Ferdik v. Department of Defense , 158 F. App'x 286 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3277
MARIA TERESA FERDIK,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
________________________
DECIDED: December 12, 2005
________________________
Before MICHEL, Chief Judge, BRYSON and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Maria Teresa Ferdik seeks review of a final decision of the Merit Systems
Protection Board (“Board”) dismissing her appeal for lack of jurisdiction. Ferdik v. Dep’t
of Def., No. DC-1221-04-0376-W-1 (M.S.P.B. May 27, 2005) (“Final Order”). We affirm.
I
Ferdik was a teacher at the Naples American High School (“NAHS”) in Naples,
Italy, which is operated by the Department of Defense (“agency”). The principal of
NAHS informed Ferdik, by notice dated May 22, 2003, of the termination of her
appointment, effective June 13, 2003.1
Ferdik appealed the termination action to the Board and requested a stay of the
action. The Board dismissed her appeal because an excepted service employee with
less than two years of Federal service does not have a right to appeal to the Board.
See 5 C.F.R. §§ 315.801, 310.806 (2005); Ferdik v. Dep’t of Def., No. DC-0752-03-
0627-I-1 (M.S.P.B. Aug. 29, 2003) (“Initial Decision”). The request for a stay of the
termination was also subsequently dismissed. Ferdik v. Dep’t of Def., No. DC-315H-03-
0627-S-1 (M.S.P.B. July 11, 2003) (“Stay Order”).
On July 16, 2003, Ferdik filed a complaint with the Office of Special Counsel
(“OSC”) alleging that the agency violated the Whistleblower Protection Act of 1989
(“WPA”), Pub. L. No. 101-12, 103 Stat. 16, because it terminated her in retaliation for
her alleged whistleblower disclosure. She had disclosed between March and May 2003
that a local Italian national, Roberta Pennasilico, although not a United States citizen,
was continuously employed as a teacher at the NAHS for 13 years. She allegedly had
disclosed that Pennasilico’s employment as a teacher evidenced a violation of law, rule,
or regulation, gross mismanagement, gross waste of funds, and abuse of authority. In
support of her complaint, Ferdik submitted a letter to OSC, dated January 9, 2004,
further detailing the previously disclosed employment violation. She alleged that she
had learned of Pennasilico’s improper employment from a conversation with Glenda
1
The reasons for termination included: (1) inappropriate remarks and
behavior made to students; (2) inconsistent grading that required recalculating and
reissuing report cards; (3) inappropriate remarks made to staff members at the NAHS;
(4) continued misbehavior after a previous letter of caution regarding the use of abusive,
demeaning and inappropriate language.
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Werner, a school counselor at the NAHS, on February 20, 2003. Ferdik’s complaint and
letter stated that she had reported the illegal employment to the principal, vice-principal,
and local union representative several times between March and May 2003. After
receipt of her letter, OSC advised Ferdik that it was terminating the investigation and
that she could request corrective action from the Board.
On March 30, 2004, Ferdik filed an individual right of action (“IRA”) appeal with
the Board. She repeated the allegations that she had made to OSC and requested
corrective action. She asked for reinstatement in a teaching position commensurate in
benefits and pay status with the same position that she held at the NAHS and removal
from her personnel files of any reference to the adverse action or associated
performance appraisals. The Board issued a Show Cause Order requiring Ferdik to
present evidence that the Board had jurisdiction to adjudicate her IRA appeal. She
alleged that the Board had jurisdiction because she had made protected disclosures.
The agency responded by stating that Ferdik had failed to establish Board jurisdiction.
An administrative judge (“AJ”) dismissed Ferdik’s IRA appeal for lack of
jurisdiction premised on Ferdik’s failure to make nonfrivolous allegations that she had
engaged in whistleblowing activity. Ferdik v. Dep’t of Def., No. DC-1221-04-0376-W-1
(M.S.P.B. May 26, 2004) (“Initial Decision”). The Board, on May 27, 2005, issued a final
order denying Ferdik’s petition for review.
Ferdik timely appealed to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) (2000).
05-3277 3
II
This court must affirm the decision of the Board unless the decision was:
“(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) (2000); see
Francisco v. Office of Pers. Mgmt., 295 F.3d 1310, 1313 (Fed. Cir. 2002). The issue of
whether the Board has jurisdiction over an appeal is a question of law which this court
reviews de novo. See Francisco, 295 F.3d at 1313.
III
Ferdik argues that the Board erred in dismissing her IRA appeal for lack of
jurisdiction. The Board has jurisdiction over an IRA appeal if Ferdik shows that the
administrative remedies before the OSC have been exhausted and that she made
nonfrivolous allegations that “(1) [s]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 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). Ferdik alleges the board erred in dismissing for lack of
jurisdiction because she exhausted her administrative remedies, made a protected
disclosure about the illegal employment of a non-U.S. citizen as a teacher and the
agency terminated her appointment as a teacher, as a result of the disclosure.
The sole disclosure at issue in Ferdik’s IRA appeal pertains to relaying
information that Pennasilico’s employment as a teacher at the NAHS was a violation of
law. Ferdik has not shown or raised any other disclosures as a basis for her IRA
05-3277 4
appeal. The Board determined, and we agree, that Ferdik has exhausted all her
administrative remedies before OSC as to this disclosure.
Ferdik alleges that the disclosure was made to the principal, vice-principal, and
local union representative before her termination. The disclosure involved the
revelation that Pennasilico, although not a United States citizen, had been employed as
a teacher at the NAHS for 13 years. According to 20 U.S.C. § 901(2) (2000), a teacher
at an overseas school operated by the agency must be a “citizen of the United States.”
In her letter to OSC, Ferdik stated that Werner told her that Pennasilico’s employment
was improper. The letter also indicated that “almost the whole school knows full well . .
. that the practice is a violation . . . [of] policy and directives.”
Reporting information that is already publicly known is not a protected disclosure
pursuant to 5 U.S.C. § 2302(b)(8). Francisco, 295 F.3d at 1314 (citing Huffman v.
Office of Pers. Mgmt., 263 F.3d 1341, 1349-50 (Fed. Cir. 2001) (construing “disclosure”
to require a revelation of “something that was hidden and not known.”)). Ferdik
contends that the Board erred in finding that the disclosure was publicly known because
Werner told her that “the illicit practice was a well kept secret among many others at the
school.” There is substantial evidence to support the finding that the information was
well known by others and is therefore public information that does not qualify as a
protected disclosure. Id. Ferdik’s response to the Board’s Show Cause Order further
reinforces the Board’s conclusion that the disclosure was publicly known because
Ferdik notes that her conversation with Werner was public and witnessed by several
people. We agree with the Board that there was no protected disclosure because
Pennasilico had taught for 13 years at the NAHS and Ferdik admitted that almost the
05-3277 5
entire school knew that the employment was a statutory violation. Therefore, Ferdik
failed to establish a nonfrivolous allegation that she engaged in whistleblowing activity
by making a protected disclosure. It is apparent from her complaint and the January 9,
2004 letter that the disclosure was publicly known and not a protected disclosure.
Consequently, we need not and do not reach the issue of whether a protected
disclosure was a contributing factor in the agency’s personnel decision to terminate her
position.
Ferdik, on appeal, raises new allegations and facts unrelated to her IRA appeal.
She appears to allege additional grounds of discrimination from wrongful termination
and “disparate treatment.” Ferdik fails to establish how these additional grounds cure
her frivolous allegation of a WPA violation by showing that her disclosure was indeed a
protected disclosure. Moreover, she also raises new facts that are not a part of the
record and were not before the Board. We cannot consider new evidence that was not
before the Board. See Mueller v. U.S. Postal Serv., 76 F.3d 1198, 1201-02 (Fed. Cir.
1996).
IV
Because Ferdik failed to establish a nonfrivolous allegation, we affirm the
decision of the Board to dismiss Ferdik’s IRA appeal for lack of jurisdiction. Each side
shall bear its own costs.
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