Petition for Writ of Certiorari — DeMaio v. Merit Systems Protection Board

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01 266 auc ' 3 2001

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No. 01-3022

IN THE

Supreme Court of the United States

LOUIS J. DE MAIO

. Petitioner

DEPARTMENT OF THE TREASURY

| and

THE MERIT SYSTEMS PROTECTION BOARD

On Petition For Writ Of Certiorari

To The U.S. Court Of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Louis J. De Maio, Esq.

Counsel of Record

P.O. Box 347

Bel Air, Md. 21014

(410) 838-2404

QUESTIONS PRESENTED FOR REVIEW

1). Whether a federal employee is protected against

prohibited personnel practices under the purview of the

Civil Service Reform Act of 1978 ?

2). Whether a federal employee can receive a fair and

impartial hearing before an Administrative Law Judge

when the federal Agency, a party to the litigation, has the

exclusive right to remove the Administrative Law Judge

from office under the Code of Federal Regulations ?

Be ne eee ee ee ae

PARTIES TO THE PROCEEDING

Petitioner:

Louis J. De Maio

Respondents: |

Department of the Treasury

Merit Systems Protection Board

ii

TABLE OF CONTENTS

Questions Presented for Review

Parties to the Proceedings

Table of Contents

Table of Authorities

Jurisdiction

Statement of Facts

Argument

Conclusion

Appendix:

Decision U.S. Circuit Court of Appeals

for Federal Circuit

Decision of MSPB

Decision of Administrative Law Judge

ill

Page

il

aii

TABLE OF AUTHORITIES

CASES Page

Dugan v Ramsay 560 F. Supp 1230 4,7

Lopez v Dept. of Interior 5 13 88

MSPR Doc. De 03518810007

37 MSPR 24 5

Stover v Dept. of Interior (1994

MSPB) 63 MSPR 46 5

Degraaff v Dept. of Veterans

Affairs (1997 MSPR) 73 MSPR 574 5

—_ nee

STATUTES

28 USCA

Civil Service Reform Act of 1978

5USC 7121 (d)

Civil Rights Act 1964 as amended

5 USC 2302 (b)(1)

5USC7702

5USC7701

Y

a

a x

NWOUWWOR

Ad

CODE OF FEDERAL REGULATIONS

5 CFR 1201.101 4

5 CFR 1201.102 4

5 CFR 1201.103 4

5 CFR 1209.5 (a) 7 |

: |

8

~

5 CFR 1209.5 (b) 6

5 CFR 1201.133 7,

U.S. Constitution

14th amendment 6,7,8

OTHER AUTHORITIES

NORD Agreement Article 4, 41 2

iv

—

sensi.

JURISDICTION

On May 16, 2001 the Untied States Court of Appeals

for the Federal Circuit dismiss the Petitoners’ appeal for

lack of jurisdiction because the Board did not commit legal

error. From that decision comes this appeal under Title

28 of the United States Code Annotated.

STATEMENT OF FACTS

The Petitioner is employed as an Attorney (Estate

Tax) GS-905-12 by the Department of the Treasury, Internal

Revenue Service hereinafter called (Agency).

On 7-31-98 the Petitioner’s group manager, Ronald

Watt, issued a written memorandum to the Petitioner to

“no change “ an estate tax examined case that had been

returned by District Counsel with a recommended

deficiency exceeding $250,000.

On 10-15-98 a second case was returned from

District Counsel who refused to issue a Statutory Notice

of Deficiency where the tax liability exceeded $250,000.

The group manager issued a second written

memorandum to the Petitioner “to settle the case.”

The Petitioner’s Position Description only allows for

the determination of the correct tax and there is no critical

element that allows for the authorization “to settle cases.”

Settlement authority applies only to District Counsel

GS-905-14 and Appeals Officers GS-905-14.

The Petitioner refused “to settle” the two cases on

the premise that the Petitioner is not authorized under

his Position Description and such direction by the Agency

is a Prohibited Personnel Practice since such action is:

“a significant change in duties or responsibilities

which is inconsistent with the employee’s salary

and grade level.”

On 1-22-99 the Agency in a written reprimand to

the Petitioner for his refusal to comply with the written

directions of settling cases, incorporated in the letter of

1

reprimand is the written statement issued by the Chief of

Examination, Monica Baker, which states:

“your misconduct raises serious concerns about

your judgment, reliability, veracity, trustworthiness |

and ethical conduct.” !

This libelous statement is the third Prohibited

Personnel Practice engaged in by the Agency since it

reflects on:

“the character, loyalty or suitability of such

individual.” |

Based on these three prohibited personnel practices,

which are in writing and not in dispute as to their contents,

the Petitioner filed a grievance under the NORD

Agreement, the negotiated agreement between the

Agency and the National Treasury Employees Union.

The Petitioner filed a grievance under Article 4 of

the NORD Agreement entitled Protection Against

Personnel Practices. Article 41 of the NORD Agreement

states in part:

“any claimed violation, misinterpretation or

misapplication of any law, rule or regulation

affecting conditions of employment”.

The remedy sought was modification of the

Petitioner’s Position Description permitting settlement

authority.

Appeals has settlement authority because it is the

only Agency office that can consider hazards of litigation |

when evaluating a case; retroactive promotion to GS-905-

14 to enable the Petitioner’s salary and grade

commensurate with Appeals, back pay with interest

coupled with compensatory and punitive damages for

the written libelous and false written statement made by

the Agency as to the Petitioner’s character, loyalty and

e

wwe | a er ee ei.

The Agency denied the grievance and from that

denial the Petitioner appealed to the Merit Systems

2

ee

Protection Board hereinafter called (MSPB) within the

purview of the Civil Service Reform Act of 19785 USC

7121 (d) which states:

“An aggrieved employee affected by a prohibited

personnel practice under 2302 (b)(1) of this title

which also falls under the coverage of the

negotiated grievance procedure may raise the

matter under a statutory procedure or the

negotiated procedure, but not both. An employee

shall be deemed to have exerciséd his option under

this subsection to raise the matter under either a

statutory procedure or the negotiated procedure

at such time as the employee timely initiates an

action under the applicable statutory procedure or

timely files a grievance in writing in accordance

with the provision of the parties negotiated

procedure, whichever event occurs first. Selection

of the negotiated procedure in no manner

prejudices the right of an aggrieved employee to

request the MSPB to review the final decision

pursuant to section 7702 of this title in case of any

personnel action that could have been appealed

to the Board.”

In addition to the grievance being based on three

prohibited personnel practices, there is an allegation of

political favoritism to taxpayers. Also incorporated in the

grievance is reprisal based on discrimination since the

Petitioner previously filed a formal EEO Complaint in a

denial of a promotion. Since the prohibited personnel

practices did not apply to any other attorneys in the group

and only to the Petitioner, it appears that the reprisal is a

violation of the Civil Rights Act of 1964 as amended. The

grievance was made part of the appeal as Exhibit 7 and

discrimination is stated in 32 A of the appeal. The issue

of discrimination alone would warrant jurisdiction to

MSPB under 5 U S.C 2302 (b)(1). The issue of reprisal

3

ee

based on discrimination is part of the record.

An appeal to MSPB occurred on 2-17-2000 No.

PH-1221-00-0188-W-1.

By acknowledgment order dated 2-18-2000 directed -

the Agency to contact the Petitioner within 35 days to

discuss the possibility of settlement.

The Administrative Law Judge hereinafter called

(ALJ) granted the Agency an extension of time to respond

by Order dated March 8, 2000. The Agency representative

did not enter his appearance until March 9, 2000. It is

apparent that the ALJ acted in an ex parte manner in

violation of 5 CFR 1201.101, 5 CFR 1201.102 and 5 CFR |

1201.103. |

The ALJ subsequently granted all the Agency’s

Motions, denied all the Petitioner’s Motions, removed

documents from the official record i.e request to produce

documents and ultimately ruled in favor of the Agency

100 % and against the Petitioner 100 %. The ALJ, in

essence, assumed jurisdiction of the appeal, decided

everything in favor of the Agency except to hear the case

on the merits.

The ALJ dismissed the appeal based on lack of

jurisdiction by decision dated April 17, 2000.

The full Board refused to grant a hearing and

sustained the ALJ on the premise that there was no error

in law or by the regulations. |

From a decision of the Board an appeal was taken |

to the United States Court of Appeals for the Federal

Circuit 01-3022. |

The United States Court for the Federal Circuit

denied the Petitioner a hearing and ruled that the MSPB

does not have jurisdiction to adjudicate prohibited

personnel practices.

The Court refuse to follow the case of Dugan v

Ramsey 560 F. Supp. 1230 decided in the Federal District

Court of Rhode Island where the Court ruled that MSPB

4

———a_eaaQaQQQVuVM_

has jurisdiction over allegations of prohibited personnel

practices brought before it by direct appeal pursuant to 5

USC/7701.

Additionally, the Court refused to consider the case

of Lopez v Department of Interior 5-13-88, MSPB Doc.

No. DE 03518810007, 37 MSPB 24 which states allegations

of prohibited personnel practices can provide MSPB with

jurisdiction over an employee’s appeal despite provision

in the negotiated grievance procedure stating that it is

the exclusive means of resolving matters which falls

within its coverage for employees who alleges prohibited

personnel practices under 5 USCS 2302 (b)(1).

The Court did not consider Stover v Department of

Interior (1994 MSPB) 63 MBPR 46 where the Appellant

who alleges that he had disclosed violation of Agency

Rules and Regulations as well as gross mismanagement

and abuse of authority, a claim that entitled him to

jurisdiction hearing.

Lastly, an administrative judge erred in dismissing

a whistleblowers appeal for lack of jurisdiction since he

neglected to advise the Appellant of the requirements for

establishing jurisdiction. Degraaff v Department of

Veterans Affairs (1997 MSPB) 73 MSPR 574.

There is sufficient law within the Civil Service

Reform Act of 1978 and the Code of Federal Regulations

case law that indicates the MSPB does have jurisdiction

to adjudicate appeals involving protection to federal

employees against Agency’s involved in prohibited

personnel practices. The Court erred in not remanding

the case to MSPB for a hearing on the merits.

ARGUMENT

With evidence in the record of written definitive

violations of three prohibited personnel practices, political

favoritism in tax administration and reprisal based on

discrimination before the MSPB on appeal, to assert that

MSPB lacks jurisdiction to hear the case on the merits is

an absolute travesty of justice. The ALJ has protected the

Agency against any accountability or responsibility which

is grossly inconsistent with the protection of federal

employees as stated in the Civil Service Reform Act of

1978. The Agency is essentially protected from any wrong

doing and with partial ruling by the ALJ has a form of

immunity against any charges of any nature. Such

treatment to the Agency was exemplified in his case.

For example, when the Petitioner filed an appeal,

the ALJ imposed the burden of proof of jurisdiction and

timeliness of the appeal by the Petitioner. These issues

were not raised by the Agency but by the ALJ. It would

appear that any preliminary issues should be raised by

the parties and not the ALJ. Conversely, the ALJ granted

the Agency an extension of time to respond to the appeal

before the Agency representative even enter his

appearance and conducted in an ex parte manner. No

notice given to the Petitioner who is the attorney of record.

Is this equal protection under the 14th amendment to the

Constitution? The ALJ originally assumed jurisdiction

over the appeal and proceeded to rule 100% in favor of

the Agency. When it came time to hear the appeal on the

merits, the ALJ asserted MSPB lacked jurisdiction. Is this

due process under the law of the 14th amendment to the

Constitution? If the ALJ did not have jurisdiction in this

appeal the ALJ should have been precluded from granting

extensions, ruling on motions, denying motions removing

documents from the record or act in an ex parte manner.

The ALJ gave no reason why 5 CFR 1209.5 (b) does not

apply in this case.

6

The full Board for MSPB refuse to grant a hearing

to the Petitioner and the decision lacks any rationale as

to the partiality of the ALJ of why MSPB does not have

jurisdiction to adjudicate issues involving prohibited

personnel practices.

The U.S. Court of Appeals for the Federal Circuit

went through great lengths in its decision to state that in

whistleblowing cases, the Petitioner must first seek

corrective action from Special Counsel before appealing

to the Board as stated in 5 CFR 1209.5 (a). However the

decision is completely devoid of why 5 CFR 1209.5 (b)

does not apply which gives the Petitioner the option either

to seek corrective action from Special Counsel before

appealing to the Board or to take the appeal directly with

the Board. It is a denial of due process under the 14th

amendment to the Constitution when the Petitioner elects

to appeal to the Board when the option is exercised under

5 CFR 1209.5 (b). Appealing to the Board directly gives

MSPB the jurisdiction to hear the case on the merits. The

Board is incorrect when it stated that there was no

violation of law or regulations by the ALJ.

The U.S. Court of Appeals for the Federal Circuit

refuse to follow Dugan v Ramsay 560 F. Supp. 1230 in the

United States District Court for Rhode Island where the

Court ruled that the MSPB does have jurisdiction over

allegation of prohibited personnel practices brought

before it by direct appeal pursuant to 5 U SC 7701. The

U.S. Court of Appeals for Federal Circuit refusal to follow

his case which is essentially the identical issues of

jurisdiction of MSPB to adjudicate cases involving

prohibited personnel practices. The denial of the Federal

Circuit to follow this significant case is a denial of due

process under the 14th amendment to the Constitution.

Although this case was reversed on appeal for other

reasons, it was not for lack of jurisdiction.

The paramount regulation is 5 CFR 1201.133 which

7

gives the Agency the exclusive right to file a complaint

against the ALJ including the right to remove the ALJ from

office. In no forum of legal jurisdiction does a party to the

litigation have the right to remove the judge. Such a

regulation gives the Agency an unfair advantage by

having dominion and control over those who decide the

cases. The ALJ lack any independence and are fully

cognizance that to many cases decided against the Agency

tantamount to job removal. Job retention should never

be the basis of deciding a case. This regulation creates an

unlevel and slanted forum and grossly unfair to all those

seeking remedies under the law. Regulation 5 CFR

1201.133 is a denial of equal protection under the law as

stated in the 14th amendment to the Constitution. Such a

regulation, even if not exercised, but the mere threat of

removal is sufficient to give an incorrect decision. It is

not a question if 5 CFR 1201.133 should be abolished, it is

a question that 5 CFR 1201.133 must be abolished.

CONCLUSION

There are over 1.8 million federal employees. Most,

but not all, federal employees are covered under the Civil

Service Reform Act of 1978 and MSPB. Regardless of the

issue, the percentage of federal employees that are

successful before MSPB is less than 20 %. The Agency is

successful in over 80 % of the time and the reason is

abundantly clear. The Agency, a party to the litigation,

has the exclusive right under the Code of Federal

Regulations to remove the ALJ from his position. Job

retention should never be the basis of deciding the rights

of this Petitioner or any other federal employee seeking

justice before MSPB.

WHEREFORE, the Petitioner prays that this Honorable

Court grant the Petitioner’s Writ of Certiorari.

Respectfully submitted,

Louis J. De Maio, Esq.

P.O. Box 347

Bel Air, Md. 21014

(410) 838-2404

APPENDIX

APP.

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is

not citable as precedent. It is a public record. This

disposition will appear in tables published periodically.

United States Court of Appeals

for the Federal Circuit

01-3022

LOUIS J. DE MAIO,

V. Petitioner,

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

DECIDED: May 16, 2001

Before RADER, Circuit Judge, PLAGER, Senior Circuit

Judge, and DYK, Circuit Judge. PER CURIAM

Louis J. De Maio (“Petitioner”) seeks review of the

final decision of the Merit Systems Protection Board

(“Board”) dismissing his appeal for lack of jurisdiction.

Because the Board did not commit legal error, we affirm.

BACKGROUND

Petitioner is employed by the Department of the

Treasury, Internal Revenue Service (“agency”) as an

attorney. In 1998, petitioner was directed by his group

Al-1

~

manager to settle certain tax cases but refused to do so.

Petitioner alleged that he was not authorized to settle

cases because such an action would involve a significant

change in his duties and responsibilities that would be

inconsistent with his position description, salary, and

grade. On January 22, 1999, petitioner received a written

reprimand from the agency for his refusal to comply with

his manager’s directions.

Petitioner filed a grievance at the district level, which

was denied. On February 17, 2000, petitioner filed an

appeal with the Board charging the agency with having

engaged in prohibited personnel practices by directing

him to settle the cases that he allegedly was not authorized

to settle and for sending him a reprimand letter that

questioned his veracity, trustworthiness, and ethics.

Petitioner alleged that the agency’s actions were based

on his whistleblower activities and submitted two letters

he had sent to an agency superior, which he claimed

contained protected disclosures.

In the Board’s initial decision, the administrative

judge dismissed petitioner’s appeal for lack of

jurisdiction. De Maio v. Dep’t of the Treasury, No. PH-

1221-00-0199-W-1 (M.S.P.R. Apr. 17, 2000). The

administrative judge held that the Board had jurisdiction

only if (1) the matter appealed was an “otherwise

appealable action” or (2) petitioner had first sought

corrective action from the Office of Special Counsel

(“OSC”). The administrative judge found that the matter

was not an “otherwise appealable action” under 5 C.ER.

§ 1209.2(b)(2), and that petitioner had not exhausted his

remedies before the OSC, as prescribed by 5 U.S.C. §

1214(a)(1).

Petitioner’s subsequent petition to the Board was

denied on September 5, 2000. This petition for review

followed.

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DISCUSSION

Decisions of the Board must be sustained unless they

are arbitrary, capricious, not in accordance with law,

obtained without procedures required by rule, law, or

regulation, or unsupported by substantial evidence. See

5 U.S.C. § 7703(c); Hayes v. Dep't of the Navy, 727 F.2d

1535, 1537 (Fed. Cir. 1984). Whether the Board has

jurisdiction to adjudicate a case is question of law, which

this court reviews do novo. Forest v. Merit Sys. Prot. Bd.,

47 F3d 409, 410 (Fed. Cir. 1995). When an individual

appeals to the Board, he has the burden of proving, by a

preponderance of the evidence, that the Board has

jurisdiction. id; 5 C.F.R. § 1201.56(a)(2). The question in

this case is whether the Board erred in concluding that it

lacked jurisdiction to hear petitionees appeal.

The Board’s jurisdiction is limited to that expressly

granted by statute or regulation. Cruz v. Dep’t of the Navy

, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc). Petitioner

contends that the Board has jurisdiction to review and

decide his appeal based on 5 U.S.C. § 7701(a). This court

has held, however, that § 7701 confers jurisdiction over a

prohibited personnel practice only when the prohibited

personnel practice is otherwise appealable to the Board

by law, rule, or regulation. Brodt v. Merit Sys. Prot. Bd.,

11 F.3d 1061, 1062 (Fed. Cir. 1993). As the Board found, no

statute or regulation makes the actions of which petitioner

complains appealable to the Board under § 7701. Petitioner

cites 5 U.S.C. § 7701 (c)(2) for the proposition that the

Board has jurisdiction to adjudicate claims concerning

prohibited personnel practices. Section 7701 (c)(2) states

that an agency’s decision cannot be sustained by the Board

if the decision is shown to have been based ona prohibited

personnel practice. Although this section offers a defense

against action by an agency, it is inapplicable to the

threshold question of jurisdiction, which is addressed by

§ 7701 (a).

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Petitioner further relies on Dugan v. Ramsey, 560 F.

Supp. 1230 (D. R.I. 1993), rev’d, 727 F.2d 192 (1st Cir. 1984),

for the proposition that the Board has jurisdiction over

allegations of prohibited personnel practices. In that case,

the district court states that § 7701 did not make

employment eligibility status disputes directly appealable

to the Board, id. at 1232.33, and denied district court

review because Dugan had not exhausted his

administrative remedies by first filing a charge with the

OSC. Dugan, 560 F. Supp. at 1234-35. The First Circuit

reversed on the jurisdictional question, finding that the

government had waived the exhaustion of remedy

requirement. Dugan, 727 F.2d at 194. The First Circuit did

not hold that § 7701 confers jurisdiction for direct appeals

to the Board over disputes involving prohibited personnel

practices. Here, because the agency actions of which

petitioner complains are not directly appealable to the

Board by any law or regulation, he may not file a direct

appeal from them under § 7701.

In the case of personnel actions not directly

appealable to the Board, an individual is required to

exhaust administrative remedies by first filing a complaint

with the OSC, which is responsible for investigating such

claims and seeking corrective action from the Board where

it deems appropriate. 5 U.S.C. § 1214(a)(3); Briley v. Nat’

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

2001); Wren v. Merit Sys. Prot. Bd.,,681 F.2d 867, 873 (D.C.

Cir. 1982). Only when his administrative remedy has been

exhausted is an individual entitled to file an Individual

Right of Action appeal under 5 U.S.C. § 1221 from a

personnel action that is not otherwise appealable. See 5

U.S.C. § 1214(a)(3), 1221 (a); Marano v. Dep’t of Justice, 2

F.3d 1137,1139 (Fed. Cir 1993). To the extent that Dugan,

which did not even address the current exhaustion

requirement, suggests that exhaustion of remedies

available with the OSC is not required, we disagree with

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the decision.

See Briley, 236 F.3d at 1377; Willis v. Dep’t of Araic., 141

F.3d 1139, 1142 43 (Fed. Cir. 1999). Since petitioner has

not exhausted his remedies before the OSC, we

conclude that the Board did not err in finding that it

lacked jurisdiction to review his appeal.

COSTS

No costs.

Al1-5

APP. 2

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LOUIS J. DE MAIO, DOCKET NUMBER

Appellant, PH-1221-00-0188-W-1

V.

DEPARTMENT OF THE TREASURY,

Agency.

DATE: Sep 5, 2000

Louis |, De Maio, Bel Air, Maryland, pro se.

Robert E. Norman, Esquire, Atlanta, Georgia,

for the agency.

BEFORE

Beth S. Slavet, Acting Chairman

Susanne T. Marshall, Member

FINAL ORDER

The appellant has filed a petition for review in this

case asking us to reconsider the initial decision issued by

the administrative judge. We grant petitions such as this

one only when significant new evidence is presented to

us that was not available for consideration earlier or when

the administrative judge made an error interpreting a law

or regulation. The regulation that establishes this standard

of review is found in Title 5 of the Code of Federal

Regulations, section 1201.115 (5 C.E.R. § 1201.115).

After fully considering the filings in this appeal, we

conclude that there is no new, previously unavailable,

evidence and that the administrative judge made no error

in law or regulation that affects the outcome. 5 C.ER. §

1201 11 5(d). Therefore, we DENY the petition for review,

A2-1

The initial decision of the administrative judge is final.

This is the Board's final decision in this matter. 5 C.ER.

§1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court

of Appeals for the Federal Circuit to review this final

decision. You must submit your request to the court at

the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no

later than 60 calendar days after your receipt of this order.

If you have a representative in this case, and your

representative receives this order before you do, then you

must file with the court no later than 60 calendar days

after receipt by your representative. 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 Pinal v. Office of

Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

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).

You may read this law as well as review other related

material at our web site, http:/ /www.mspb.gov.

FOR THE BOARD:

Clerk of the Board

Washington, D.C.

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———Sw

E VICE

I certify that this ORDER was sent today:

By certified mail to:

Louis J. De Maio

P. 0. Box 347

Bel Air, MD 21014

By regular mail to:

Robert E. Norman, Esq.

Department of the Treasury

General Legal Services

401 W. Peachtree Street, NW., Suite 2110

Stop 180-R

Atlanta, GA 30308

Kenneth L. Bates

U.S. Office of Personnel Management

Employee Relations Division

1900 “E” Street, N.W., Room 7412

Washington, DC 20415

Merit Systems Protection Board

Northeastern Regional Office

2nd & Chestnut Streets, Room 501

Philadelphia, PA 19106

By hand to:

Office of the Special Counsel

1730 M Street, N.W.

Suite 300

Washington, DC 20036-4505

September 5, 2000 s/Ameeran Ali

Legal Assistant

Washington, DC

A2-3

APP. 3

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NORTHEASTERN REGIONAL OFFICE

LOUIS J. DE MAIO, DOCKET NUMBER

Appellant, PH-1221-00-0188-W-1

V.

DEPARTMENT OF THE TREASURY,

Agency.

DATE: April 17, 2000

Louis J. De Maio, Esquire, Bel Air, Maryland, pro se.

Robert E. Norman, Esquire, Atlanta, Georgia,

for the agency.

BEFORE

Sandra J. Squire

Administrative Judge

INITIAL DECISION

On February 15, 2000, Louis J. De Maio, Esquire,

filed an appeal alleging that his employing agency, the

Department of the Treasury, engaged in prohibited

personnel practices. The appellant currently works as an

Attorney (Estate Tax), GS-12, with the Internal Revenue

Service, Baltimore, Maryland. For the reasons set forth

below, the appellant’s request for a hearing is denied and

the appeal is DISMISSED.

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LS ER EN TN CT Ae

[JURISDICTION

The Merit Systems Protection Board (Board) may

only adjudicate appeals from those actions which are

made appealable to the Board under law, rule, or

regulation. See 5 U.S.C. §7701(a); see also5C E.R. § 1201.3

(1999). The regulations of the Board, if specifically 5 C.ER.

§1201,56(a)(2) (1999). provide that appellants have the

burden of demonstrating, by a preponderance of the

evidence, that the Board has jurisdiction over an appeal.

A preponderance of the evidence is defined as that degree

of relevant evidence which a reasonable person,

considering the record as a whole, would accept as

sufficient to find that a contested fact is more likely to be

true than untrue. 5 C.ER. § 1201.56(c)(2) (1999).

The appellant was afforded an opportunity to

provide evidence of the Board’s jurisdiction via the

Board’s February 18, 2000 Acknowledgment Order, and

a Show Cause Order dated March 27, 1999. The appellant

made several responses to the jurisdictional issue which

I have considered. The agency responded to the appeal

on March 17, 2000, and included with its response a

motion to dismiss based on jurisdiction. Following review,

the agency’s motion is GRANTED.

In his appeal and subsequent submissions, the

appellant raised a number of concerns about the agency’s

grievance system, and the agency’s failure to take steps

to protect the government’s interest in regard to

impending statutes. The appellant also asserted that the

agency engaged in prohibited personnel practices by

changing his duties and responsibilities which are

inconsistent with his salary and grade level, and issuing

him a letter of reprimand, allegedly containing untrue

written statements concerning his character, loyalty,

A3-2

veracity, trustworthiness and ethical conduct. Assuming

that the appellant intended these to be allegations of

prohibited personnel practices, such arguments do not

confer jurisdiction on the Board. See Hunter v. Department

of the Army, 40 M.S.P.R. 449, 451 n. (1989) (an allegation of

a prohibited practice, alone, cannot invoke Board

jurisdiction). Further, there is no entitlement to appeal to

the Board from a letter of reprimand. Likewise, there is

no entitlement to appeal to the Board on agency grievance

issues, or the concerns the appellant raised about the

agency’s failure to take steps to protect the government’s

interest in regard to impending statutes. See 5 US,C§ 7501

et seq.; 5 C,ER. § 1201.3 (1999) (descriptions of Board

jurisdiction found in laws, rules and regulations).

As noted, it does not appear the appellant is appealing

an “otherwise appealable action” as defined at 5 C.RR.£

1209.2(b)(2), or (b) that he has first sought corrective action

from the Special Counsel. The appellant must show that

the matter appealed is an “otherwise appealable action,”

or that he has first sought corrective action from the

Special Counsel before the Board will accept his appeal.

The appellant’s submissions to date do not evidence such.

If the appellant takes his allegations of merit systems

principle violations to the Office of Special Counsel, a

letter of reprimand may be appealed as an individual right

of action (IRA) appeal under the provisions of the

Whistleblower Protection. Act (WPA), Pub.L. No. 101-12,

103 Stat. 16 (1989). However, the appellant has not taken

this matter to the OSC. Thus, the Board has no jurisdiction

to decide this appeal, and the matter must be dismissed.

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a es

DECISION

The appeal is DISMISSED.

FOR THE BOARD: s/Sandra J. Squire

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on

May 22, 2000, unless a petition for review is filed by that

date or the Board reopens the case on its own motion.

This is an important date because it is usually the last

day on which you can file a petition for review with the

Board. However, if this initial decision is received by you

more than 5 days after the date of issuance, you may file

a petition for review within 30 days after the date you

actually receive the initial decision. The date on which

the initial decision becomes final also controls when you

can file a petition for review with the Court of Appeals

for the Federal Circuit. The paragraphs that follow tell

you how and when to file with the Board or the federal

court. These instructions are important because if you

wish to file a petition, you must file it within the proper

time period.

BOARD REVIEW

You may request Board review of this initial decision

by filing a petition for review. Your petition, with

supporting evidence and argument, must be filedwith:

The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Room 806

Washington, DC 20419

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If you file a petition for review, the Board will obtain the

record in your case from the administrative judge and

you should not submit anything to the Board that is

already part of the record. Your petition must be

postmarked, faxed, or hand delivered no later than the

date this initial decision becomes final, or if this initial

decision is received by you more than 5 days after the

date of issuance, 30 days after the date you actually receive

the initial decision. If you fail to provide a statement with

your petition that you have either mailed, faxed, or hand

delivered a copy of your petition to the agency, your

petition will be rejected and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board’s final decision,

you may file a petition with:

The United States Court of Appeal

for the Federal Circuit

717 Madison Place, NW.

| Washington, DC 20439

You may not file your petition with the court before this

decision becomes final. To be timely, your petition must

be received by the court no later than 60 calendar days

after the date this initial decision becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review

of this initial decision in accordance with the Board’s

regulations.

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