Valenzuela v. Merit Systems Protection Board

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 18 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO R. VALENZUELA, No. 23-1751

Merit Systems Protection Board

Petitioner,

MEMORANDUM*

v.

MERIT SYSTEMS PROTECTION

BOARD,

Respondent.

On Petition for Review of an Order of the

Merit Systems Protection Board

Submitted September 13, 2024**

Pasadena, California

Before: SCHROEDER, R. NELSON, and MILLER, Circuit Judges.

Mario Valenzuela alleges that his former employer, U.S. Customs and Border

Protection (CBP), violated the Whistleblower Protection Act by retaliating against

him for disclosing a defect in an alert system. After exhausting his administrative

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

remedies, Valenzuela filed an Individual Right of Action with the Merit Systems

Protection Board. The Board dismissed his appeal for lack of jurisdiction, and

Valenzuela now petitions for review of that decision. We review Valenzuela’s

petition de novo. Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049, 1054 (9th Cir.

2016). We have jurisdiction under 5 U.S.C. § 7703(b)(1)(B), and we deny the

petition.

To invoke the Board’s jurisdiction, Valenzuela needed to make “non-

frivolous allegations” that (1) he made a protected disclosure, and (2) the disclosure

was a contributing factor in his employer’s decision to take or fail to take an

enumerated personnel action. Daniels, 832 F.3d at 1051 (quotation omitted); see

also 5 C.F.R. § 1201.4(s) (non-frivolous allegations are “more than conclusory,”

“plausible on [their] face,” and “material to the legal issues in the appeal”). 1

Valenzuela has not met his burden.

1. Valenzuela told his management that an allegedly defective alert

system “could be harmful to national security and public safety.” That disclosure—

1

Valenzuela asserts that the administrative law judge (ALJ) effectively applied a

summary judgment standard inconsistent with our precedent. See Daniels, 832 F.3d

at 1051 (“[T]he standard for determining whether a petitioner has made a non-

frivolous disclosure is analogous to the standard for reviewing a motion to

dismiss.”). But the ALJ expressly relied on Valenzuela’s own submissions, which

were uncontested. At no point did the ALJ “deny jurisdiction by crediting the

agency’s interpretation of the evidence.” Hessami v. Merit Sys. Prot. Bd., 979 F.3d

1362, 1369 (Fed. Cir. 2020).

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for which he claims he suffered retaliation—is not protected under the

Whistleblower Protection Act.

A protected disclosure is one that an employee “reasonably believes evidences

(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross

waste of funds, an abuse of authority, or a substantial and specific danger to public

health or safety.” 5 U.S.C. § 2302(b)(8)(A). The disclosures must be specific and

detailed—not vague and conclusory. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d

905, 910 (Fed. Cir. 2008).2

Valenzuela argues that he reasonably believed his disclosure revealed a

substantial and specific danger to public health and safety. But Valenzuela did not

detail any specific harm stemming from the alleged malfunction. And, assuming

Valenzuela is right that the alarm reset itself without human intervention, any danger

from that alleged defect is the kind of “negligible, remote, or ill-defined peril” that

is not protected under the statute. Chambers v. Dep’t of Interior, 515 F.3d 1362,

1369 (Fed. Cir. 2008) (quotation omitted).

Nor has Valenzuela alleged that his disclosure related to a violation of a

“specific law, rule, or regulation.” Langer v. Dep’t of Treasury, 265 F.3d 1259, 1266

2

Until 2012, the Federal Circuit had exclusive jurisdiction over most whistleblower

reprisal cases. So we often look to that court’s case law when resolving petitions for

review of Board decisions. See, e.g., Johnen v. U.S. Merit Sys. Prot. Bd., 882 F.3d

1171, 1174 & n.2 (9th Cir. 2018).

3 23-1751

(Fed. Cir. 2001) (quotation omitted). He invokes what he calls the “CBP’s safety

and security protocol,” but that argument is based on an email sent from his attorney

to the agency, not “an agency statement of . . . future effect designed to implement,

interpret, or prescribe law.” 5 U.S.C. § 551(4).

Valenzuela also asserts that his disclosure identified an abuse of authority and

gross mismanagement. He has not identified specific facts explaining why an

alleged malfunction in the alarm satisfies that standard. That renders his argument

“facially insufficient.” Johnston, 518 F.3d at 910.

Because Valenzuela’s disclosure is not protected, we need not address

whether it contributed to an enumerated personnel action.

2. Valenzuela also argues that he is entitled to an evidentiary hearing. We

have never held that employees are entitled to a hearing on whether they have

properly invoked the Board’s jurisdiction. Cf. Dick v. Dep’t of Veterans Affs., 290

F.3d 1356, 1362 (Fed. Cir. 2002) (“There simply is no right to a hearing on the

threshold issue of jurisdiction.”), overruled on other grounds by Garcia v. Dep’t of

Homeland Sec., 437 F.3d 1322, 1343 (Fed. Cir. 2006) (en banc). Valenzuela also

identifies no statute that gives him that right. Title 5 U.S.C. § 7701(a)(1)

contemplates a hearing in some situations, but that provision applies only once the

Board’s jurisdiction has been established. Rose v. Dep’t of Health & Hum. Servs.,

721 F.2d 355, 357 (Fed. Cir. 1983). And despite Valenzuela’s concerns about due

4 23-1751

process, “the Due Process Clause does not mandate a hearing where the statute does

not require that one be afforded.” Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124–

25 (Fed. Cir. 1996).

PETITION DENIED.

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