Opinion

Rene Ortiz v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 28, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RENE ORTIZ, DOCKET NUMBER

Appellant, SF-0752-21-0536-I-1

DEPARTMENT OF VETERANS DATE: July 28, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph B. Frueh, Esquire, and William D. Carter, Esquire, Sacramento,

California, for the appellant. 2

Camille D.S. Stroughter, Esquire, Oakland, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The appellant’s representatives of record have not withdrawn their representation.

However, it appears from the record that the appellant has, at all times, represented

himself. E.g., Petition for Review (PFR) File, Tab 1 at 8-9. The Board liberally

construes pleadings filed by pro se litigants and has done so here. See, e.g., Becker v.

Department of Veterans Affairs, 76 M.S.P.R. 292, 298 n.4 (1997).

FINAL ORDER

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

dismissed his involuntary resignation and breach of contract 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

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 and correct harmless adjudicatory error, we AFFIRM the initial decision.

¶2 The administrative judge found that because the Board lacks jurisdiction

over the appellant’s resignation, it also lacks authority to determine whether the

agency breached an alleged contract with him regarding his resignation. Initial

Appeal File, Tab 12, Initial Decision (ID) at 5 n.4, 8. This reasoning w as in

error. The Board retains jurisdiction to enforce a settlement agreement that has

been entered into the record for that purpose, independent of its jurisdiction over

the underlying matter appealed. Delorme v. Department of the Interior,

124 M.S.P.R. 123, ¶¶ 14-21 (2017). However, we agree that the Board lacks

jurisdiction over the alleged contract on other grounds. Specifically, neither

party entered the alleged contract into the record, and the administrative judge did

not accept it for enforcement. Id., ¶¶ 16, 21. Therefore, we lack enforcement

authority over it.

¶3 Although the administrative judge dismissed the appeal for lack of

jurisdiction, she alternatively dismissed it as untimely filed. ID at 2 n.1. T he

Board has held that the issues of timeliness and jurisdiction are generally

inextricably intertwined in a constructive adverse action appeal and that the

jurisdictional issue should be decided before reaching the timeliness issue.

Petric v. Office of Personnel Management, 108 M.S.P.R. 342, ¶ 6 (2008);

Hanna v. U.S. Postal Service, 101 M.S.P.R. 461, ¶ 6 (2006). The reason for this

rule is that a failure to inform an employee of Board appeal rights may excuse an

untimely filed appeal, and whether the agency was obligated to inform the

employee of such appeal rights depends on whether the employee was affected by

an appealable action. Hanna, 101 M.S.P.R. 461, ¶ 6. Here, the administrative

judge found the Board lacks jurisdiction over the appeal, or alternatively

dismissed the appeal as untimely. ID at 2 n.1. Because they are inextricably

intertwined, the timeliness issue need not have been addressed absent a fin ding of

jurisdiction. However, the administrative judge’s alternative finding of

untimeliness was harmless because she correctly found the Board lacks

jurisdiction over the appeal. Absent jurisdiction over the appellant’s claims, we

need not address the appellant’s arguments on review concerning the timeliness

issue. Petition for Review File, Tab 1 at 9-10.

¶4 The administrative judge found that the appellant essentially failed to prove

the truth of the matters he asserted because his statements were unswor n. ID at 6.

Unsworn statements are evidence, and the fact that the statements are unsworn

goes to their weight and probative value. Scott v. Department of Justice,

69 M.S.P.R. 211, 228 (1995), aff’d per curiam, 99 F.3d 1160 (Fed. Cir. 1996)

(Table); see Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-84 (1981)

(holding that hearsay evidence is admissible in Board proceedings and the

assessment of its probative value necessaril y depends on the circumstances of

each case). Further, in determining whether the appellant has made a

nonfrivolous allegation of jurisdiction, the administrative judge may not weigh

the evidence. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). We

find the administrative judge’s error in suggesting the appellant’s unsworn

statements had no evidentiary value and implicitly weighing their probative value

at the jurisdictional stage was harmless. We agree with her conclusion that the

appellant failed to make a nonfrivolous allegation of Board jurisdiction over his

appeal because his allegations were vague and implausible. ID at 6 -7; see

Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 7 (2016) (explaining that

conclusory and vague allegations do not meet the nonfrivolous pleading

standard), aff’d per curiam, 679 F. App’x 1006 (Fed. Cir. 2017); 5 C.F.R.

§ 1201.4(s)(1)-(2) (defining nonfrivolous allegations, as relevant here, as

assertions that are more than conclusory and are plausible on their face). 3

¶5 Because none of the above errors impact the ultimate conclusion that the

Board lacks jurisdiction over the appellant’s involuntar y resignation appeal, we

decline to grant review. See Panter v. Department of the Air Force, 22 M.S.P.R.

281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to a

party’s substantive rights provides no basis for reversal of an initial decision).

NOTICE OF APPEAL RIGHTS 4

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

Board’s 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

To the extent that the appellant cites for the first time on review statutes regarding the

Board’s jurisdiction over decisions by the Office of Personnel Management (OPM) on

retirement benefits, we find that those statutes do not provide a basis for finding

jurisdiction over his alleged involuntary resignation and breach of contract claims. PFR

File, Tab 1 at 1-2 & n.1. Further, there is no evidence that OPM has issued a final

decision on any retirement benefit. In general, the Board has jurisdiction over OPM

determinations affecting an appellant’s rights or interests only after OPM has issued a

final decision. See Reid v. Office of Personnel Management, 120 M.S.P.R. 83, ¶ 6

(2013).

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.

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).

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. 5 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