Opinion

Erick Diaz v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jun 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

making this finding based on the same language in the prior Whistleblower Protection Act

How later courts described this case

making this finding based on the same language in the prior Whistleblower Protection Act

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERICK DIAZ, DOCKET NUMBER

Appellant, DC-3443-19-0674-I-1

DEPARTMENT OF THE NAVY, DATE: June 27, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Erick Diaz , New York, New York, pro se.

Jeremiah P. Crowley , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We

FORWARD the appellant’s whistleblower reprisal claims raised for the first time

on review to the administrative judge for docketing as an individual right of

action (IRA) appeal, and a determination on jurisdiction, and, if applicable, the

merits.

BACKGROUND

¶2 The appellant was employed as a Human Resources Specialist/Case

Examiner, GS-12, step 4, with the agency’s Board for Correction of Naval

Records (BCNR). Initial Appeal File (IAF), Tab 1 at 5, 7. On May 31, 2019, the

agency informed the appellant that he was being temporarily detailed to a GS -10

position, effective June 1, 2019, for a time period not to exceed 60 days. Id. at 9.

The agency’s May 31, 2019 memorandum explained that the detail was the result

of efforts to satisfy the appellant’s reasonable accommodation request and that it

would be conducting “an expanded job search for a funded vacant position” for

which he was qualified, but that if the search did not identify such a position for

which he was qualified, he would be offered a permanent reassignment to the

detailed position. Id.

¶3 The appellant appealed the detail to the Board, arguing that he had “been

retaliated against . . . as a result of having reported improper [G]overnmental

activities and for questioning on several instances the illegal bias[] and

mishandling of cases.” Id. at 5. The administrative judge issued a jurisdictional

order noting that the appellant’s appeal concerning “whistleblowing or other

protected activity” appeared to be an IRA appeal, and she informed him of what

was required to establish Board jurisdiction over his appeal, and, if such a

showing was made, how to prove his claim on the merits. IAF, Tab 3.

She ordered him to file evidence and argument to support a claim of Board

jurisdiction. Id. at 7. The appellant did not respond to the jurisdictional order.

¶4 On August 29, 2019, the administrative judge issued an initial decision on

the written record, dismissing the appeal for lack of jurisdiction. IAF, Tab 5,

Initial Decision (ID) at 1. She noted that, although the position to which the

appellant was detailed is at the GS-10 level, “it is unclear whether the appellant

suffered a permanent reduction in grade or pay.” 2 ID at 2. She further stated

that, absent a response from the appellant to the jurisdictional order, she was

“unable to find that he has established jurisdiction over this appeal” and,

similarly, that, absent evidence that he exhausted his administrative remedies

with the Office of Special Counsel (OSC), she was unable to find jurisdiction

“over his retaliation or whistleblowing claim or treat this appeal as an [IRA

appeal].” ID at 3.

¶5 The appellant has filed a petition for review, claiming that he was unable to

timely respond to the jurisdictional order because he was on medical leave while

undergoing mental health treatment and dealing with mental health issues related

to his post-traumatic stress disorder and traumatic brain injury. Petition for

Review (PFR) File, Tab 2 at 5. He has submitted documents with his petition for

review to support this claim. Id. at 18-31. He also provides detailed background

information for his claims and reasserts that he was detailed to a GS -10 position

We recognize that a reduction in grade or pay need not be permanent to constitute an

appealable action under chapter 75. Here, however, the appellant’s appeal appears to

only assert reprisal for whistleblowing activity, IAF, Tab 1 at 5, and on review, he has

not argued that the administrative judge erred by not considering his claim as a

demotion appeal, Petition for Review File, Tab 2.

in reprisal for whistleblowing. Id. at 5-8, 10-16. He includes with his petition

for review a January 20, 2019 OSC complaint and an OSC close-out letter dated

July 15, 2019. Id. at 32-41. The appellant also appears to raise new claims for

the first time on review, asserting that the agency engaged in other retaliatory

actions, such as issuing him poor performance evaluations, removing his

reasonable accommodations, and subjecting him to a hostile work environment.

Id. at 6.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The Board has held that, when an appellant alleges that an agency takes a

personnel action in reprisal for a whistleblowing activity, he has raised a

cognizable IRA claim. See Carson v. Department of Energy, 109 M.S.P.R. 213,

¶ 32 (2008), aff’d, 357 F. App’x 293 (Fed. Cir. 2009). Pursuant to 5 U.S.C.

§ 2302(a)(2)(A)(iv), a detail constitutes a personnel action, and the appellant has

claimed that his detail was taken in reprisal for “reporting improper

[G]overnmental activities.” IAF, Tab 1 at 5. Therefore, the appellant’s claim

should be treated as an IRA appeal.

¶7 The Board has jurisdiction over an IRA appeal if the appellant exhausts his

administrative remedy before OSC and makes nonfrivolous allegations that:

(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or

engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),

(C), or (D); and (2) the disclosure or protected activity 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016).

The appellant has not proven that he exhausted with OSC his claim that the

agency detailed him in reprisal for making protected disclosures or engaging in

protected activity.

¶8 In an IRA appeal, the Board may consider only matters that the appellant

first raised before OSC. Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 8 (2011). The purpose of the requirement that an appellant

exhaust his remedies with OSC prior to filing an IRA appeal with the Board is to

give OSC “the opportunity to take corrective action before involving the Board in

the case.” Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir.

1992). The Whistleblower Protection Enhancement Act provides that, if OSC

finds that there is a substantial likelihood that the information it received

discloses a violation of the Act, it “shall transmit the information to the head of

the agency involved for investigation and report.” See 5 U.S.C. § 1213(b), (c);

Ward, 981 F.2d at 526 (making this finding based on the same language in the

prior Whistleblower Protection Act). These inquiries by OSC and their

transmittal to agencies for remedial action are a major component of OSC’s work.

Ward, 981 F.2d at 526.

¶9 The Board may consider only those disclosures of information and

personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.

135, ¶ 8. To satisfy the exhaustion requirement, an appellant must provide to

OSC a sufficient basis to pursue an investigation that might lead to corrective

action. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. An

appellant may demonstrate exhaustion through his initial OSC complaint,

evidence that he amended the original complaint, including but not limited to

OSC’s preliminary determination letter and other letters from OSC referencing

any amended allegations, and the appellant’s written responses to OSC

referencing the amended allegations. Id., ¶ 11; Mason, 116 M.S.P.R. 135, ¶ 8.

To establish Board exhaustion, the appellant must prove exhaustion with OSC by

preponderant evidence, not just present nonfrivolous allegations of exhaustion.

5 C.F.R. § 1201.57(c)(1).

¶10 The only evidence in the record of OSC exhaustion of the appellant’s claim

that his detail was taken in reprisal for whistleblowing activity is his OSC

complaint and the OSC close-out letter submitted with the petition for review. 3

PFR File, Tab 2 at 32-41. The complaint was submitted on January 20, 2019, and

appears to have been most recently modified on January 30, 2019. Id. at 32.

Because the appellant was informed of the detail on May 31, 2019, and it became

effective on June 1, 2019, it is not temporally possible for him to have exhausted

this claim in the January 2019 OSC complaint. IAF, Tab 1 at 9; see MacDonald

v. Department of Justice, 105 M.S.P.R. 83, ¶ 10 (2007) (concluding that an

appellant could not have exhausted a claim of a retaliatory agency action with

OSC when that action occurred after he filed his OSC complaint). Indeed, we

have reviewed the OSC complaint, and it makes no reference to the June 1, 2019

detail. PFR File, Tab 2 at 32-40. Additionally, OSC’s July 15, 2019 close-out

letter does not provide any additional information regarding the claims that the

appellant exhausted with OSC, and, therefore, also fails to establish exhaustion.

Id. at 41. Accordingly, we agree with the administrative judge’s decision to

dismiss this appeal for lack of jurisdiction. See Lewis v. Department of

Commerce, 101 M.S.P.R. 6, ¶ 7 (2005) (affirming the administrative judge’s

decision to dismiss an IRA appeal for lack of jurisdiction when the appellant

failed to exhaust her administrative remedies as to specific personnel actions).

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted

for the first time with the petition for review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980). We recognize the appellant’s documented medical

issues, PFR File, Tab 2 at 18-31, and we note that the issue of jurisdiction is always

before the Board, see Lovoy v. Department of Health & Human Services , 94 M.S.P.R.

571, ¶ 30 (2003). In IRA appeals, the Board will generally accept evidence of OSC

exhaustion presented for the first time on review when it implicates the Board’s

jurisdiction and warrants a different outcome than that of the initial decision. See, e.g.,

Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013). We have considered

the appellant’s evidence submitted for the first time on review because it goes to the

heart of the jurisdictional issue and he has provided a satisfactory explanation for his

failure to submit it below.

The appellant’s whistleblower reprisal claims raised for the first time on review

are forwarded to the administrative judge to be docketed as an IRA appeal.

¶11 As noted above, the appellant raises several claims for the first time on

review that appear to constitute claims of whistleblower reprisal. Specifically, he

alleges that after he reported “irregularities,” such as “improper ex parte

communications” involving cases before the BCNR, he began to receive poor

performance evaluations, had his reasonable accommodations removed, and was

subjected to a hostile work environment. PFR File, Tab 2 at 6. Based on our

review of the OSC complaint submitted with the petition for review, we find that

all of these claims have been exhausted. Id. at 35-37. Therefore, we forward

these claims to the Board’s Washington Regional Office for docketing as an IRA

appeal and for a determination on jurisdiction and, if applicable, on the merits.

Additionally, the administrative judge assigned to the appeal should issue a new

jurisdictional order and provide the appellant with a full opportunity to plead and

prove his claims.

¶12 Based on the foregoing, we deny the appellant’s petition for review, and

affirm the initial decision. We forward the appellant’s claims that the agency

issued him poor performance evaluations, removed his reasonable

accommodations, and subjected him to a hostile work environment in reprisal for

reporting “ex parte communications” and other “irregularities” involving cases

before the BCNR, which were raised for the first time on review, to the

Washington Regional Office for docketing as an IRA appeal and adjudication.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the