Opinion

Miziel Remolona v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MIZIEL REMOLONA, DOCKET NUMBER

Appellant, NY-1221-23-0057-W-1

DEPARTMENT OF VETERANS DATE: August 21, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher Forasiepi , Esquire, Bobby Devadoss , Esquire, and Maya

Glaspie , Esquire, Dallas, Texas, for the appellant.

Georgette Gonzales-Snyder , Esquire, Syracuse, New York, for the agency.

Shelly S. Glenn , Esquire, Baltimore, Maryland, 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 her individual right of action (IRA) appeal for lack of jurisdiction

without a hearing. On petition for review, the appellant challenges the denial of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 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

supplement the administrative judge’s analysis and findings on exhaustion and

regarding the appellant's alleged protected disclosures , we AFFIRM the initial

decision.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant did not nonfrivolously allege that she made a protected disclosure.

¶2 We agree with the administrative judge that the appellant did not

nonfrivolously allege that she made a protected disclosure. 2 Initial Appeal File

(IAF), Tab 14, Initial Decision (ID) at 7-13. We supplement the administrative

judge’s conclusion with the following discussion.

¶3 A protected disclosure is a disclosure that an appellant reasonably believes

evidences one of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8)

(A). Turner v. Department of Agriculture, 2023 MSPB 25, ¶ 14. A reasonable

belief exists if a disinterested observer with knowledge of the essential facts

known to and readily ascertainable by the appellant could reasonably conclude

We thus do not reach the question of whether the appellant nonfrivolously alleged that

her protected disclosures were a contributing factor in her removal.

that the actions of the Government evidence one of the categories of wrongdoing

listed in section 2302(b)(8)(A). Id.

¶4 Disclosures must be specific and detailed, not vague allegations of

wrongdoing. Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 6.

Vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing

do not meet the nonfrivolous pleading standard needed to establish the Board’s

jurisdiction over an IRA appeal. El v. Department of Commerce, 123 M.S.P.R.

76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Thus, in Mc Corcle v.

Department of Agriculture, 98 M.S.P.R. 363, ¶¶ 21-22, 24 (2005), the Board

found that an appellant’s bare allegations of discrimination and broad and

nonspecific claims of managerial “irregularities,” among others, were too vague

to constitute nonfrivolous allegations of protected disclosures. In another

example, in Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543-44

(1992), the Board affirmed a jurisdictional dismissal of an IRA appeal, finding

that an appellant’s assertions that there was “fraud, waste, and abuse” in certain

sections of a military unit, and that various conditions were caused by “poor

organization, discipline, and management,” were vague allegations regarding

broad and imprecise matters that did not constitute whistleblowing.

¶5 The appellant’s alleged disclosures in this appeal were similarly defective.

During the appeal, the administrative judge notified the appellant—who was

represented by attorneys throughout her appeal—that to establish jurisdiction, she

must make a nonfrivolous allegation that she made a protected disclosure or

engaged in protected activity. IAF, Tab 6 at 2. The notice also provided the

appellant with the relevant legal standards, including the definition of a protected

disclosure. Id. at 2-7. With her notice, the administrative judge ordered the

appellant to file a statement describing her protected disclosures, explaining that a

nonfrivolous allegation was a “detailed, factual allegation,” while conclusory,

vague, or unsupported allegations would not suffice. Id. at 3-4, 7-8.

¶6 In response, the appellant claimed she was removed in reprisal for

disclosing to her supervisors and preceptors that she was receiving “contradictory

and inconsistent instructions regarding her job duties” from them and that the

instructions were incorrect, violated agency policy, and could harm patients. IAF,

Tab 8 at 8-9, 13. The appellant further alleged that her disclosures regarding her

inconsistent instructions evidenced, among other things, an “abuse of power” and

“perceived waste, fraud, and/or abuse” by her supervisors and preceptors. Id.

at 9, 11. Nowhere below, however, did the appellant describe what these

“contradictory and inconsistent instructions” were, why they were incorrect, what

policy they allegedly violated, 3 or how they could harm patients. 4 The vagueness

of the appellant’s alleged disclosures precludes any determination of whether she

reasonably believed they evidenced one of the forms of wrongdoing listed in

5 U.S.C. § 2302(b)(8), as required for protection under the whistleblower

Ordinarily, to make a protected disclosure of a violation of law, rule, or regulation, an

employee must identify the specific law, rule, or regulation that was violated, though an

individual need not identify a statutory or regulatory provision by a particular title or

number when the statements and the circumstances surrounding the making of those

statements clearly implicate an identifiable violation of law, rule, or regulation.

Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 24 (2015) (internal quotations

omitted). Here, the appellant’s descriptions of her alleged disclosures did not clearly

implicate an identifiable violation of law, rule, or regulation.

In her petition for review, the appellant asserts for the first time that she disclosed

concerns that COVID-19 screening instructions she received from her preceptors

contradicted written instructions and agency policies. Petition for Review (PFR) File,

Tab 1 at 13. She did not, however, identify the policies with any specificity, provide a

copy of them, or identify where they could be located. She did provide further details

regarding the allegedly contradictory instructions in her reply to the response to her

petition for review. PFR File, Tab 4 at 5, 7. The appellant does not show that her new

arguments are based on new and material evidence that was previously unavailable

despite due diligence, nor offer any reason for why she did not provide these details

below in response to the administrative judge’s clear jurisdictional order or otherwise.

We thus do not consider them. See Clay v. Department of the Army, 123 M.S.P.R. 245,

¶ 6 (2016).

protection statutes. 5 The appellant’s descriptions of her alleged disclosures were

thus too vague to satisfy the nonfrivolous pleading standard in an IRA appeal. 6

NOTICE OF APPEAL RIGHTS 7

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 agency argues in its response to the petition for review that, because the

appellant’s Office of Special Counsel (OSC) complaint did not describe her alleged

disclosures regarding inconsistent instructions, the appellant was precluded from

asserting those disclosures in her Board appeal. PFR File, Tab 3 at 13-15. We disagree

and supplement the administrative judge’s exhaustion findings with the following

discussion. ID at 6. The substantive requirements of exhaustion are met when an

appellant has provided OSC with sufficient basis to pursue an investigation.

Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The Board’s

jurisdiction over an IRA appeal is limited to those issues that have been previously

raised with OSC. Id. An appellant may demonstrate exhaustion through her initial OSC

complaint or correspondence with OSC. Id., ¶ 11. The agency’s argument overlooks a

letter to OSC in which the appellant alleged that she was removed in reprisal for

disclosing concerns regarding inconsistent instructions from her supervisors and

preceptors. IAF, Tab 8 at 224-26. Because this letter provided OSC with a sufficient

basis to investigate those alleged disclosures, despite their vagueness, the appellant

exhausted administrative remedies regarding them.

The appellant also alleges for the first time on review that she made disclosures to her

supervisors and preceptors regarding reports about her performance, and that the agency

characterized her objections to violations of policy and her written instructions as

misconduct in the decision notice. PFR File, Tab 1 at 12, 15. The appellant’s purported

disclosures about her performance reports are also overly vague, as she provides no

description of what she disclosed about the reports, or any other basis for determining

whether she reasonably believed the disclosures evidenced one of the forms of

wrongdoing set forth in 5 U.S.C. § 2302(b)(8). We also fail to discern anything in the

decision notice which matches the appellant’s description of its contents. Id. at 193-95.

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.

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:

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. 8 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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