Opinion

Daniel J Ruiz v. Department of Justice

Court: Merit Systems Protection Board
Filed: Sep 4, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL J. RUIZ, DOCKET NUMBER

Appellant, DA-1221-22-0270-W-1

DEPARTMENT OF JUSTICE, DATE: September 4, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daniel J. Ruiz , Bryan, Texas, pro se.

Sung H. Lee , Grand Prairie, Texas, 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

denied corrective action in his individual right of action (IRA) appeal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

¶2 On petition for review, the appellant challenges the administrative judge’s

credibility findings and argues that he has new and material evidence that

warrants a different outcome. Petition for Review (PFR) File, Tabs 1, 3. He also

challenges the sufficiency of the agency’s discovery responses. PFR File, Tab 1

at 4-6. The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing, and the Board may overturn such

determinations only when it has sufficiently sound reasons for doing so. Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). In his petition for

review, the appellant challenges the administrative judge’s credibility

determinations, many of which were demeanor-based. PFR File, Tab 1 at 4-11.

For example, the appellant challenges the warden’s testimony that she did not

reduce the appellant’s overtime. Id. at 7. However, the administrative judge

found the warden’s denial concerning the reduction of overtime to be

unpersuasive and she found that the appellant proved that the agency reduced his

overtime. Initial Appeal File (IAF), Tab 35, Initial Decision (ID) at 22-23. The

appellant also appears to challenge the truthfulness of his first-line supervisor,

S.R., on review. PFR File, Tab 3 at 4-5. He asserts that the warden made S.R.

cry concerning criticisms of the conditions in the Food Services department. Id.

The appellant asserts that S.R. denied this at her deposition. Id. However, S.R.

testified at the hearing about a counseling from the warden, and the administrative

judge found that S.R.’s testimony on this topic was unhesitating, forthright, and

expressive of vulnerability. ID at 31. We find that the appellant’s specific

challenges to the credibility of agency witnesses are insufficient to warrant a

different outcome. The administrative judge explained in her well-reasoned

initial decision why she accepted some testimony of agency witnesses and

rejected other testimony, including a thorough analysis of the demeanor of

witnesses. ID at 16-35. We find that the appellant has not provided a sufficiently

sound reason for disturbing the administrative judge’s credibility findings. See

Haebe, 288 F.3d at 1301.

¶3 As to the appellant’s assertion that he has new and material evidence that

warrants a different outcome, we are not persuaded. PFR File, Tab 1 at 6-66.

Some of the documents filed by the appellant on review are already in the record

and are not new. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256

(1980). As to the remaining documents, it appears that all but one predate the

initial decision, and we therefore find that they are not new. See Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (explaining that, under 5 C.F.R.

§ 1201.115, the Board generally will not consider evidence submitted for the first

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

record was closed before the administrative judge despite the party’s due

diligence). The appellant has provided one document that postdates the initial

decision. 2 PFR File, Tab 3 at 9. However, the appellant has not established that

the evidence was unavailable before the close of the record before the

administrative judge despite his due diligence. See Grassell v. Department of

The appellant has also filed one document that is undated and we are therefore unable

to determine whether the document was available prior to the close of the record before

the administrative judge. PFR File, Tab 1 at 22. Even if the document is new, we have

considered it and we find that it does not warrant a different outcome.

Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that, to constitute new and

material evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite the appellant’s due

diligence when the record closed). We have considered the appellant’s argument

that he provided certain documents to his former representative, who did not file

them before the administrative judge. 3 PFR File, Tab 3 at 4. However, the

appellant is bound by the action or inaction of his chosen representative. 4 See

Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).

¶4 Finally, the appellant alleges on review that the agency withheld evidence

in discovery. PFR File, Tab 1 at 4-6. Specifically, the appellant objects to the

agency’s responses to his twelfth request for the production of documents. Id.

Before the administrative judge, the appellant challenged the sufficiency of the

agency’s discovery responses by filing a motion to compel. IAF, Tab 17. The

administrative judge denied the appellant’s motion to compel regarding the

twelfth document request. IAF, Tab 21 at 3-4. We find no basis to disturb the

administrative judge’s ruling. 5 See Wagner v. Environmental Protection Agency ,

54 M.S.P.R. 447, 452 (1992) (holding that the Board will not reverse an

administrative judge’s discovery rulings absent an abuse of discretion), aff’d,

996 F.2d 1236 (Fed. Cir. 1993) (Table).

Contrary to the appellant’s assertion, many of the documents the appellant submits on

review are already in the record.

More than 1 year after the record on review closed, the appellant filed a brief motion

seeking to submit additional evidence or argument. PFR File, Tab 8. The appellant has

not described the nature or need for the evidence that he wishes to submit, nor has he

stated that the evidence was not readily available before the record closed.

Accordingly, the appellant’s motion does not meet the Board’s criteria for filing an

additional pleading, and we deny his motion. 5 C.F.R. § 1201.114(a)(5), (k).

On review, the appellant also references the agency’s response to his second request

for admission. PFR File, Tab 1 at 6. He does not appear to argue that the agency

withheld information relevant to this request; rather, he suggests that the agency’s

response, denying that overtime was reduced during 2021, was false. Id. The

appellant’s arguments on review do not warrant a different outcome because, in the

initial decision, the administrative judge found that the appellant proved that his

overtime was reduced in 2021. ID at 22-23.

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

affirm the initial decision denying corrective action in this IRA appeal.

NOTICE OF APPEAL RIGHTS 6

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. 7 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