Opinion

Enrique Triana v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Sep 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ENRIQUE TRIANA, DOCKET NUMBER

Appellant, SF-315H-20-0699-I-1

DEPARTMENT OF THE NAVY, DATE: September 5, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Enrique Triana , Orange, California, pro se.

Timothy J. Kuhn , Esquire, Camp Pendleton, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and 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 probationary termination appeal for lack of jurisdiction. On

petition for review, the appellant reasserts his arguments that the agency

retaliated against him for protected whistleblowing activity and discriminated

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

against him on the basis of his age, race, and sex when it terminated him during

his probationary period. 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

clarify that, absent an otherwise appealable action, the Board lacks independent

jurisdiction over the appellant’s claim that the agency discriminated against him

on the basis of his age, race, and sex, we AFFIRM the initial decision.

Because the appellant failed to make a nonfrivolous allegation that he was

not serving a probationary period at the time of his termination or that he had any

creditable prior Federal service amounting to 2 years of current continuous

service, we agree with the administrative judge’s conclusion that the appellant

failed to nonfrivolously allege that he is an “employee” within the meaning of

5 U.S.C. § 7511(a)(1). Therefore, the appellant has no chapter 75 appeal rights

before the Board. 2 With regard to the appellant’s allegations of discrimination on

A probationary employee who lacks chapter 75 appeal rights may have the right to

appeal a termination to the Board on the limited grounds set forth in 5 C.F.R.

§ 315.806. Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013).

The administrative judge found, and we agree, that the appellant did not allege that he

met any of the limited categories discussed in the regulations. Initial Appeal File

(IAF), Tab 7, Initial Decision (ID) at 6. The appellant does not challenge this finding

on review, and we find no reason to disturb it.

the basis of his race, age, and sex, absent an otherwise appealable action, the

appellant’s allegations of prohibited discrimination are not an independent source

of Board jurisdiction. Petition for Review (PFR) File, Tab 2 at 9; 5 C.F.R.

§ 315.806(d) (explaining that the Board has jurisdiction over complaints of

discrimination based upon protected classes including race, sex, and age in

connection with a probationary termination only if “such discrimination is raised

in addition to one of the issues stated in paragraph (b) or (c) of [that] section”);

see Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that

absent an otherwise appealable action, the Board lacks jurisdiction over a claim

of discrimination); Burnett v. U.S. Postal Service, 104 M.S.P.R. 308, ¶ 15 (2006)

(holding that, because the appellant failed to establish jurisdiction over her

appeal, she also failed to establish jurisdiction over her discrimination claim).

Although these allegations were not specifically addressed in the initial decision,

in the acknowledgement order, the administrative judge informed the appellant

that, absent an otherwise appealable action, the Board lacked jurisdiction over

such claims. Initial Appeal File, Tab 2 at 3. Accordingly, we modify the initial

decision to make clear that the Board lacks independent jurisdiction over the

appellant’s allegation that the agency discriminated against him on the basis of

his age, race, and sex. Consequently, we affirm the initial decision as modified. 3

On review, the appellant restates his allegation that he was subjected to reprisal for

protected whistleblowing activity. PFR File, Tab 1 at 5. In the initial decision, the

administrative judge identified the standard for establishing Board jurisdiction over an

individual right of action (IRA) appeal, including the appellant’s burden of proving

exhaustion with the Office of Special Counsel (OSC), and concluded that, based on the

appellant’s assertion that he had filed his complaint with OSC three days prior to filing

his Board appeal and that he had not yet received notice from OSC stating that it was

terminating its investigation into his complaint, the appellant failed to nonfrivolously

alleged Board jurisdiction over his claim as an IRA appeal. ID at 6-7; see Salerno v.

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

jurisdiction over an IRA appeal if the appellant has exhausted his administrative

remedies 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)). With his petition for review,

NOTICE OF APPEAL RIGHTS 4

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.

the appellant has not provided a copy of his OSC complaint, a close-out letter from

OSC stating that it was terminating its investigation into his complaint, or any other

evidence concerning the substance of his purported complaint with OSC. Additionally,

in his petition for review (which is essentially a resubmitted initial appeal form filled in

with new information), in the section of the appeal form inquiring whether the appellant

filed a whistleblowing complaint with OSC, he has now checked the box identifying

that he has not filed a complaint with OSC, even though he previously checked the box

stating that he had filed a complaint with OSC and identified September 3, 2020 as his

OSC complaint filing date in his initial appeal. Compare PFR File, Tab 1 at 4, with

IAF, Tab 1 at 5. Thus, on the existing record, it is unclear whether the appellant ever

filed a complaint with OSC. Consequently, we reiterate to the appellant that, if he has

exhausted his administrative remedies with OSC regarding a potential IRA appeal and

wishes to pursue an IRA appeal before the Board, he may wish to file a new Board

appeal regarding that claim.

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.

(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. 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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.