                  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


                                          05-3023

                                     TODD M. JACK,

                                                  Petitioner,

                                             v.

                            DEPARTMENT OF COMMERCE,

                                                  Respondent.

                            ___________________________

                            DECIDED: April 11, 2005
                            ___________________________


Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.

PER CURIAM.

       Todd M. Jack petitions for review of the final decision of the Merit Systems

Protection Board, Docket No. DC-1221-03-0567-W-1, dismissing his Individual Right of

Action (“IRA”) appeal for lack of jurisdiction. We affirm.

                                     BACKGROUND

       Mr. Jack is a patent examiner with the United States Patent and Trademark

Office (“PTO”).    In February 2000, Mr. Jack alleged to the Federal Bureau of

Investigation that he had been approached by other employees of the PTO who

proposed that he join them in a scheme to sell patents and perform patent searches for
persons outside the PTO for cash payments. In February 2001, Mr. Jack made the

same allegations to a congressional office.      In addition, he alleged that two PTO

employees had accessed his e-mail, bank, and credit accounts. In April and May 2001,

Mr. Jack informed the Identity Theft Division of the United States Secret Service that

one of those employees had changed his ATM access code, and that another had

switched the contact phone number associated with his bank account to that

employee’s cell phone number.        Later in May 2001, Mr. Jack alleged to the Naval

Criminal Investigative Service that employees of the PTO were accepting cash for

granting and transferring patents.    He also again alleged that PTO employees had

stolen his identity by breaking into his e-mail, bank, and credit accounts. In June 2001,

he made the same allegations to Department of Commerce security officers.              In

addition, he alleged that PTO employees were accepting cash for performing

unauthorized patent searches. Later in June 2001, Mr. Jack made identical allegations

to the Office of Inspector General and to PTO security officers. In August 2001, Mr.

Jack reported to the Navy Criminal Investigation Service that other PTO employees had

stolen his identity. Mr. Jack made identical or similar allegations in April 2002 to the

Veterans Employment and Training Service in the Department of Labor, and in August

2002 to another congressman’s office.

      On April 8, 2002, Mr. Jack’s supervisor gave him a memorandum confirming an

oral warning that his performance was unacceptable and giving him an opportunity to

improve. The next day, the supervisor reported an incident with Mr. Jack, and as a

result Mr. Jack was placed on a two days’ administrative leave. On July 30, 2002, Mr.

Jack’s second-level supervisor proposed that Mr. Jack be removed “for (1) Harassing




05-3023                                     2
and threatening behavior exhibited toward your supervisor and co-workers; (2) Making

false statements concerning another employee; (3) Creating a hostile work

environment; and (4) Inappropriate behavior in the workplace.”                The Deputy

Commissioner for Patent Operations issued a decision on January 6, 2003, sustaining

all of the charges, but reducing the proposed removal to a 120-day suspension effective

January 7, 2003.

       On October 11, 2002, Mr. Jack filed a complaint with the Office of Special

Counsel (“OSC”) alleging that on June 20, 2001, “security provided false information to

the [inspector general] insinuating that I was a criminal” in reprisal for the disclosure he

made to the Office of Inspector General.          He also alleged that the Commerce

Department had placed him on administrative leave and had subsequently proposed to

remove him because of the disclosure he had made to the Veterans Employment and

Training Services. After the OSC issued its preliminary response, Mr. Jack submitted a

letter proposing to amend his complaint to include claims of retaliation consisting of the

denial of his within-grade pay increase and the 120-day suspension. On March 26,

2003, the OSC officially notified Mr. Jack that it was terminating its investigation of the

original complaint and that he could seek review by the Board of the charges in that

complaint.

       Mr. Jack filed a Board appeal alleging that he had suffered multiple injuries in

reprisal for his various disclosures: (1) harassment, vandalism of his personal property,

and identity theft; (2) forced administrative leave; (3) issuance of a notice of proposed

removal; (4) denial of a within-grade increase in pay; and (5) a 120-day suspension.

The administrative judge who was assigned to the case found that Mr. Jack had




05-3023                                      3
exhausted his administrative remedies for the allegations in his original complaint to the

OSC, but that he had not exhausted his administrative remedies for the allegations in

his subsequent letter to the OSC proposing to amend his complaint. The administrative

judge therefore ruled that the Board had no jurisdiction over the allegations in the letter

in which he proposed to amend his OSC complaint.

       The administrative judge found that the only two allegations that qualified as

“personnel actions” for purposes of his IRA appeal were Mr. Jack’s proposed removal

and his placement on administrative leave.        The administrative judge also found,

however, that Mr. Jack had failed to make a nonfrivolous allegation that the subject

disclosures were protected whistleblowing activity and to establish that those

disclosures were a contributing factor in the personnel actions taken against him.

Therefore, the administrative judge dismissed the IRA appeal for lack of jurisdiction

without a hearing. The full Board denied Mr. Jack’s subsequent petition for review, and

this appeal followed.

                                      DISCUSSION

       Mr. Jack first argues that the Board failed to consider the testimony from a

hearing at a separate Board proceeding. Mr. Jack had two other cases on appeal with

the Board at the time this case was pending, one challenging his 120-day suspension

and the other challenging the denial of a within-grade pay increase. The Board hearing

to which Mr. Jack refers was held in the appeal from the 120-day suspension. There

was no hearing in the present case, and there was no requirement for the Board to

consider the testimony from the other appeal when it considered whether to dismiss this

case for lack of jurisdiction.   For the same reason, Mr. Jack’s complaints about




05-3023                                     4
omissions from the tape-recorded record of the hearing in the other case are not

relevant to the present case.

      Mr. Jack next argues that the administrative judge failed to consider that the

charges that were upheld in the appeal from the 120-day suspension “were petty &

frivolous.” Again, however, the merits of that appeal were not before the Board in this

case, and it was therefore proper for the Board not to address in this case the issues

that were presented in the other appeal.

      Mr. Jack complains that the members of the full Board who acted on his petition

for review were not present at the original hearing. That argument lacks merit because,

among other reasons, there was no hearing in this case. There is likewise no merit to

Mr. Jack’s contention that he wishes his case to “be reheard in a court.” This court’s

role in reviewing a decision of the Merit Systems Protection Board is not to “rehear”

cases, but to determine whether the decision under review is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or unsupported by

substantial evidence.” 5 U.S.C. § 7703(c). Mr. Jack’s complaints about the defects in

the record in the other appeal and the failure of the Board members to be present

during the hearing in that other appeal, do not demonstrate legal error of the kind

necessary to overturn a ruling by the Board. Mr. Jack has therefore not identified any

error in the present proceeding that would provide a basis on which this court could

reverse the Board’s decision in this case.

      In order to be entitled to a hearing in this case, Mr. Jack needed to make a

nonfrivolous allegation, supported by affidavits or other evidence, that the Board had




05-3023                                      5
jurisdiction over his appeal. See Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1215

(Fed. Cir. 2003).   The administrative judge found that Mr. Jack failed to make a

nonfrivolous allegation of jurisdiction, supported by any evidence, and therefore

dismissed his case without a hearing. Mr. Jack has not challenged the Board’s ruling

on that issue, and his procedural claims are without merit. Accordingly, we uphold the

Board’s decision denying his appeal.




05-3023                                   6
