N OTE : This disposition is nonprecedential. 

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

__________________________ SUSAN M. BARELA, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________________

2010-3048

__________________________ Petition for review of the Merit Systems Protection Board in case No. DC1221090641-W-1.

___________________________

Decided: July 13, 2010

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S USAN M. B ARELA , of Fairfax, Virginia, pro se.

M ICHAEL A. C ARNEY , General Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent . With him on the brief were J AMES M. E ISENMAN , General Counsel, and K EISHA D AWN B ELL , Deputy General Counsel.

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Before L OURIE , B RYSON , and G AJARSA , Circuit Judges

.BARELA v. MSPB 2

P ER C URIAM

.

D ECISION

Susan M. Barela challenges the decision of the Merit Systems Protection Board dismissing her Individual Right of Action (“IRA”) appeal. We affirm.

B ACKGROUND

On June 18, 2009, Ms. Bare la filed an IRA appeal under 5 U.S.C. § 1221 and reques ted relief under the Whistleblower Protection Act (“WPA”), 5 U.S.C. §§ 1221(e), 2302(b)(8). In her appeal, Ms . Barela alleged that the Department of Defense took a personnel action againsther in June 1991. Ms. Barela also stated that she submitted a request to the Office of Special Counsel (“OSC”) on June 15, 2009, but that as of June 18, 2009, she had not received written notice of her right to appeal. As to her alleged whistleblowing disclosu res, Ms. Barela appears to claim that she made disclosure s with respect to (1) allegedly inappropriate action taken by an administrative judge during a prior appeal, as found in the record of that case, and (2) allegedly inappropriate action taken by various military members, employees, and contractors as described in “past submissions, pending submissions, [and] future submissions” for the time period from 1991 through the year 2050. In her IRA appeal, Ms. Barela also stated that, on June 15, 2009, she requested that the Board stay the personnel action underlying her claim. When asked to explain why a st ay should be granted, Ms. Barela stated, “See Previous Submissions/Whistleblower Appeal/Board Record/Pending Submissions etc., from 1991-2050.”BARELA v. MSPB 3

On July 8, 2009, the admi nistrative judge who was assigned to the case dismi ssed Ms. Barela’s appeal for lack of jurisdiction. The a dministrative judge first noted that Ms. Barela failed to respond to a “show cause” order directing her to file evidence and argument to establish that the Board had jurisdiction over her IRA appeal. The administrative judge then held that the Board lacked jurisdiction over Ms. Barela ’s appeal on the following grounds: (1) Ms. Barela “fa iled to exhaust her remedies before the OSC”; (2) she “failed to make a nonfrivolous allegation that she made a protected whistleblowing disclosure”; and (3) she “failed to make a nonfrivolous allegation that a protected wh istleblowing disclosure was a contributing factor in any personnel action covered by the WPA.” The administrative judge denied her requestfor a stay of the personnel action underlying her whistleblower claim for similar reasons. The full Board denied Ms. Barela’s petition for review, and Ms. Barela now petitions for review by this court.

D ISCUSSION

Based on the record and on Ms. Barela’s informal brief, it appears that Ms. Barela seeks to use this IRA appeal to review decisions made in prior cases that she has brought. However, 5 U.S.C. § 1221 does not authorizean appellant to challenge prior decisions that have become final. Because the Board has jurisdiction only where jurisdiction is specific ally granted by statute or regulation, see Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en banc), the Board correctly dismissed Ms. Barela’s IRA appeal.

To the extent that Ms. Bare la seeks corrective action in response to a violation of the WPA, the Board properly determined that it lacked jurisdiction over Ms. Barela’sBARELA v. MSPB 4

appeal. First, the Board did not err in ruling that Ms. Barela failed to show that she exhausted her remedies before the OSC, because Ms. Barela produced no evidence or argument on that issue. See Pasley v. Dep’t of the Treasury , 109 M.S.P.R. 105, 112 ( 2008) (“The appellantbears the burden of showing that he exhausted his remedies before [the] OSC.”). In particular, 5 U.S.C. § 1214(a)(3) permits an IRA appellant to file an IRA appeal with the Board in two situations: (1) within 60 days after receiving notice from the OSC that it has completed its investigation, or (2) after 120 days from the date that the IRA appellant sought corrective action from the OSC if the OSC has not informed the appellant that it will seek corrective action on the appe llant’s behalf. Ms. Barela represented that she had not re ceived notice that the OSC had completed its investigation and that she filed her IRA appeal three days after submitting her complaint to the OSC. Because it appears that Ms. Barela did not satisfy either requirement of section 1214(a)(3), the Board was correct to dismiss her appeal for failure to exhaust her administrative remedies.

Second, the Board correctly concluded that Ms. Barela failed to make a nonfrivolous allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8). See Kahn v. Dep’t of Justice , 528 F.3d 1336, 1341 (Fed. Cir. 2008). The statements in he r IRA appeal concerning heralleged disclosures are inadequate to establish jurisdiction because they are vague, conclusory, and unsupported by any evidentiary allegations. See McDonnell v. Dep’t of Agric. , 108 M.S.P.R. 443, 447 (2008).

Third, the Board properly held that Ms. Barela failedto make a nonfrivolous allegation that a protected disclosure was a contributing factor in the agency’s decision to take a personnel action against her. See Kahn , 528 F.3dBARELA v. MSPB 5

at 1341. Even at this junc ture, it is unclear how Ms. Barela regards any protected disclosure that she may have made to be related to some qualifying personnel action taken against her by the agency.

Because Ms. Barela failed, on multiple grounds, to establish the Board’s jurisdiction over her IRA appeal, we uphold the Board’s decision.

AFFIRMED