We review de novo whether the Board has jurisdiction over an appeal. Hessami v. Merit Sys. Prot. Bd. , 979 F.3d 1362, 1367 (Fed. Cir. 2020) (citing Forest v. Merit Sys. Prot. Bd. , 47 F.3d 409, 410 (Fed. Cir. 1995) ). The Board has jurisdiction if an appellant has exhausted his remedies before OSC and makes nonfrivolous allegations that (1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), or (b)(9)(B)–(D), and (2) such disclosure was a contributing factor in an agency's decision to take or abstain from a personnel action.
In an IRA appeal that asserts a whistleblower-protection violation, the Board's jurisdiction depends on the presence of a "non-frivolous allegation" that the appellant made disclosures or engaged in other protected activity within 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), that the disclosures or protected activity were contributing factors in identified "personnel actions" under § 2302(a)(2)(A), and that the whistleblower charge was duly exhausted before OSC. See Hessami v. Merit Systems Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020); Cahill, 821 F.3d at 1373; see also Yunus v. Dep't of Veterans Affs., 242 F.3d 1367, 1371 (Fed. Cir. 2001). Under § 2302(b)(8), the subject of an employee's "whistleblowing" must be activity that the employee "reasonably believes evidences-(i) any 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."
The appellant need only make nonfrivolous allegations; he need not prove each jurisdictional element.See Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1369 (Fed. Cir. 2020); Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 431-32, 435 n.9, 137 S.Ct. 1975, 198 L.Ed.2d 527 (2017). Nor must the appellant make allegations that definitively would establish each element.
Id.; see also Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1369-71 (Fed. Cir. 2020) (finding petitioner made protected disclosure that particular named government physician prescribed HCV regimen for longer than recommended, without clinical justification); Johnston, 518 F.3d at 909-10 (finding petitioner made protected statement when she asserted that using inadequately trained personnel to review agency training exercises would increase danger of serious injury).
An allegation is non-frivolous if the appellant "alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face." Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1369 (Fed. Cir. 2020).
"Whether the Board has jurisdiction over an appeal is a question of law we review de novo." Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020).
. 5 U.S.C. § 1221(a)-(b); Hessami v. MSPB, 979 F.3d 1362, 1367 (Fed. Cir. 2020).
5 U.S.C. § 1221(a); see Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2021); Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016); Kahn v. Dep't of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008); Yunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371-72 (Fed. Cir. 2001). A nonfrivolous allegation "is an assertion that, if proven, could establish the matter at issue" under the WPA requirements; it must be plausible on its face and more than conclusory.
The Board has jurisdiction over an IRA appeal under the WPA if the appellant, having exhausted the possibility of OSC administrative remedies, makes to the Board "non-frivolous allegations" that (1) the appellant engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) (or § 2302(b)(9)(A)(i), (B), (C), or (D), which are not at issue here) and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take, or the agency's threats to take or fail to take, a "personnel action" against the appellant. 5 U.S.C. § 1221(a); id. § 2302(b)(8); see Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2021); Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016); Kahn v. Dep't of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008); Yunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371-72 (Fed. Cir. 2001). A protected disclosure is one that the employee "reasonably believes evidences (i) any 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."
All three statutes also forbid retaliation against employees who engage in protected activity, such as filing an EEO complaint or making a protected disclosure. See Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008); Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020).