Opinion

Abigail Padilla v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Sep 15, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ABIGAIL L. PADILLA, DOCKET NUMBER

Appellant, DE-1221-16-0081-W-1

DEPARTMENT OF THE TREASURY, DATE: September 15, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Abigail L. Padilla, Denver, Colorado, pro se.

Emily Urban, Esquire, San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

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

because the appellant failed to make a nonfrivolous allegation that she engaged in

protected whistleblowing or was perceived as a whistleblower. Generally, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

grant such petitions 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 and

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The appellant filed this IRA appeal alleging that the agency took several

personnel actions against her in retaliation for making protected disclosures.

Initial Appeal File (IAF), Tabs 1-3, 6. On January 19, 2017, the administrative

judge issued an initial decision that dismissed the appeal for lack of jurisdiction,

finding that the appellant failed to make a nonfrivolous allegation that she

engaged in protected whistleblowing. IAF, Tab 45, Initial Decision (ID) at 9-11.

In the initial decision, the administrative judge explained that he had issued a

December 28, 2016 order regarding protected disclosures, which provided the

appellant with specific notice and an opportunity to address this particular

jurisdictional issue. ID at 11. He considered her responses to that order, but he

ultimately concluded that she failed to make a nonfrivolous allegation of a

protected disclosure, generally because her allegations were vague and

conclusory. ID at 9-13. He also found that, despite notice and opportunity, she

failed to make any nonfrivolous allegation that the agency perceived her as a

whistleblower. ID at 3 n.4. Thus, the administrative judge dismissed the IRA

appeal for lack of jurisdiction. ID at 14.

¶3 The appellant has filed a petition for review of the initial decision, and the

agency has filed an opposition to the petition. Petition for Review (PFR) File,

Tabs 1, 3.

ANALYSIS

¶4 We understand the appellant to be raising four main arguments on review :

(1) the administrative judge failed to provide her with adequate notice of her

jurisdictional burden, considering that she is a pro se appellant; (2) she is entitled

to certain discovery before the Board resolves the jurisdictional issue; (3) she

made a nonfrivolous allegation that she made protected whistleblowing

disclosures; and (4) the administrative judge should have considered her to be a

perceived whistleblower. PFR File, Tab 1. For the following reasons, we find

that her petition does not provide a persuasive reason to disturb the

initial decision.

The administrative judge adequately advised the appellant of her

jurisdictional burden.

¶5 The appellant alleges that the administrative judge gave her inadequate

notice of her jurisdictional burden, particularly because she is a pro se appellant.

PFR File, Tab 1 at 8. An administrative judge must inform a pro se appellant

how to establish Board jurisdiction. O’Keefe v. U.S. Postal Service, 95 M.S.P.R.

248, ¶ 6 (2003); see Burgess v. Merit Systems Protection Board, 758 F.2d 641,

643-44 (Fed. Cir. 1985). To ensure fairness when a pro se appellant has the

burden of proof, an administrative judge should advise her that she has not

provided the evidence to prove her claim prior to the close of the record.

O’Keefe, 95 M.S.P.R. 248, ¶ 6. This duty derives in part from the provision of

the Board’s regulations requiring administrative judges to exercise the authority

necessary to ensure that the record is fully developed and to see that there is a fair

and just adjudication of the appeal. Id.; see 5 C.F.R. § 1201.41(b)(5).

¶6 Here, the administrative judge issued a detailed jurisdictional order that set

forth the appellant’s burdens of proof at the jurisdictional and merits stages of an

IRA appeal and described the allegations and evidence she needed to submit.

IAF, Tab 5. Thereafter, the appellant filed a number of jurisdictional pleadings.

IAF, Tabs 6, 10-15, 17-21, 27-28, 31-32, 36, 38. The administrative judge

subsequently issued an Order Regarding Protected Disclosures Exhausted with

Office of Special Counsel. IAF, Tab 41. Therein, he set forth at length the

appellant’s jurisdictional burden and her burden of proof on the merits, including

citations to relevant case law, statutes, and regulations. Id. at 1-6. He also

addressed in detail her submissions to date, id. at 6-10, and opined that she had

not yet nonfrivolously alleged a protected disclosure that had been exhausted with

Office of Special Counsel (OSC), id. at 6. To further assist the appellant, he cited

statutes and numerous cases explaining the types of allegations that would allow

her to meet her jurisdictional burden. Id. at 6-10. He set the close of the record

and ordered the parties to submit evidence and argument by that date regarding

whether the appellant had nonfrivolously alleged a protected disclosure that she

had exhausted with OSC. Id. at 10. Both the appellant and the agency responded.

IAF, Tabs 42-44.

¶7 Given these facts, we find that the administrative judge gave this pro se

appellant sufficient notice of her jurisdictional burden. The administrative judge

issued multiple orders that were calculated to apprise the appellant of what she

needed to do to establish the Board’s jurisdiction in her appeal and proceed to the

merits. Additionally, he specifically advised her, prior to the close of record, that

she had not yet nonfrivolously alleged a protected disclosure that had been

exhausted with OSC. See O’Keefe, 95 M.S.P.R. 248, ¶ 6. Accordingly, we find

that her notice argument is unavailing.

The administrative judge did not abuse his discretion in discovery matters.

¶8 In her petition for review, the appellant asserts that she was denied

necessary discovery by which she would have obtained proof regarding potential

violations of the Taxpayer Browsing Protection Plan, Pub. L. No. 105-35,

111 Stat. 1104 (1997) (codified as amended in scattered sections of Title 26 of the

U.S. Code). PFR File, Tab 1 at 8. She does not, however, identify any ruling by

the administrative judge denying her discovery requests. She also does not

explain how any information she might have gained from discovery at this stage

of the proceedings would have helped her meet her jurisdictional burden, which

was only to set forth nonfrivolous allegations. The jurisdictional issue is what the

appellant reasonably believed at the time of her alleged disclosures, and all of the

information she needed to make nonfrivolous allegations should have been within

her knowledge and control without the need for discovery. See Sobczak v.

Environmental Protection Agency, 64 M.S.P.R. 118, 122 (1994) (holding that an

appellant was not entitled to discovery in an IRA appeal because he had failed to

plead facts sufficient to set forth a nonfrivolous jurisdictional allegation) ; see

also Briscoe v. Department of Veterans Affairs, 55 F.3d 1571, 1574 (Fed. Cir.

1995). Accordingly, we find that her discovery argument is not a basis for

disturbing the initial decision.

The appellant has not shown that the administrative judge erred in finding that

she failed to make a nonfrivolous allegation that she made a protected

whistleblowing disclosure.

¶9 To the extent that the appellant’s petition for review represents a general

challenge to the administrative judge’s findings that she failed to nonfrivolously

allege that she made a protected disclosure, we find no basis to disturb the initial

decision. The Board does not require a pro se appellant to litigate matters with

the precision of an attorney, but a party whose submissions lack clarity risks

being found to have failed to meet her burden on a part icular matter. See

Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 8 (2000). Such is the case

here. Despite numerous opportunities to clarify her claims, the appellant’s

pleadings remain difficult to decipher, and her allegations primarily consist of

conclusory assertions lacking the necessary specifics. When she has provided

details, the presentation is often convoluted and, even when comprehensible,

insufficient to meet her jurisdictional burden.

¶10 As described in the initial decision, the appellant’s first alleged protected

disclosure is her alleged January 3, 2011 verbal report to a superior. ID at 9;

IAF, Tab 14 at 77. The administrative judge found that the appellant failed to

clarify the specifics of her alleged report in a way that would constitute a

nonfrivolous allegation that she reasonably believed she was disclosing

information evidencing the types of wrongdoing that would trigger whistleblower

protection. ID at 9.

¶11 The appellant’s second alleged protected disclosure is her alleged

February 1, 2011 verbal report to a training coordinator about an apparent

confrontation and harassment by a commanding officer while she was deployed in

St. Louis, Missouri. ID at 9; IAF, Tab 14 at 13-14. The administrative judge

found that these assertions were purely allegations of unlawful discrimination

covered by 5 U.S.C. § 2302(b)(1) and (b)(9), which generally cannot be the

subject of an IRA appeal, and, in any event, she failed to make a nonfrivolous

allegation that she disclosed information that a reasonable person would have

believed evidenced any wrongdoing of the types described in 5 U.S.C.

§ 2302(b)(8), which prohibits whistleblower reprisal. ID at 9-10.

¶12 The appellant’s third disclosure is that, on April 22, 2014, she reported in

writing to a superior that an officer and his deputies created a workplace

disturbance, engaged in discourteous and unprofessional behavior, failed to

observe Internal Revenue Service regulations or procedures, engaged in

“fighting/physical assaults/threats/battery,” and were insubordinate in failing to

follow a management directive. ID at 10; IAF, Tab 4 at 39. The administrative

judge found that the appellant’s third alleged disclosure was too vague and

imprecise to qualify as a protected disclosure and that she failed to make a

nonfrivolous allegation that she disclosed information that a reasonable person

would have believed evidenced any wrongdoing of the types described in

section 2302(b)(8). ID at 10.

¶13 The appellant’s fourth alleged disclosure is that, on an unspecified date, she

made a “formal complaint” regarding an acting manager who allegedly refused to

serve a taxpayer. ID at 10-11; IAF, Tab 36 at 9. The administrative judge found

that the appellant’s allegations were too vague to qualify as a protected disclosure

and, based on the limited details provided, she had disclosed nothing more than a

debatable or de minimis allegation of mismanagement. ID at 11.

¶14 We have considered the appellant’s arguments on review, and it is unclear

whether she is even discussing matters that she purports to have disclosed on

January 3, 2011. In any event, we find that she has not demonstrated any error in

the administrative judge’s conclusion that she failed to make a nonfrivolous

allegation that her first alleged disclosure was a protected whistleblowing

disclosure. See, e.g., McCorcle v. Department of Agriculture, 98 M.S.P.R. 363,

¶ 21 (2005) (holding that vague and conclusory assertions did not constitute

nonfrivolous allegations of protected whistleblowing). Her petition for review

appears to be supplementing her second, third, and fourth alleged protected

disclosures by citing a few examples of what she perceived to be misconduct by

agency employees. PFR File, Tab 1 at 6-7. Even if we were to consider these

additional examples supplied on review, 2 we would find that they are not a

sufficient reason to change the outcome on the dispositive jurisdictional issue. 3

Generally, the Board will not consider evidence or argument submitted for the first

time with the petition for review absent a showing that it was unavailable before the

record was closed despite the party’s due diligence. See Banks v. Department of the

Air Force, 4 M.S.P.R. 268, 271 (1980).

Pursuant to the Whistleblower Protection Enhancement Act of 2012, Pub. L.

No. 112-199, 125 Stat. 1465, a covered individual may bring an IRA appeal seeking

corrective action for reprisal based not only on whistleblowing disclosures described in

The appellant failed to nonfrivolously allege that the agency perceived her to be

a whistleblower.

¶15 The appellant also argues that the administrative judge failed to consider

that the agency perceived her as a whistleblower. PFR File, Tab 1 at 9-10. In

such a case, it is immaterial whether the appellant actually made protected

disclosures; instead, to establish jurisdiction, she must nonfrivolously allege that

agency officials appeared to believe that she engaged or intended t o engage in

whistleblowing. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 8 (2011).

The other jurisdictional elements remain the same. Id., ¶ 9. In particular, the

appellant must establish that she exhausted her remedies with OSC on the issue of

whether the agency perceived her as a whistleblower. Id. She also must

nonfrivolously allege that the agency’s perception of her as a whistleblower

contributed to its decision to take or not take the personnel action at issue . Id.,

¶¶ 9-10.

¶16 We disagree that the administrative judge ignored the appellant’s contention

she was perceived to have been a whistleblower. Instead, he found that she failed

to make a nonfrivolous allegation of the Board’s jurisdiction in that respect,

despite having received notice of her jurisdictional burden and an opportunity to

respond. ID at 3 n.4; IAF, Tab 41 at 3 n.4. On review, the appellant does not

provide any particular information to support her claim that she was perceived as

a whistleblower, except to state that an agency official to whom she allegedly

made the first protected disclosure asked her to document the matters she

disclosed and that a coworker noticed that she frequently documented the events

5 U.S.C. § 2302(b)(8) but also on certain other protected activity described in 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221(a). The administrative judge

found that the appellant did not assert protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D). ID at 2 n.3. Her petition for review contains a

statement that she was a victim of prohibited personnel practices described in 5 U.S.C.

§ 2302(b)(8) and (b)(9)(A)(i), (B), (C), and (D). PFR File, Tab 1 at 4. Her arguments

on review, however, do not further explain the basis of any reprisal claim based on

alleged activity protected under the relevant provisions of section 2302(b)(9), and we

will not disturb the initial decision in this regard.

occurring around her. PFR File, Tab 1 at 9-10. She also produced a copy of a

performance appraisal for the period ending January 31, 2013, which states that

she “let[ ]her manager know when positive and negative employee issues need to

be addressed.” IAF, Tab 42 at 65-66. These facts alone, however, would not be

sufficient to support a nonfrivolous allegation that the agency perceived her as a

whistleblower or that she exhausted such an allegation with OSC. 4

¶17 Accordingly, the administrative judge correctly found that the appellant did

not establish the Board’s jurisdiction over her whistleblower appeal, and we thus

affirm the administrative judge’s dismissal.

NOTICE OF APPEAL RIGHTS 5

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

Because we find that the appellant failed to make a nonfrivolous allegation under a

perceived whistleblower theory, we find it unnecessary to resolve the question, raised

by the agency, of whether she proved that she exhausted such a claim with OSC. PFR

File, Tab 3 at 17.

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.

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).

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. ____ , 137 S. Ct. 1975 (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. 6 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:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent j urisdiction 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.