Adam Delgado v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ADAM DELGADO, DOCKET NUMBER

Appellant, CH-1221-14-0737-W-1

v.

DEPARTMENT OF JUSTICE, DATE: December 18, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam Delgado, Chicago, Illinois, pro se.

Lance Simon, Esquire, and Nicholis D. Mutton, Esquire, Washington, D.C.,

for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 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 when: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. See 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 The appellant, a GS-13 Special Agent, filed an IRA appeal in which he

alleged that the agency took various actions against him in retaliation for making

a protected disclosure. Initial Appeal File (IAF), Tab 1. Specifically he alleged

that he disclosed to his superiors a violation of policy and law and, as a result, he

was denied promotional opportunities and told that he was to be geographically

reassigned, which he perceived to be a threatened personnel action. Id. at 5.

With his appeal, the appellant submitted a copy of a letter from the Office of

Special Counsel (OSC) informing him that it had terminated its inquiry into his

allegations and advising him of his right to file an IRA appeal with the Board. Id.

at 7.

¶3 In a subsequent submission, the appellant further explained his disclosure,

stating that, in 2012, he had participated in the surveillance of an undercover drug

deal involving a fellow Special Agent; during the July 2013 criminal trial of the

defendant charged with robbery in connection with the undercover drug deal, the

fellow Special Agent provided testimony, as did the appellant; and on

February 4, 2014, the appellant told two supervisors that there was a discrepancy

between the sworn testimony of the fellow Special Agent and his own testimony.

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IAF, Tab 4. The appellant asserted that the discrepancy in the Special Agent’s

testimony constituted a violation of law, rule, or regulation. Id.

¶4 The administrative judge issued a comprehensive order setting forth what

was necessary for the appellant to establish the Board’s jurisdiction over his

appeal and, if he did so, how he could prove his claim. IAF, Tab 3. The

appellant responded. IAF, Tabs 10-11. The agency moved that the appeal be

dismissed for lack of jurisdiction. IAF, Tab 13.

¶5 The administrative judge issued an initial decision based on the written

record, dismissing the appeal for lack of jurisdiction. IAF, Tab 22, Initial

Decision (ID) at 2, 8. She found that, although it was clear from the record that

the appellant had asked OSC to review his allegations of reprisal, ID at 7, he did

not show that he gave OSC a sufficient basis to pursue an investigation that might

lead to corrective action and therefore did not satisfy the statutory exhaustion

requirement for his IRA appeal, ID at 8.

¶6 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.

¶7 On review, the appellant argues that, contrary to the administrative judge’s

finding, his disclosure was specific and detailed in that he clearly alleged a

violation of law regarding the testimony of the fellow Special Agent during the

criminal trial. PFR File, Tab 1 at 2-3, 5-6.

¶8 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective

action from OSC before seeking corrective action from the Board. Briley v.

National Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir.

2001); Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004). The Board

may consider only charges of whistleblowing that the appellant raised before

OSC. Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir.

1993); Coufal, 98 M.S.P.R. 31, ¶¶ 14, 18. To satisfy the exhaustion requirement,

the appellant must inform OSC of the precise ground of his charge of

whistleblowing, giving OSC a sufficient basis to pursue an investigation that

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might lead to corrective action. Ellison, 7 F.3d at 1036; Coufal, 98 M.S.P.R. 31,

¶ 14. The test of the sufficiency of an employee’s charges of whistleblowing to

OSC is the statements he makes to OSC, not a post hoc characterization of those

statements. Ellison, 7 F.3d at 1036. An appellant may demonstrate exhaustion of

his OSC remedies through his initial OSC complaint and evidence that he

amended or supplemented his initial OSC complaint, including but not limited to,

OSC’s determination letter and other letters from OSC referencing the appellant’s

amended allegations, and the appellant’s written responses to OSC referencing

OSC’s discussion of the amended allegations. See Pasley v. Department of the

Treasury, 109 M.S.P.R. 105, ¶¶ 12-15 (2008); Kinsey v. Department of the Navy,

107 M.S.P.R. 426, ¶ 15 (2007). However, the Board will not consider the

appellant’s recharacterization of his complaint in his pleadings to the Board but

only the sufficiency of his complaint as he brought it before OSC. Jessup v.

Department of Homeland Security, 107 M.S.P.R. 1, ¶ 7 (2007).

¶9 Although the administrative judge apprised the appellant of what he must

show to establish that he exhausted his remedy before OSC, IAF, Tab 3 at 2, 5-6,

the documents he submitted did not establish exhaustion. The appellant did not

submit his initial OSC complaint, but only: an acknowledgment from OSC that

his electronic complaint had been received, IAF, Tab 10 at 15; an April 22, 2014

letter from OSC explaining its preliminary determination to close its inquiry into

his allegations, IAF, Tab 4 at 15-17; and OSC’s June 27, 2014 letter to the

appellant explaining its final determination to close its file on his complaint, 2 Id.

at 18-19. In describing the appellant’s complaint, OSC indicated that: he stated

only that he participated in the surveillance; during the incident, the fellow

Special Agent discharged his weapon; the appellant prepared a report; he later

learned that other agents were critical of him because of the contents of the

2

OSC refers to having considered the appellant’s “May 2, 2014, fax and e-mail

responses to [its] preliminary determination,” IAF, Tab 4 at 18, but the appellant did

not submit these documents to the Board.

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report; during the criminal trial, the defense attorney contrasted the fellow

Special Agent’s testimony with the appellant’s; and that he and other agents heard

the defense attorney’s statement. 3 Id. at 15-16. The administrative judge

considered these documents, ID at 7, but concluded that nothing the appellant had

provided indicated that he gave OSC a sufficient basis to pursue an investigation

that might lead to corrective action, ID at 8. Although the appellant attempts on

review to clarify and expand upon his disclosure, PFR File, Tab 1 at 3-6, we may

not consider any such recharacterization, see Jessup, 107 M.S.P.R. 1, ¶ 7. Thus,

the appellant has not shown error in the administrative judge’s findings that, in

the appellant’s communications with OSC, he did not provide a sufficient basis to

pursue an investigation that might lead to corrective action and that, having failed

to establish that he exhausted his remedy before OSC, his IRA appeal must be

dismissed for lack of jurisdiction. Yunus v. Department of Veterans Affairs,

242 F.3d 1367, 1371 (Fed. Cir. 2001) (holding 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 engaged in

whistleblowing activity by making a protected disclosure; and (2) the disclosure

was a contributing factor in the agency’s decision to take or fail to take a

personnel action).

¶10 On review, the appellant made certain allegations about the administrative

judge’s conduct, arguing that she verbally chastised him, did not return his calls

and otherwise ignored him, and that she allowed these events to influence her

decision. PFR File, Tab 1 at 2. An administrative judge’s conduct during the

course of a Board proceeding warrants a new adjudication only if the

administrative judge’s comments or actions evidence “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Bieber v. Department of

the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United

3

Before the Board, the appellant indicated that the defense attorney’s statement was

made during closing argument. IAF, Tab 4 at 3.

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States, 510 U.S. 540, 555 (1994)). Further, in making a claim of bias or prejudice

against an administrative judge, a party must overcome the presumption of

honesty and integrity that accompanies administrative adjudicators. Simmons v.

Small Business Administration, 115 M.S.P.R. 647, ¶ 10 (2011); Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). Moreover, an

allegation of bias by an administrative judge must be raised as soon as practicable

after a party has reason to believe that grounds for disqualification exist. Lee v.

U.S. Postal Service, 48 M.S.P.R. 274, 280-82 (1991). We find that, because the

appellant’s concerns about the administrative judge’s conduct do not evidence

anything that would render fair judgment impossible, and because the appellant

did not timely raise his concerns, his claim of bias must fail. 4

¶11 Finally, we note that the appellant has submitted numerous documents with

his petition for review. The first document consists of pages from an unrelated

court proceeding wherein the appellant testified in his official capacity. PFR

File, Tab 1 at 13-19. However, this document was submitted below, IAF, Tab 4

at 44-51, and therefore it is not new, Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980). The next document is a partial transcript of the July

2013 criminal trial upon which the appellant relies in this appeal, specifically, the

testimony of the fellow Special Agent. PFR File, Tab 1 at 20-41. In the absence

of a showing that this document was unavailable before the record was closed

despite the appellant’s due diligence, it is not new, Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980), and therefore we have not considered it.

The next document is the agency’s June 11, 2015 response to the appellant’s

4

The appellant also contends that the administrative judge violated 5 U.S.C.

§ 7702(a)(1) by not issuing the initial decision within 120 days. PFR File, Tab 1 at 4.

That provision applies to actions involving discrimination, but the appellant raised no

such claim in his appeal. To the extent he is suggesting that the administrative judge

took too long to decide this case, he has not shown that any delay constituted

adjudicatory error that prejudiced his substantive rights. Panter v. Department of the

Air Force, 22 M.S.P.R. 281, 282 (1984).

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Freedom of Information Act request regarding records related to himself. PFR

File, Tab 1 at 42-73. Although new, this document has no bearing on the

dispositive jurisdictional issue in this case. Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980) (explaining that the Board generally will not grant a

petition for review based on new evidence absent a showing that it is of sufficient

weight to warrant an outcome different from that of the initial decision).

Therefore, we have not considered it. The last document is an undated

memorandum in support of a motion to dismiss filed by the agency and the

Attorney General in an action brought by the appellant in the U.S. District Court

for the Northern District of Illinois. PFR File, Tab 1 at 74-78. Even if new, this

document, like the appellant’s Freedom of Information Act request, has no

bearing on the dispositive jurisdictional issue in this case and we therefore have

not considered it. Russo, 3 M.S.P.R. at 349.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. Court

of Appeals for the Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the U.S. Court of Appeals for the

Federal Circuit or any court of appeals of competent jurisdiction. The court of

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appeals must receive your petition for review within 60 days after the date of this

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time. You may choose to request review of the

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other

court of appeals of competent jurisdiction, but not both. Once you choose to seek

review in one court of appeals, you may be precluded from seeking review in any

other court.

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.

27, 2012). You may read this law as well as other sections of the United States

Code, at our website, http://www.mspb.gov/appeals/uscode/htm. Additional

information about the United States 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, and 11. Additional

information about other courts of appeals can be found at their respective

websites, which can be accessed through

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for your 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

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Merit Systems Protection Board neither endorses the services provided by any

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.