R.g. v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
R.G.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF HOMELAND SECURITY,
Intervenor
______________________
2016-1079
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-15-0486-W-1.
______________________
Decided: August 9, 2016
______________________
R.G., pro se.
K ATRINA L EDERER , Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. P OLISUK.
REBECCA S ARAH K RUSER , Commercial Litigation
Branch, Civil Division, United States Department of

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R. G. v. MSPB 2
Justice, Washington, DC, for intervenor. Also represented
by BENJAMIN C. M IZER, ROBERT E. K IRSCHMAN, J R.,
P ATRICIA M. MC CARTHY .
______________________
Before N EWMAN, O’M ALLEY , and CHEN, Circuit Judges.
N EWMAN, Circuit Judge.
Petitioner R.G. seeks appellate review of the Merit
Systems Protection Board (MSPB) decision dismissing his
individual right of action (IRA) whistleblower appeal for
absence of jurisdiction.1 The MSPB held that the events
recited did not constitute whistleblowing; we affirm the
dismissal.
BACKGROUND
R.G. holds an excepted service position as a Federal
Air Marshal with the Department of Homeland Security.
At the beginning of his 2014 performance rating period,
again at the mid-year performance review, and again in
the third quarter, R.G. asked his immediate supervisor
what he must do to receive a rating of “Achieved Excel-
lence” for all performance criteria. R.G.’s supervisor
responded “I don’t know” on all three occasions. R.G.
reported these answers to his supervisor’s supervisor, by
letters of October 28, 2014 and December 2, 2014. R.G.
states that his final 2014 performance rating was artifi-
cially low because his immediate supervisor retaliated
against him because of these reports.
R.G. filed a complaint with the Office of Special Coun-
sel (OSC) alleging reprisal for whistleblowing and/or
protected activity. The OSC determined to close its file on
1 R.G. v. Dep’t of Homeland Sec., No. SF-1221-15-
0486-W-1 (M.S.P.B. Sept. 28, 2015) (“MSPB Final Order”).

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R. G. v. MSPB 3
March 25, 2015, stating that “[b]ased on our evaluation of
the relevant law and facts included in the information you
submitted, we have made a final determination to close
our file in this matter.” Letter from Julie Martin-Korb,
Attorney, Complaints Examining Unit of the U.S. Office
of Special Counsel, to R.G. (March 25, 2015) (“OSC Final
Determination Letter”). In accordance with the statute,
the OSC informed R.G. of his right to pursue an IRA
appeal with the MSPB. Letter from Julie Martin-Korb,
Attorney, Complaints Examining Unit of the U.S. Office
of Special Counsel, to R.G. accompanying OSC Final
Determination Letter (March 25, 2015). R.G. filed an IRA
appeal with the MSPB on July 6, 2015.
The MSPB administrative judge received testimony
and argument from R.G. and from the agency, and held
that R.G.’s complaints to his supervisor’s supervisor were
not protected disclosures or protected activity, and that
R.G. did not have a cause of action for whistleblowing.
The MSPB dismissed the complaint for lack of jurisdic-
tion. MSPB Final Order at 11. R.G. appealed to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Jurisdiction is a question of law, which we review de
novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). The MPSB’s jurisdiction includes
“[a]ppeals involving an allegation that the action was
based on appellant’s whistleblowing or other protected
activity.” 5 C.F.R. § 1201.3(b)(2); see 5 U.S.C. § 7701(a)(1)
(right to appeal from “any action which is appealable
under any law, rule, or regulation”); 5 U.S.C. § 1221(a)
(individual right of action for “any personnel action taken”
because of whistleblowing or other protected activity).
The employee must make a non-frivolous allegation
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

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R. G. v. MSPB 4
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). This court
has elaborated:
Specifically, the petitioner must establish by a
preponderance of the evidence the following four
elements: (1) the acting official has the authority
to take, recommend, or approve any personnel ac-
tion; (2) the aggrieved employee made a disclosure
protected under 5 U.S.C. § 2302(b)(8)(A); (3) the
acting official used his authority to take, or refuse
to take, a personnel action against the aggrieved
employee; and (4) the protected disclosure was a
contributing factor in the agency's personnel ac-
tion.
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir.
2010).
The whistleblower statute provides that a supervisor
may not take any personnel action with respect to an
employee because of:
(A) any disclosure of information by an employee
or applicant which the employee or applicant rea-
sonably believes evidences--
(i) any violation of any law, rule, or regu-
lation, or . . .
(ii) gross mismanagement, a gross waste
of funds, an abuse of authority, or a sub-
stantial and specific danger to public
health or safety,
if such disclosure is not specifically prohibited by
law and if such information is not specifically re-
quired by Executive order to be kept secret in the
interest of national defense or the conduct of for-
eign affairs. . .

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R. G. v. MSPB 5
5 U.S.C. § 2302(b)(8)(A). The inquiry is whether R.G. had
a reasonable belief that his report to his supervisor’s
supervisor met the definition in § 2302(b)(8)(A). The
inquiry is objective: “could a disinterested observer with
knowledge of the essential facts known to and readily
ascertainable by the employee reasonably conclude that
the actions of the government evidence” a violation of law,
rule, or regulation; gross mismanagement, or abuse of
authority. Lachance v. White, 174 F.3d 1378, 1381 (Fed.
Cir. 1999). “A purely subjective perspective of an employ-
ee is not sufficient even if shared by other employees.” Id.
R.G.’s asserted protected disclosure is his report of his
supervisor’s responses to his questions about how to
achieve a rating of “Achieved Excellence.” R.G. stated
that his report revealed a violation of TSA Management
Directive 1100.43-3, or alternatively, revealed gross
mismanagement or an abuse of authority. The Depart-
ment of Homeland Security responded that there was not
a reasonable belief that the report revealed a violation of
law, rule, or regulation, or gross mismanagement or an
abuse of authority. Thus the Department states that
R.G.’s report to his supervisor’s supervisor was not an act
of whistleblowing.
The MSPB reviewed the statutory criteria as follows
for whistleblowing acts: Gross mismanagement is “a
management action or inaction which creates a substan-
tial risk of significant adverse impact upon the agency’s
ability to accomplish its mission.” Kavanagh v. M.S.P.B.,
176 F. App’x 133, 135 (Fed. Cir. 2006) (quoting White v.
Dep’t of Air Force, 63 M.S.P.R. 90, 95 (1994)).
R.G. states that his supervisor’s inability to improve
his subordinate’s performance was gross mismanagement.
The Department of Homeland Security states that it
provides written performance standards in every “core
competency” area and “performance goal,” and that writ-
ten guidelines state the effect on the rating due to per-

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R. G. v. MSPB 6
forming above or below the performance standard. The
MSPB held that the supervisor’s inability or reluctance to
tell R.G. how to improve his performance is not the gross
mismanagement to which the whistleblower statute is
directed. Error has not been shown in this ruling.
R.G. also states that his reports revealed a violation of
TSA Management Directive No. 1100.43-3, which states,
in relevant part, that: “Rating officials are responsible for
. . . (4) Observing, coaching, and providing feedback to
employees.” R.G. states that his supervisor’s failure to
provide feedback constitutes a violation of “law, rule, or
regulation,” and thus that his report of this failure is
protected by the Whistleblower Protection Act.
On this appeal, the agency has agreed for the sake of
argument that Directive No. 1100.43-3 is a “rule” under
section 2302(b)(8)(A). The MSPB held, and we agree, that
this management flaw did not constitute a “violation of
the agency’s management directive” as contemplated by
the Whistleblower Protection Act, “especially when ac-
counting for the written standards provided in the per-
formance plan of which the appellant was aware.” MSPB
Final Order at 3.
R.G. also states that his supervisor’s inadequate re-
sponse constitute an abuse of authority. “An abuse of
authority requires an ‘arbitrary or capricious exercise of
power by a federal official or employee that adversely
affects the rights of any person or that results in personal
gain or advantage to himself or to preferred other per-
sons.’” Elkassir v. Gen. Servs. Admin., 257 F. App’x 326,
329 (Fed. Cir. 2007) (quoting D’Elia v. Dep’t of Treasury,
60 M.S.P.R. 226, 232 (1993), overruled on other grounds
by Thomas v. Dep’t of the Treasury, 77 M.S.P.R. 224
(1998)). R.G. argued that his rights were affected in that
he lost awards and/or in-position increases because of his
supervisor’s failure to advise how his performance might
achieve the excellence level.

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R. G. v. MSPB 7
The MSPB held that the supervisor’s answer to R.G.’s
question was not an “arbitrary or capricious exercise of
power,” and that no loss of rights or other retaliation had
been established. The MSPB explained that R.G. had not
established a right to receive an answer to his question, or
that his supervisor’s inadequate response resulted in
personal gain or advantage to herself or to others.” MSPB
Final Order at 4. The MSPB apparently did not view the
incidents as whistleblowing with adverse consequences.
Precedent supports this view. Frederick v. Dep’t of Jus-
tice, 73 F.3d 349, 353 (Fed. Cir. 1996), supplemented, 1996
WL 293120 (Fed. Cir. May 22, 1996) (“The WPA was
enacted to protect employees who report genuine infrac-
tions of law, not to encourage employees to report argua-
bly minor and inadvertent miscues occurring in the
conscientious carrying out of one’s assigned duties.”).
Although there were differences of opinion presented
to the MSPB, the MSPB held a hearing and observed the
witnesses. On the record before us, we do not discern
reversible error in the MSPB’s ruling of no violation of the
Whistleblower Protection Act.
AFFIRMED
No costs.

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