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 di smissed 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 Secu rity Administration (“SSA” or “agency”) retaliated against him for having engaged in wh istleblowing activity, in violation ofthe 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

. DISCUSSI ON
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 Sea ttle Regional Office. Mr. Buckley filed his IRA appeal with the Boar d after the Office of Special Counsel (“OSC”) terminated its inquiry into his whistleblowing a llegations without taking action. The Board has jurisdiction ov er an IRA appeal if the appellant has exhausted his administrative remedies before OSC and makes “non-frivolous” allegations that (1) he enga ged in whistleblowing activ i ty by making a protected disclos ure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s decis ion whether to take a pers onnel 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 bas i s of the wr itten 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 disclos ures t hat resulted in ret a liatory per sonnel action being taken against him. Several of those alleged di sc losures were the subject of an earlier IRA appeal to the Board. In that appeal, following a hearin g, the Board determined that Mr. Buckley had not established t hat he had made protected

04-3329 2disclos ures or that he had been subjected to a retaliatory personnel actio n . It therefore denied his r equest 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. Soc i al Se c. 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 m ade by Mr. Buckley in the earlier appeal. We follo w suit and do not discuss them here. Before OSC and the Board in this case, Mr. Buckley did r a ise two additional whistleblowing allegations. Fir s t, he asserted, as a protected disclos ure, that a draft of a brief to be submitted in the Unit ed States Court of Appeals for the Ninth Circu it had been improperly prepared by Ch ristine Hendon, Seattle OGC staff assistan t. He asser t ed that this disc los u re revealed “a violation of [] law, rule, or regulation, or gross mi smanagement, a gross waste of funds, an abuse of aut hority, or a subst antial and spec ific danger to public he alth or safety,” 5 U.S.C. § 2302(b)(8)(A)(ii). Second, Mr. Buckley ’s asserted that a protected disclos ure arose out of the following circ umstances: Mr. Buckley stated that he instructed the OGC office st aff and his s upervisor, Lucille Meis, to contact him at his home while he wa s on annual leav e, concerning any developments in a dis c rimination case on wh ich he was working. He also st ated that the office staff did not follow his instructions and that, in his abs ence, Ms. Meis handled a discovery conference in th e case. M r . Buckley alleged that he

04-3329 3informed Ms. Meis that both events caused irreparable harm to the case. In an initial decis i on, the administrative judge (“A J ”) to whom the appeal was assigned rejected Mr. Buckley’s claim that he had made protected disclosur es. Buckley v. Socia l Sec. Admin. , No. SE-1221-03-0104-W-1 (M.S.P.B. Jun. 20, 2003) (“ Initia l Decis i on ”). The AJ stated: The alleged disclosures the app ellant raised before the OSC in this appeal are mundane workplace conf licts 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 disc losures he raised b e fore the OSC constitute protected disclosures[.] Initial Dec i s i on , at 7. The AJ ’s Initial Dec i sion became the final decision of the Board on March 4, 2004, after the Board denied Mr. Buckley ’s petition for review for failur e to meet the criteria for review set forth at 5 C.F.R. § 1201. 115(d). This appeal followed. We have jurisdiction pu rsuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the B oard is limited. Specifica lly , we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion or ot herwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by subst antial evidenc e. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human Serv s. , 153 F.3d 1357, 1361 (Fed. Cir. 1998). We agree with the Board that Mr. Buckley failed to make non-frivolous allegations that the disclos ures he raised before OSC and the Board constituted

04-3329 4protected disclosures. We have set fort h above the disclosures that Mr. Buckley made and upon which he relied as the basis for his two additiona l whistleblowing claims. T he disc los u res speak for them selves, and we see no error in the Board’s characterization of them. Fi nally, we have considered and found to be without merit Mr. Buckley’s c l aim that he was deprived of due pr oc ess before the Board. For the foregoing reasons, the final decis ion of the B oard dismissing Mr. Buckley ’s IRA appeal for lack of jurisdiction is affirmed. Each party shall bear its own costs.

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