make a nonfrivolous allegation that the disclosures he raised before the OSC 

constitute protected disclosures[.] 

Initial Decision, at 7. 

The AJ’s Initial Decision became the final decision of the Board on March 

4, 2004, after the Board denied Mr. Buckley’s petition for review for failure to 

meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). This appeal 

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

II. 

Our scope of review in an appeal from a decision of the Board is limited. 

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, 

capricious, an abuse of discretion or otherwise not in accordance with law;

obtained without procedures required by law, rule, or regulation having been 

followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see

Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 

1998). 

We agree with the Board that Mr. Buckley failed to make non-frivolous

allegations that the disclosures he raised before OSC and the Board constituted 

04-3329 4
protected disclosures. We have set forth above the disclosures that Mr. Buckley

made and upon which he relied as the basis for his two additional whistleblowing 

claims. The disclosures speak for themselves, and we see no error in the 

Board’s characterization of them. Finally, we have considered and found to be 

without merit Mr. Buckley’s claim that he was deprived of due process before the 

Board. 

For the foregoing reasons, the final decision of the Board dismissing Mr.

Buckley’s IRA appeal for lack of jurisdiction is affirmed. 

Each party shall bear its own costs. 

04-3329 5