# Daniel J Ruiz v. Department of Justice

> Merit Systems Protection Board · September 4, 2024

URL: https://www.frixlaw.com/law-library/cases/10572034

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 4, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DANIEL J. RUIZ, DOCKET NUMBER
Appellant, DA-1221-22-0270-W-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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.
3

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

2
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.
4

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).
3
Contrary to the appellant’s assertion, many of the documents the appellant submits on
review are already in the record.
4
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).
5
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

¶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:
6
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.
6

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
7

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
8

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
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.

7
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.
9

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10572034. Public record. Not legal advice.