NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

KEVIN J. REARDON, 

Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

__________________________ 

2009-3268 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in DC1221090361-W-1. 

___________________________ 

Decided: June 21, 2010 

___________________________ 

ADAM AUGUSTINE CARTER, The Employment Law 

Group, P.C., of Washington, DC, argued for petitioner. 

With him on the brief was R. SCOTT OSWALD. 

MATTHEW H. SOLOMSON, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, TODD M.
REARDON v. DHS 2

HUGHES, Deputy Director, and LAUREN A. WEEMAN, Trial 

Attorney. 

__________________________ 

Before BRYSON, DYK, and PROST, Circuit Judges. 

PER CURIAM. 

Kevin J. Reardon (“Reardon”) petitions for review of a 

final order of the Merit Systems Protection Board 

(“MSPB” or “Board”) dismissing the appeal of his removal. 

Reardon v. Dep’t of Homeland Sec., No. DC-1221-09-0361-

W-1 (M.S.P.B. Aug. 5, 2009). The Board found that 

Reardon failed to make a nonfrivolous allegation that he 

engaged in a protected activity under the Whistleblower 

Protection Act (“WPA”). See Reardon v. Dep’t of Homeland Sec., No. DC-1221-09-0361-W-1, slip op. at 8 

(M.S.P.B. Apr. 15, 2009) (“Initial Decision”). We affirm. 

BACKGROUND

On October 25, 2008, Reardon’s appointment to the 

Deputy Assistant Secretary position was terminated 

within the one-year probationary period for performancebased reasons. Because he was removed during his 

probationary period, Reardon could not appeal his removal to the MSPB. See 5 C.F.R. § 359.407; see also id.

§ 359.402. On November 6, 2008, Reardon filed a complaint with the Office of Special Counsel (“OSC”) alleging 

that he was terminated from his position in reprisal for 

making protected disclosures under the WPA. Reardon 

specifically identified two disclosures: (1) an October 3, 

2008, disclosure to his supervisor, Robert Stephan 

(“Stephan”), that the Under Secretary of the National 

Protection and Programs Directorate (“NPPD”), Robert 

Jamison (“Jamison”), was allegedly interfering with and 

attempting to influence the performance management 
3 REARDON v. DHS

process by requesting preliminary performance ratings 

from first-line supervisors, and (2) a late-June/early-July 

2008 disclosure to Jamison reporting the “irrational and 

hostile work environment” allegedly created by Stephan 

by ordering Reardon to stay away from certain matters 

and limit attendance to only certain meetings, see Initial 

Decision, slip op. at 7, in order to obstruct Reardon’s right 

to compete for employment and coerce him to resign in 

contravention of 5 U.S.C. § 2302(b)(4) and (5). OSC 

terminated its investigation on January 6, 2009, and 

informed Reardon of his right to seek corrective action 

from the MSPB. 

On March 5, 2009, Reardon filed his individual right 

of action (“IRA”) appeal with the MSPB. On March 11, 

2009, the Administrative Judge (“AJ”) issued an order to 

show cause, requiring Reardon to provide evidence and 

argument to demonstrate that his appeal was within the 

Board’s jurisdiction. “[T]he Board has jurisdiction over an 

IRA appeal if the appellant has exhausted his administrative remedies before the 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 to take or fail to take a 

personnel action as defined by 5 U.S.C. § 2302(a).” Yunus 

v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 

2001). A protected disclosure under 5 U.S.C. § 2302(b)(8) 

is “any disclosure of information by an employee . . . 

which the employee . . . reasonably believes evidences—(i) 

a violation of any law, rule, or regulation, or (ii) 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). 
REARDON v. DHS 4

In an April 15, 2009, initial decision, the AJ held that 

Reardon failed to make a nonfrivolous allegation that he 

had engaged in protected whistleblowing activity. With 

regard to Reardon’s October 3, 2008, disclosure, the AJ 

found that none of the statutes or regulations cited by 

Reardon precluded Jamison from requesting advance 

information about employee performance reviews. With 

regard to Reardon’s June/July 2008 disclosure, the AJ 

found that the disclosure merely reflected a policy disagreement about Reardon’s duties that was “debatable 

among reasonable people,” and therefore was not a protected disclosure. Initial Decision, slip op. at 7. 

Reardon filed a petition for review with the full 

Board, which was denied, making the initial decision of 

the AJ the final decision of the Board. Reardon timely 

appealed. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9). Following oral argument, we issued a letter 

order requesting the government to submit for consideration “the governing regulations or manual specifying the 

procedures under which employee performance evaluations at the National Protection and Programs Directorate of the Department of Homeland Security were 

conducted during the October 2008 appraisal period.” 

Reardon v. Dep’t of Homeland Sec., No. 2009-3268 (Fed. 

Cir. May 10, 2010) (letter order). On June 16, 2010, 

Reardon filed a response to the government’s submission. 

DISCUSSION

Whether the Board has jurisdiction to adjudicate an 

appeal is a question of law, which we review de novo. 

Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. 

Cir. 2008). 
5 REARDON v. DHS

Reardon argues that the Board erred in finding that 

he failed to make a nonfrivolous allegation that he engaged in protected whistleblowing. “The standard for 

determining whether non-frivolous disclosures exist ‘is 

analogous to that for summary judgment.’ ‘[T]he petitioner must show the existence of a material fact issue . . . 

to support Board jurisdiction. Non-frivolous allegations 

cannot be supported by unsubstantiated speculation in a 

pleading submitted by petitioner.’” Kahn v. Dep’t of 

Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008) (citation 

omitted) (quoting Dorrall v. Dep’t of the Army, 301 F.3d 

1375, 1380 (Fed. Cir. 2002), overruled on other grounds by

Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 

2006)). 

We conclude that the Board did not err in dismissing 

Reardon’s IRA appeal for lack of jurisdiction. There was 

no evidence that the disclosures asserted by Reardon 

could reasonably be thought to evidence a violation of law, 

rule, or regulation; gross mismanagement; or abuse of 

authority. With regard to the October 3, 2008, disclosure, 

none of the statutes or regulations governing performance 

evaluations contains any provision that would have 

precluded Jamison from requesting preliminary performance reviews from the supervisors reporting to him. Nor 

do the Department of Homeland Security Management 

Directives governing employee performance reviews 

contain any such prohibition. See Dep’t of Homeland Sec., 

MD No. 3180, Senior Executive Service Performance 

Management (n.d.); Dep’t of Homeland Sec., MD No. 

3181, Performance Management (2006). Jamison was 

thus not precluded from requesting preliminary performance reviews. In his response, Reardon speculates that 

there may be other governing directives that the government did not supply to this court, and that discovery 

should be allowed. But in order to establish jurisdiction, 
REARDON v. DHS 6

Reardon was obligated to provide evidence to the Board 

that he had sufficient information to form a reasonable 

belief that a law, rule, or regulation had been violated, or 

that gross management or an abuse of authority had 

occurred. That he has not done. Any allegation that 

Jamison was attempting to improperly interfere or influence the performance review process by requesting preliminary performance reviews can only be described as 

unsubstantiated speculation. 

Also, Reardon’s June/July 2008 disclosure cannot reasonably be viewed as anything more than a disagreement 

with Stephan over legitimate managerial decisions such 

as what matters to work on and what meetings to attend. 

Finally, Reardon argues on appeal that he made a 

third protected disclosure, also addressing Stephan’s 

actions, on October 1, 2008, which the Board failed to 

address. However, this disclosure was not properly raised 

before either the OSC or the MSPB, and Reardon has 

therefore waived this issue. See Bosley v. Merit Sys. Prot. 

Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). 

For the aforementioned reasons, we affirm. 

AFFIRMED 

COSTS

No costs.