Opinion

Julio C. Guerra v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 30, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JULIO CESAR GUERRA, DOCKET NUMBER

Appellant, SF-1221-25-1246-W-1

DEPARTMENT OF VETERANS DATE: March 30, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Julio Cesar Guerra , Kent, Washington, pro se.

Nadine Scott , Seattle, Washington, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

decision. 5 C.F.R. § 1201.113(b).

On petition for review, the appellant reargues the jurisdictional elements of

his IRA appeal and submits additional evidence. The Board has jurisdiction over

an IRA appeal if the appellant has exhausted his administrative remedies before

the Office of Special Counsel 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). Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d,

No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); Salerno v.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Here, it is undisputed

that all disclosures and protected activities alleged by the appellant occurred after

the agency removed him from Federal employment, effective February 6, 2023. 2

Initial Appeal File (IAF), Tab 8 at 6; Petition for Review (PFR) File, Tab 1

at 7-9. Accordingly, we affirm the initial decision’s finding that the appellant has

The appellant challenged his removal in a prior appeal, and the Board sustained his

removal. Guerra v. Department of Veterans Affairs, MSPB Docket No. SF-0752-23-

0214-I-1, Initial Decision (July 10, 2023); Guerra v. Department of Veterans Affairs,

MSPB Docket No. SF-0752-23-0214-I-1, Final Order (Oct. 3, 2024).

not raised nonfrivolous allegations that his allegedly protected disclosures or

activities were a contributing factor in the agency’s actions that pre-dated those

disclosures. IAF, Tab 11, Initial Decision at 18-20; cf. Davis v. Department of

Defense, 106 M.S.P.R. 560, ¶ 12 (2007), aff’d, 278 F. App’x 1009 (Fed. Cir.

2008); Orr v. Department of the Treasury, 83 M.S.P.R. 117, 124 (1999), aff’d per

curiam, 232 F.3d 912 (Fed. Cir. 2000) (Table). Thus, the appellant has not

established the Board’s jurisdiction over his appeal.

The Board may consider new and material evidence or legal argument on

review if, despite the party’s due diligence, it was not available when the record

closed. 5 C.F.R. § 1201.115(d). Except for an April 28, 2025 notice from the

Equal Employment Opportunity Commission’s Office of Federal Operations, PFR

File, Tab 1 at 80-81, the appellant has not shown that his newly submitted

evidence or argument was previously unavailable, Id. at 10-11. In any event, it is

not material because it does not resolve the temporal issue with the contributing

factor element of his case. Id.

The appellant contends that the administrative judge, in limiting his

analysis to the jurisdictional elements of an IRA appeal, ignored his due process

and constitutional concerns regarding the agency’s actions. However, the initial

decision appropriately reflects the scope of the Board’s authority to review his

appeal. While the appellant requests that the Board provide him with guidance

regarding the correct forum for addressing his claims, the Board is unable to

provide the appellant legal advice. See 5 U.S.C. § 1204(h) (providing that the

Board is unable to provide advisory opinions).

The appellant has also challenged the administrative judge’s denial of his

motion for recusal or disqualification. PFR File, Tab 1 at 10; IAF, Tabs 5-6. We

find that the administrative judge properly denied the appellant’s motion because

a prior adverse ruling does not establish bias and is not a basis for

disqualification. See Caracciolo v. Department of the Treasury , 105 M.S.P.R.

663, ¶ 14 (2007), overruled on other grounds by Brookins v. Department of the

Interior, 2023 MSPB 3, ¶ 8.

Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 3

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).

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.

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