Payton v. Merit Systems Protection Board , 513 F. App'x 963 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARSHA L. PAYTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3212
______________________
Petition for Review of the Merit Systems Protection
Board in No. AT1221110957-W-1.
______________________
Decided: March 12, 2013
______________________
MARSHA L. PAYTON, of Holly Hill Florida, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
______________________
2 MARSHA PAYTON v. MSPB
Before RADER, Chief Judge, MAYER, and PROST, Circuit
Judges.
PER CURIAM.
Marsha L. Payton appeals a final order of the Merit
Systems Protection Board (“board”) dismissing her indi-
vidual right of action appeal for lack of jurisdiction. See
Payton v. Dep’t of Homeland Sec., 118 M.S.P.R. 422(2012). We affirm.
I.
This is Payton’s tenth appeal to this court. See Pay-
ton v. Dep’t of Homeland Sec., No. 2012-3193, 2013 U.S.
App. LEXIS 933 (Fed. Cir. Jan. 15, 2013) (describing
Payton’s previous petitions for review). In her current
appeal, Payton alleges that the Department of Homeland
Security failed to reinstate her to her former position as a
Management Program Specialist in retaliation for pro-
tected whistle-blowing activities. As the board correctly
determined, however, it had no jurisdiction over Payton’s
appeal because she failed to make non-frivolous allega-
tions that she made disclosures protected by the Whistle-
blower Protection Act of 1989 (“WPA”), 5 U.S.C.
§ 2302(b)(8).
For individual right of action appeals, “the Board’s ju-
risdiction is established by nonfrivolous allegations that
the [employee] made a protected disclosure that was a
contributing factor to the personnel action taken or pro-
posed.” Stoyanov v. Dep’t of the Navy, 474 F.3d 1377,
1382 (Fed. Cir. 2007); see also Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1325 (Fed. Cir. 2006) (en banc).
Thus, Payton “could establish a jurisdictional predicate
for her claims” only if she made “non-frivolous allegations
that: (1) her disclosures were within the purview of the
WPA, and (2) she suffered reprisal in the wake of these
disclosures.” Johnston v. Merit Sys. Prot. Bd., 518 F.3d
905, 909 (Fed. Cir. 2008).
MARSHA PAYTON v. MSPB 3
On September 20, 2011, Payton filed an initial appeal
with the board alleging that the Department of Homeland
Security had retaliated against her because she had
engaged in protected whistle-blowing activities. Shortly
thereafter, an administrative judge of the board issued an
order explaining the requirements for establishing board
jurisdiction over an individual right of action appeal.
This order instructed Payton to file a statement, accom-
panied by evidence, showing that the board had jurisdic-
tion over her appeal. In response, Payton submitted a
letter stating that she had “been in court for 7 years, at
each level of court,” but that she had always been “re-
manded back to the discriminating official.” Payton also
referenced a letter, dated August 2011, which she had
received from the Office of Special Counsel (“OSC”).
Although this letter stated that the OSC had “terminated
[its] inquiry into [Payton’s] allegations,” it did not contain
any substantive information about her complaint. The
letter did not point to any alleged whistle-blowing disclo-
sures made by Payton. Thus, although Payton asserted
before the board that her “protected Disclosure is Whis-
tleblower,” she failed to identify any specific statements
that could even arguably qualify for protection under the
WPA.
On appeal, Payton refers to several complaints that
she apparently filed with the Equal Employment Oppor-
tunity Commission (“EEOC”). The filing of an EEOC
complaint, however, does not constitute a protected dis-
closure for purposes of the WPA. See Spruill v. Merit Sys.
Prot. Bd., 978 F.2d 679, 692 n.17 (Fed. Cir. 1992) (ex-
plaining that “the EEOC framework specifically provides
for employees who suffer reprisal for the filing of [an]
EEOC complaint”).
It was Payton’s burden to establish that the board had
jurisdiction over her appeal. 5 C.F.R. § 1201.56(a)(2)(i);
Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213-14
(Fed. Cir. 2003); Stern v. Dep’t of the Army, 699 F.2d 1312,
4 MARSHA PAYTON v. MSPB
1314 (Fed. Cir. 1983). Because Payton failed to make
non-frivolous allegations that she had engaged in protect-
ed whistle-blowing activities, the board correctly dis-
missed her appeal for lack of jurisdiction. See Kahn v.
Dep’t of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008)
(“Non-frivolous allegations [regarding disclosures protect-
ed under the WPA] cannot be supported by unsubstanti-
ated speculation in a pleading submitted by petitioner.”
(citations and internal quotation marks omitted)).
We have considered the additional arguments pre-
sented in Payton’s informal appeal brief, but do not find
them persuasive. Accordingly, we affirm the board’s order
dismissing her appeal for lack of jurisdiction.
AFFIRMED