Opinion

Anthony Gomez v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Oct 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 31.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY GOMEZ, DOCKET NUMBER

Appellant, NY-1221-17-0105-B-1

DEPARTMENT OF VETERANS DATE: October 23, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alan E. Wolin , Esquire, Jericho, New York, for the appellant.

Timothy O’Boyle , Esquire, Hampton, Virginia, for the agency.

Jane Yoon , Esquire, Brooklyn, New York, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision,

which found that the appellant did not establish jurisdiction over a claim that the

Board remanded for further adjudication. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 the claims addressed in the initial decision are denied

on the merits while the additional claim remanded for further adjudication is

dismissed for lack of jurisdiction, we AFFIRM the initial decision.

¶2 In an initial decision, the administrative judge first assigned to this

individual right of action appeal denied the appellant’s request for corrective

action, on the merits, regarding two specific claims. Gomez v. Department of

Veterans Affairs, MSPB Docket No. NY-1221-17-0105-W-1, Initial Decision

(ID). The first concerned allegations of reprisal for disclosures about the

agency’s filling of an Administrative Officer vacancy. ID at 6-9. The second

concerned allegations of reprisal for his filing of a grievance. ID at 9-10. On

review, the Board agreed with those findings. Gomez v. Department of Veterans

Affairs, MSPB Docket No. NY-1221-17-0105-W-1, Remand Order (RO), ¶¶ 4-10

(July 24, 2023). However, the Board remanded the appeal for consideration of

another alleged disclosure not addressed in the initial decision, i.e., one about the

agency’s filling of a Lead Facility Telehealth Coordinator (FTC) vacancy. RO,

¶¶ 11-16.

¶3 On remand, a newly assigned administrative judge instructed the appellant

to establish jurisdiction over this remanded claim by presenting nonfrivolous

allegations that he made a disclosure protected under section 2302(b)(8). Gomez

v. Department of Veterans Affairs, MSPB Docket No. NY-1221-17-0105-B-1,

Remand File (RF), Tab 6. The appellant responded, arguing that the issue had

already been decided in his favor. RF, Tab 9 at 8-11. In the alternative, he

argued that the Board did have jurisdiction over the alleged disclosure. Id.

at 11-19. The administrative judge issued a remand initial decision finding

otherwise. RF, Tab 12, Remand Initial Decision (RID) at 5-13.

¶4 In his remand petition for review, the appellant presents the same arguments

he presented below, with only slight inconsequential differences. Compare RF,

Tab 9 at 8-20, with Gomez v. Department of Veterans Affairs, MSPB Docket No.

NY-1221-17-0105-B-1, Remand Petition for Review (RPFR) File, Tab 1 at 11-22.

He reasserts that jurisdiction over the remanded claim was already decided in his

favor or that the Board does have jurisdiction over the matter. RPFR File, Tab 1

at 11-22. We are not persuaded by these arguments. 2

¶5 Although we do not find any basis for granting the appellant’s remand

petition for review, we modify the remand initial decision in one respect. The

Board’s prior remand order vacated the initial decision but invited the

administrative judge to incorporate the associated findings into a remand initial

decision that would address the one unaddressed claim. RO, ¶ 15. The newly

assigned administrative judge stated that she was doing so in the remand initial

In analyzing whether the appellant nonfrivolously alleged that he disclosed an abuse

of authority, the administrative judge applied the standard historically used by the

Board; under that standard, an abuse of authority is an arbitrary and capricious exercise

of power by a Federal official or employee that adversely affects the rights of any

person or results in personal gain or advantage to himself or to other preferred persons.

RID at 9 (citing Chavez v. Department of Agriculture, 120 M.S.P.R. 285, ¶ 22 (2013)).

However, in Smolinski v. Merit Systems Protection Board, 23 F.4th 1345, 1351-52 (Fed.

Cir. 2022), the U.S. Court of Appeals for the Federal Circuit defined an abuse of

authority more broadly as an arbitrary and capricious exercise of authority that is

contrary to the agency’s mission. We have considered the appellant’s additional

disclosure under the standard set forth in Smolinski, and we still find that he failed to

nonfrivolously allege that he disclosed an abuse of authority regarding the Lead FTC

vacancy. Thus, the result is the same under either standard.

decision. RID at 2. However, she further described the remand initial decision as

one dismissing the appeal, rather than just the remanded claim, for lack of

jurisdiction. RID at 2, 13. To clarify, the sum of these proceedings is as follows:

The Board denies the appellant’s request for corrective action, on the merits,

regarding alleged disclosures about the Administrative Officer vacancy and

alleged grievance activity. ID at 6-10; RO, ¶¶ 4-10, 15; RID at 2. The Board

dismisses the appellant’s other alleged disclosure, about the Lead FTC vacancy,

for lack of jurisdiction. RID at 5-13.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Boards 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.

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. 4 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.