Opinion

Carlos Julemiste v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

stating that the Board’s authority is limited to those matters over which it has been given jurisdiction by law, rule, or regulation

How later courts described this case

stating that the Board’s authority is limited to those matters over which it has been given jurisdiction by law, rule, or regulation
stating that the prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CARLOS JULEMISTE, DOCKET NUMBER

Appellant, AT-1221-20-0032-W-1

DEPARTMENT OF VETERANS DATE: July 5, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carlos Julemiste , Miami, Florida, for the appellant.

Joved Gonzalez-Rivera , Mayaguez, Puerto Rico, 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

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

dismissed his individual right of action (IRA) 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;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to 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. Except as expressly MODIFIED to

clarify the jurisdictional analysis, we AFFIRM the initial decision.

On review, the appellant states that there was a misunderstanding about the

purpose of his complaint, which concerns an alleged prohibited personnel practice

under 5 U.S.C. § 2302(b)(2). Petition for Review File, Tab 1 at 3-4. It appears

that the Office of Special Counsel (OSC) may have misconstrued his complaint as

a claim of whistleblowing reprisal, and that his claim is rather that the selecting

official for a Staff Assistant position violated § 2302(b)(2) and/or (b)(4) when she

contacted his supervisor without his consent. Initial Appeal File (IAF), Tab 6

at 7-10, Tab 7 at 3, Tab 9 at 5. If that is in fact the sole basis of this appeal,

we must dismiss it, as the Board lacks jurisdiction to consider alleged violations

of 5 U.S.C. § 2302(b)(2) or (b)(4) in the absence of an otherwise appealable

action. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d,

681 F.2d 867, 871-73 (D.C. Cir. 1982) (stating that the prohibited personnel

practices under 5 U.S.C. § 2302(b) are not an independent source of Board

jurisdiction). Moreover, there is no law, rule, or regulation that would grant the

Board authority to review a possible error by OSC in interpreting the appellant’s

complaint. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.

1985) (stating that the Board’s authority is limited to those matters over which it

has been given jurisdiction by law, rule, or regulation).

If the appellant’s claim is one of reprisal for whistleblowing, we find that

the appellant did not meet his burden of establishing jurisdiction over his IRA

appeal. To establish jurisdiction over an IRA appeal, an appellant must exhaust

his administrative remedies with OSC and make nonfrivolous allegations 2 that

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

protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the

disclosure or activity was a contributing factor in the agency’s decision to take or

fail to take a personnel action as defined at 5 U.S.C. § 2302(b)(a). Salerno v.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

Here, the closeout letter and notice of appeal rights issued by OSC indicate

that the appellant—intentionally or not—exhausted his remedies with OSC with

respect to two disclosures: (1) disclosing to a union official that his supervisor

had first directed him not to initiate a payment ratification, and then directed him

to initiate it outside the authorized time frame; and (2) disclosing to the agency’s

Office of General Counsel that his supervisor was distributing gift cards and

asking him to make purchases in violation of agency policy. 3 IAF, Tab 1 at 7, 10.

The OSC correspondence also identifies two alleged retaliatory actions: (1) the

appellant’s nonselection for a Staff Assistant position, and (2) the creation of a

hostile work environment. 4 Id.

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous

when, under oath or penalty of perjury, an individual makes an allegation that (1) is

more than conclusory, (2) is plausible on its face, and (3) is material to the legal issues

in the appeal. Id.

While the appellant did allege that he engaged in these communications, it is

doubtful that he intended to characterize them as protected disclosures under 5 U.S.C.

§ 2302(b)(8).

Under the circumstances of this case, we need not decide whether appellant

nonfrivolously alleged that the disclosures were protected under 5 U.S.C. § 2302(b)(8),

or whether the alleged hostile work environment constituted a “personnel action” as

Under the statute governing IRA appeals, an employee may demonstrate

that a disclosure or protected activity was a contributing factor in the contested

personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure or protected activity

and that the personnel action occurred within a period of time such that a

reasonable person could conclude that the disclosure or protected activity was a

contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1);

Salerno, 123 M.S.P.R. 230, ¶ 13. The knowledge-timing test is only one way

of establishing contributing factor, and if an appellant fails to satisfy the

knowledge-timing test, other evidence must be considered, such as that pertaining

to the strength or weakness of the agency’s reasons for taking the personnel

action, whether the whistleblowing was personally directed at the responsible

agency officials, and whether those individuals had a desire or motive to retaliate

against the appellant. Dorney v. Department of the Army, 117 M.S.P.R. 480,

¶¶ 14-15 (2012).

Here, the administrative judge found that the appellant did not make a

nonfrivolous allegation that his disclosures were a contributing factor in his

nonselection, because there was no evidence that the selecting official knew of

the appellant’s disclosures. IAF, Tab 13, Initial Decision at 4-5. However, lack

of knowledge is not dispositive of the contributing factor issue. Thus, it was

error for the administrative judge to rely solely on the selecting official’s lack of

knowledge.

Nonetheless, the appellant has not at any point alleged—nonfrivolously or

otherwise—that the disclosures identified by OSC were a contributing factor in

his nonselection or his alleged hostile work environment. Accordingly, we affirm

the administrative judge’s conclusion that the appellant did not establish

jurisdiction. Because we lack jurisdiction over his case, we do not reach the

appellant’s remaining arguments.

defined at 5 U.S.C. § 2302(a)(2)(A).

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 6 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