Sheila A. Bloom petitions for review of the dismissal by the Merit Systems Protection Board (“MSPB” or “Board”) of her Individual Right of Action (“IRA”) appeal for lack of jurisdiction.
Bloom v. Army,
DC-1221-05-0024-B-1,
*954 I. BACKGROUND
Bloom has been employed by the United States Army Corps of Engineers (USACE) since 1986. Between 1996 and 1999, she served as a manager for the “Spring Valley” project in the Formerly Used Defense Sites Program. From 1999 and until 2001 Bloom was assigned to the U.S. Army Engineer District in Baltimore, Maryland. From 2002 until her retirement she worked in the Directorate of Strategy & Integration, Planning & Strategy Division in Washington, D.C.
In January 2004 Bloom filed a complaint with the Office of the Special Counsel (“OSC”) alleging that she suffered reprisals in violation of the Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302, as a result of protected disclosures she made in connection with the “Spring Valley” project. Bloom alleged that she made four such disclosures: (1) between 1996 and 1999 she notified “senior leaders” in the Baltimore district office that the project was “seriously flawed,” (2) in 2001 she informed the “Spring Valley team” that there were “major issues related to the project,” (3) in 2002 she disclosed to Jane Mahoney, an attorney in the Justice Department, her “many concerns” about the project, and (4) in 2003 she informed Lieutenant Colonel Elliott and Lieutenant Colonel James of the USACE Inspector General’s Office that she was being retaliated against for her whistleblowing on the “Spring Valley” project. In her OSC complaint, Bloom alleged that these disclosures resulted in ten specific reprisals by supervisors in the Directorate of Strategy & Integration between 2003 and 2004:(1) a letter of reprimand, (2) a charge of 3.75 hours of absence without leave, (3) refusal to change her job title from Facilitator to Strategic Planner, (4) denial of a request for reassignment, (5) referral to the Employee Assistance program, (6) move to a new workstation, (7) denial of a request to attend facilitators’ training, (8) denial of the opportunity to facilitate some meetings and workshops, (9) denial of a request for advance sick leave, and (10) a proposed 30-day suspension.
The OSC terminated its investigation into Bloom’s complaint without taking any action and Bloom filed a timely IRA appeal with the MSPB pursuant to 5 U.S.C. § 1221(a). The Board vacated and remanded an initial ruling of the Administrative Judge (“AJ”) dismissing the appeal for lack of jurisdiction to allow Bloom time to provide specific allegations of disclosures covered by the WPA and allegations that those disclosures were contributing factors to prohibited personnel practices.
Bloom v. Dep’t of the Army,
II. DISCUSSION
We have jurisdiction over appeals from the MSPB pursuant to 5 U.S.C. § 7703(b)(1). A decision of the MSPB must be affirmed unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Ckeeseman v. Office of Pers. Mgmt.,
A
On appeal, Bloom argues that her IRA appeal should, as she requested, have been dismissed without prejudice so it could be considered in conjunction with her district court litigation.
Bloom v. Harvey,
No. 05-1804,
Bloom contends that judicial efficiency favors consolidation of the IRA appeal with her pending district court litigation. A dismissal without prejudice would only allow petitioner to refile with the Board at a later date. The MSPB has granted such dismissals where the petitioner so requests with the intention to refile.
See, e.g., Zamot v. Merit Systems Protection Bd.,
B
Bloom also appeals the Board’s dismissal of her case for lack of jurisdiction. The MSPB has jurisdiction over an IRA appeal if the appellant who has exhausted her administrative remedies before the OSC makes “non-frivolous allegations” that (1) she 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).
See Yunus v. Dep’t of Veterans Affairs,
A non-frivolous allegation of a protected disclosure requires that reading it, a disinterested observer with knowledge of the essential facts would reasonably conclude that “(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” has occurred. 5 U.S.C. § 2302(b)(8);
see also Lachance v. White,
*956
In addition, Bloom has not alleged that the disclosures she made were a contributing factor in any of the subsequent personnel actions. A non-frivolous allegation is one that would lead a reasonable person to conclude that a disclosure was a contributing factor in one or more personnel actions. 5 U.S.C § 1221(e)(1); 5 U.S.C. § 2302(a);
Yunus,
Notes
. In her district court complaint, Bloom alleges that she was subjected to a hostile work environment, retaliation based on protected activity, sex discrimination and whistleblower discrimination in violation of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the Civil Service Reform Act (5 U.S.C. § 2302) and the Whistleblower Protection Act (5 U.S.C. § 1211, et seq.).