Petition for Writ of Certiorari — Nater v. Riley

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| Supreme Goun, u.&

FILED

00-531 0CL3 om

pert

In The

Supreme Court of the Anited States

Rafael Nater,

Petitioner

Vv.

Richard Riley, Secretary of the Department of Education,

Respondent

On Petition For A Writ Of Certiorari

_To The United States Court Of Appeals For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Rafael Nater

Pro-se Petitioner

31 Zuania,

Parque de Villa Caparra,

Guaynabo, Puerto Rico 00966

(787) 781-4089

Petition For Writ Of Certiorari.

a) Questions Respectfully Presented For Review.

Petitioner appealed to the Merit Systems Protection Board (the

Board). This revolved about discrimination and whistleblowing

activities. The Board dismissed because lack of jurisdiction;

however, did not inform petitioner as required under 5 C. F. R.

1614.302(b). The Federal Circuit Court consolidated the petitioner’s

four appeals because all arise from the same operative facts. After

the respondent motion to dismiss, the Court transferred one case to

the District Court of Puerto Rico and decided the other three cases.

1) If, based on lack of compliance with 5 C. F. R. 1614.302(b),

the Circuit Court should have transferred all the cases; or,

alternatively, remand to the Board to review the EEO issues?

In reference to the judicial review of decisions by the Merit

System Protection Board (Board) as established under 5 U.S.C. §

7703:

2) Did the case presented the statutory elements to set aside the

Board decision; 5 U.S.C. 7703(c)?

b) Parties To The Proceeding. All parties to the proceeding are

included in the caption. No corporate disclosure statement is

require.

Petitioner is: Rafael Nater, pro-se

#31 Zuania, Parque de Villa Caparra

Guaynabo, Puerto Rico 00966.

Tel. (787) 781-4089.

Respondent is: Richard Riley, Secretary

United States Department of Education

' was represented by: David B. Stinson, AUSA

Department of Justice, Room 12040

“L” street N.W.

Washington, D.C. 20530

Tel. (202) 307-0290 / (202) 616-0391

Note: Following with rule #29.4 of this court, the documents

will be serve on the Solicitor General of the United States.

Nevertheless, a “Courtesy Notice” will be serve on the representative

at the lower courts: David B. Stinson and Fidel Sevillano Del Rio.

' The agency’s attorney, Anthonier White, Esq., represented the agency for

all practical purposes before the Board and before the Circuit and the District Court

for Puerto Rico - District case 99-1366 (JP). Address is: U.S. Education OGC

division, 600 Independence Ave., S.W., Room 4200, Washington D.C. 20202-2110.

Tel. (202) 401-6700. The official attorney before the District Court is Fidel

Sevillano Del Rio, AUSA. Address: Federal Office Building, Room 452, Carlos

Chardon street, #150, Hato Rey, Puerto Rico 00918. Tel. (787) 282-1844.

(ii)

* a a a

c) TABLE OF CONTENTS AND OF AUTHORITIES

a) Questions Presented For Review.

b) The Parties To The Proceeding (See Case Caption).

c) Table Of Contents.

d) Opinions And Orders Entered In The Case.

e) Jurisdiction Of The Supreme Court.

- Dates Of: (A) Original Judgement. -

(B) Denial Of Rehearing.

- Statutory Provisions Believed To Confer Jurisdiction.

f) Constitutional And Statutory Provisions Involved.

g) Statement Of The Case.

h) Reasons For granting The Petition.

i) Appendix, Index to:

(I) inions an ers by the Board And

Date inion/Order Docket No.

-B Merit Syste ction Board:

18/Dec/1997 Initial Decision NY-1221-96-0334-W-1.

12/May/1998 Order: No Stay NY-1221-98-0272-S-1.

03/Nov/1998 Order: PFR-Denied NY-1221-96-0334-W-1.

23/Nov/1998 Order: No Hearing NY-1221-98-0401-W-1.

31/Dec/1998 Initial Decision NY-1221-98-0401-W-1.

02/Mar/1999 Initial Decision NY-1221-98-0272-W-1.

18/Mar/1999 Initial Decision NY-0752-98-0297-I-1.

-By the United States Court Of Appeals - Federal Circuit:

09/May/1999 Judg’nt/Opinion 99-3083, -3143, -3213.

06/Jul/2000 Rehearing Denied 99-3083, -3143, -3213.

-By the United States District Court - Dist. Of Puerto Rico:

J 14/Sep/2000 = Judg’nt/Opinion 99-1366 (JP).

oO ™mM™MOOW >

(II). Other Relevant Material.

K. Selected section of “Opposition to Defendant’s Motion For

Dismissal And for Summary Judgement”; docket #63, case 99-

1366 (JP) - D.C.P.R.

Petition For Review [to MSPB] docket: NY-1221-96-0334-W-]

. “Petitioner’s Statement Concerning Discrimination” - Filed with

the Federal Circuit under case 99-3083.

(i)

——Section Page

Cases

Caster y DOA. G2 WES See CUNO hk ck dinicweaadees 1]

Martin v. DAF, 63 M.S.P.R. 574 (1997) ..............008- 11

Taylor v. McElroy, 360 U.S. 709 (1959) .....2............. 5

Statutes and Regulations

th eT Pe errr rere ot re ee 2

Government Organizations and Employees,

MSPB, Prohibited Personnel Practices,

5 Es An MD 6 daw Chas 1a ATA 11,12

BALM MND Nb Sie KA NRs oN GRR Kos Ages 1]

Appeals, Judicial Review ...5 U.S.C. 7703 .......... >

Supreme Court - Jurisdiction: Courts of appeals;

certiorari; certified questions, 28 U.S.C. 1254 ........ 2

Federal Rules of Civil Procedures,

Fg ome ONS Be ree Cee Tare Cee ee 10

Federal Rules of Appellate Procedure, Rule 25(b) ........ 8

U.S. District Court for Puerto Rico,

Fg RE : ee rey eee eee 5

Code of Federal Regulations

Administrative Personnel

Practice and Procedures, 5 C.F.R. 1201:

NNN Fs eae Kak he cid 05S d ee eens 9

Closing of the Record, 5 C.F.R. 1201.58(a) .......... 7,8

PFR: Filing Petitions, and Cross ... , 5 C.F.R. 1201.114(i) . 7

Pree: RL, DED SOAR EDS 5 04K 68S wV-G OS ches 7,8

Federal Sector EEO, Subpart C -Related Processes

Mixed Case Complaint, 5 C.F.R. 1614. 302(b) . . i, 2, 3, 4, 14

(iv)

d) Opinions And Orders Entered In The Case.

It is noted that the administrative orders and Court opinion are

not published, but will appear on tables on the official reports.

In chronological order, the Opinions Below:

(i) The decision by the Merit System Protection Board appears

at Appendix A to the petition; it is unpublished. This decision

was issued by the Board on December 18, 1997, docket: NY-

1221-97-0334-W-1; disposition: Corrective action was denied.

(ii) The order by the Merit System Protection Board appears at

Appendix B to the petition; it is unpublished. This order was

issued by the Board on May 12, 1998, docket: NY-1221-98-

0272-S-1; disposition: Stay Request is denied.

(iii) The order by the Merit System Protection Board appears at

Appendix C to the petition; it is unpublished. This order was

issued by the Board on November 3, 1998, docket: NY-1221-97-

0334-W-1; disposition: Petition For Review was denied.

(iv) The order by the Merit System Protection Board appears at

Appendix D to the petition; it is unpublished. This order was

issued by the Board on November 23, 1998, docket: NY-1221-

98-0401-W-1; disposition: Request for Hearing is denied; the

Board lacked jurisdiction.

(v) The decision by the Merit System Protection Board appears

at Appendix E to the petition; it is unpublished. This decision

was issued by the Board on December 31, 1998, docket: NY-

1221-98-0401-W-1; disposition: Dismissed; lack of jurisdiction.

(vi) The decision by the Merit System Protection Board appears

at Appendix F to the petition; it is unpublished. This decision

was issued by the Board on March 2, 1999, docket: NY-1221-98-

0272-W-1; disposition: Dismissed; lack of jurisdiction.

(vii) The opinion and judgement of the United States court of

appeals appears at Appendix H to the petition; it is unpublished.

This order was issued by the Federal Circuit appeal court on

May 9, 2000, docket: 99-3083, 3143, -3213; disposition: The

Board decision was Affirmed.

(viii) The latest order of the United States court of appeals

appears at Appendix I to the petition; it is unpublished. This

order was issued by the Federal Circuit appeal court on July 6,

2000, docket: 99-3083, 3143, -3213; disposition: Rehearing

Denied.

e) Jurisdiction Of The Supreme Court.

Please note that:

(A) Original Judgement by the United States Court of Appeals

was on May 9, 2000.

(B) A timely petition for rehearing was denied by the United

States Court of Appeals on July 6, 2000, and a copy of the order

denying rehearing appears at appendix I.

Petitioner believes this Honorable Court has jurisdiction as

authorized by our Constitution, U.S. Const. art. II], §2, and per the

statutory provisions under 28 U.S.C. § 1254(1).

f) Constitutional And Statutory Provisions Involved.

We believe there are two main statutory or regulatory provisions

involved:

5 U.S.C. 7703: Judicial review of decisions of the Merit

System Protection Board. Sub-section (c) set the elements

needed by the appeal court to set aside any agency action,

findings, or conclusions.

and;

5 C.F.R. 1614.302(b): Equal Employment Opportunity

Commission, Federal Sector, Subpart C - Related Processes: Mixed

Case Complaints. Sub-section (b) establishes the process to follow

by the employee and by the agency.

g) Statement Of The Case.

This is truly ONE case and it is a Mix Case. Nater, here the

Petitioner, alleged discrimination and reprisal because protected

disclosures. In substance, Petitioner, born, raised, and worked for

the Respondent office in Puerto Rico, alleges discriminatory

treatment against him and members of the office of P.R., and against

certain auditees; this because national origin and political

preferences. Also, Petitioner alleges he detected and reported

irregularities in the Respondent’s methods to perform audits,

investigations, and in the prosecution of possible offenders.

Additional allegations were included at District Court level mostly

based on the Federal Tort Act..

h) Reasons For ting The Petition.

The importance of this case, for National purposes, may strive of

is.

——— rh _ cl —————nenaerss ss

the misapprehension of facts itself. Please note that, whenever the

trial Court (either administrative Court as it is the Board, or the

District Court) has determined that a series of allegations are the

facts of the case, but, this in conflict with stronger and more probable

allegations of facts, then, the results are in conflict with the reality,

against justice, and against the purpose of our system.

The Proceedings In Relations To The Issues.

1) If, based on lack of compliance with 5 C. F. R. 1614.302(b),

the Circuit Court should have transferred all the cases; or,

alternatively, remand to the Board to review the EEO issues?

The course of the proceeding has been complicated because the

facts of the case, and the laws and regulations governing the

allegations. In summary, the following procedural facts are relevant.’

In compliance with 5 C.F.R. 1614.302, Nater filed a Mix

complaint with the agency EEO division, but action was not taken.

After the allowable time lapsed, he followed with the process and

filed a Mix Case Appeal before the Merit System Protection Board

(the Board). See appendix (adx) J, at 7 to 9. While this case was in

process, additional personnel actions were taken against Nater and

he initiated another action which ended in a second appeal of three

personnel actions. This second appeal was broken by the Board into

three individual appeals. Among other, Nater claimed discrimination

and reprisal for protected disclosure on each appeal. (adx J at 7 to 9).

- For the first appeal, and after a jurisdictional hearing (November

14, 1996), the relief requested was denied; it is noted that the Board

refused to review the allegations of discrimination or any other,

excepted for the allegation of reprisal due to protected disclosures.

Then, a PFR (Petition For Review) before the board was also denied.

See adx A and B. It is noticed that neither the Board nor the

agency-respondent ever notified Nater about bis right to file with

the agency EEO counselor or to request a final decision from the

agency as required under 5 C.F.R. 1614.302(b).

? For illustrative purposes, see the September 14, 2000, order by the

District Court of Puerto Rico (D.P.R.) at our appendix (adx) J at 7 to 9:

Uncontested Facts as determined by the Court. However, petitioner controverted

some of these alleged facts.

Then, Nater filed appeal with the EEOC and simultaneously PRF

with the Federal Circuit. The EEOC did not accept review based on

lack of jurisdiction, and Nater filed Civil Action in the Federal

District Court. (adx J).

For the other three personnel actions, which ended in three

individual appeals: The Board, and without any hearing, dismissed

two appeals for lack of jurisdiction; also, did not review the

allegations of discrimination. Then, on the last appeal, sustained a

hearing and reviewed the discrimination based on national origin,

and the reprisal due to disclosures. (adx G). It is noticed that, in

relation to the two appeals dismissed without a hearing (adx C to E),

neither the Board nor the agency-respondent ever notified Nater

about his right to file with the agency EEO counselor or to

request a final decision from the agency as required under 5

C.F.R. 1614.302(b).

Because all four appeals were based on the same operative facts,

Nater asked the Federal Circuit Court of Appeals to consolidate all

the four cases, and the Court granted the motion. This became case

no. 99-3083, -3143, -3213, -3236. (adx H). Nater had also included

the cases as part of the Civil Action before the D.C.-P.R. (District

Court for Puerto Rico), case 99-1366 (JP). (adx J). This latter case

was filed on April 6, 1998.

It is important to note that, at all times, Nater openly and with

candidacy informed both, the Federal Circuit, and to the District

Court the status of his action. More important, Nater clearly and

expressly informed to the Federal Circuit his intention of preserving

his allegations of discrimination. (adx L).

Under this scenery, respondent asked the Federal Circuit to

dismissed all cases because petitioner filed the same actions before

the D.C.-P.R., and Nater informed the Court of his desire to preserve

his allegations of discrimination. The appeal Court did not dismissed

the cases, but transfer ONE case to the District, this was the last

appeal, and reviewed the other three cases. Finally, the appeal Court

sustained the agency, this, on May 9, 2000, and later denied Petition

for Rehearing, July 6, 2000. (adx H, I).

The District Court sustained two Scheduling Conferences, and,

in response to defendant’s motion to dismiss, on September 14, 2000,

the Court dismissed all the allegations, excepted one. The District

transferred back to the Federal Circuit the case received from the

Federal Circuit, this, the allegation related to whistleblowing..

Nater filed “Notice of Appeal” with the First Circuit Court of

Appeals on September 19, 2000, in relation to the dismissed

allegations.

Note: We also are filing a motion with this Honorable Court to

praying for a “Continuance” of the proceedings or for “Dismissal

Without Prejudice To Re-file” until after the First Circuit and the

Federal Circuit completion of this case review. Please notice that

we are compelled to filed this action at this moment as required by

the law and rules (see rule 13 of this Honorable Court). After the

Circuits review is completed, if applicable, we will ask for

consolidation of the cases.

_ Further, as a last alternative, we ask this Honorable Court to

review the whole case as it may be applicable according to Taylor

v. McElroy, 360 U.S. 709 (1959). In Taylor, this Court decided that

the issues before the Circuit were very similar to the issue properly

before them, thus, review the case.

Wherefore, very respectfully, we poses that this case should have

been review as one case and should have been transferred in full to

the District Court for a “De Novo” review as stated in 5 U.S.C.

7703(c); “... except that in the case of discrimination brought under

any section referred to in (b)(2) of this section, the employee or

applicant shall have the right to have the facts subject to trial de

novo by the reviewing court.”

2) Did the case presented the statutory elements to set aside the

Board decision; 5 U.S.C. 7703(c)?

Specifically, the court shall review the record and hold unlawfui

and set aside any agency action, findings, or conclusions found to be:

“... (1) arbitrary, capricious, an abuse of discretion, or _

otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or

regulation having been followed; or

(3) unsupported by substantial evidence; ...

The substance in this second Question relates to one fact: On

February 23, 1998, Petitioner did submit to the Board with his

Petition For Review (PFR) all related documents, arguments and

motion identified as New And Material Evidence. Petitioner alleged

that such new evidence may have resulted in the revocation of the

Board initial decision, or at least, in remand to the Board for

additional review. The Board, however, understood those documents

were submitted on April 7, 1998, as part of petitioner’s reply to the

agency. The Federal Circuit Affirmed. Then, the argument revolves

around the effects of this misapprehension by the Board and by the

Circuit.

The Honorable United States Court of Appeals for the First

Circuit appears to have misapprehend certain substantive facts and

to have misapplied the law in this case. Therefore, some very

important elements of the cause of action were not considered, and

the process itself appears to have been misapplied against the

Petitioner. :

In relation to case no. 99-3083, -3143, -3213, the Federal Circuit

opinion should be revoked based on these considerations.

Very respectfully, Nater poses that the Federal Circuit appears

to have overlooked the fact that his PFR (Petition for Review) with

the Board was filed within the allowable time. Please note that this

PFR included the “New and Material Evidence” which was at issue,

also, Petitioner made reference to the appendix at A-465, A-456.

(This, in reference to the appendix submitted to the Fed. Cir.)

The Federal Circuit determined that:

“\.. Additionally, although Nater badly claims that his untimely

filing contained new and material evidence, he fails to

demonstrate why he was unable to submit this evidence despite

due diligence before the record closed twenty-five days after

Nater served the petition for review. Thus, the AJ's decision was

supported by substantial evidence.” See adx H at 7, 1* 4.

The Board issued the I.D. (Initial Decision) on December 18,

1997 (ADD-1)’, and they granted permission for, and Nater did file

the PFR on the February 23, 1998 (adx L). This PFR included an

explanatory motion together with the new and material evidence ob-

tained after the hearing record closed (A-456). Please note that per

5 C.F.R. 1201.58(a) the HEARING record closed the last day of the

hearing; in this case, November 14, 1996.

On November 3, 1998, the Board issued the Final Decision

denying Nater’s PFR because: “... it does not meet the criteria for

review as set forth in 5 C.F.R. 1201.115.” Additionally the Board

stated that: “... After the close of the record on petition for review,

5 C.F.R. 1201.114(i), the appellant submitted a reply to the agency's

response to his petition for review; the Board has not considered this

reply because the appellant has not shown good cause for his

delayed filing.” See adx C. Please note that neither the agency nor

the Board ever addressed the arguments posed by Nater in the

February 23, 1998 motion nor addressed or rebutted the materiality

of the new evidence he presented.

Nater filed timely PFR before the Circuit Court alleging, in

summary, the Board erred: (a) by not taking into consideration

Nater’s reply to the agency’s response, and (b) by making a

determination that Nater’s PFR did not meet the indicated criteria for

review resulting in their denial of the PFR.

However, it is apparent the Court overlooked and did not address

the second issue (issue (b) above), and it is apparent both issues were

mixed up. At pages 5 (last §), p. 6 (last §), and p. 7, the Court

addressed Nater’s first allegation (the Board did not consider his

reply) and sustained the agency determination, adx H at 5 to 7;

unfortunately, the Court did not indicate if his PFR met or not the

criteria per 5 C.F.R. 1201.115.

The Court misapprehended Nater contention (“... Nater contends

that ... (3) Nater’s reply brief contained new and material

? Please note that our references the appendix in this document are

indicated as adx. Reference to the appendix before the Fed. Cir., and to the PFR

before the Board are included as illustrative only - the documents are not here

included. 2

in “parenthesis” are for documents included in the Court or agency below; references

to the appendix in this Petition for Writ of Certiorari are not.

evidence. "’, adx H at 6, 1" 4), and misapprehended as a fact that the

New and Material Evidence was submitted as part of the reply (April

7, 1998) rejected by the Board ( id. at 7, 1°). Apparently the Court

understood that Nater was intending to submit the New and Material

evidence as part of the April 7, 1998 reply, but the fact is that the

new evidence was submitted on February 23, 1998. With very much

respect, we poses the determination is not correct.

This is, Nater did not content that his reply included the new

material. This material was timely submitted and explained on

February 23, 1998, as part of the PFR ((A-465(a) at item #3, A-456)).

See adx L. ;

But these facts do not put an end to this issue; the Board denied

ie PFR after determining that it did not meet 5 C.F.R. 1201.115.

But the facts are in conflict with that determination. Nater’s BRD-

PFR included objections and referencing to supporting material on

record and to laws (A-472 to A-475). Also, petitioner included the

allegation that the new evidence was not available before the close

of the record for the hearing’, since most of the documents were

created after November 14, 1996.

Also, in support for our pray, please note the following: The

Circuit Court sustained the Board decision by indicating that

substantial evidence support the Board’s conclusion’. However, the

new evidence (A-456 to A-464, and as part of the Brd-PFR at tab-3)

appears to be of substantial weigh to make a reasonable person

believe that it is more probable than not that all those “Superior”

ratings for Nater were obtained against the will of Rios, the main

subject of Nater disclosures, and after the assistant to the supervisor

ignored Rios requests. Also, the new evidence provides a strong

indication that Rios was able to strongly influence the assistant

supervisor and the rating official only after Nater filed the report of

* November 14, 1996 (A-456 to A-464); see 5 C.F.R. 1201.58(a)),

* “.. We hold that substantial evidence supports the Board's conclusion

that Nater's 1990 disclosure was not a contributing factor in the agency's alleged

lowering of his 1994 performance appraisal. Even assuming, as Nater alleges, that

he continuously reported auditing irregularities between 1990 and 1994, his higher

performance ratings between 1990 and 1993 belie his contention that the agency

acted in reprisal for these alleged disclosures or for his 1990 disclosure involving

the credit card misuse.” Adx H at 6, 2™ 4.

irregularities with the agency and later with the Special Counsel

(OSC).

As to the “contributing factors”, the Circuit concluded that

Nater’s high performance evaluations from 1990 to 1993 belie his

contention that his 1994 rating was in reprisal for his continuous

disclosure during the same period. (Adx H at 6, 2°74) But the new

evidence brings additional light in this area. This is, Rios wrote a

memo (“new evidence”, A-045) disclosing his ill feelings against

Nater immediately after Nater transfer-in during 1990. Also, this

shows Rios continuous opposition to Whiting and other supervisors’

evaluating Nater performance as outstanding (see A-046, 2™ 4).

Further, this document is indicative of Rios knowledge of Nater

disclosures which at the same time is indicative that his 1994 rating

and succeeding personnel actions were in reprisal for Nater’s

allegations of violations to the rules and regulations applicable to the

agency.

Therefore, the new evidence (all were timely filed) brings facts

which are in direct conflict with the facts previously relied on for the

determinations in the Board’s I.D. (adx A). I pose that the new facts

should result in the revocation of the I.D., or at least to order that a

new hearing be sustained in the specific areas of conflict, and that a

new period for discovery be opened for these purposes.

Additionally, the Federal Circuit Appeal Court holds that the

Board did not abuse its discretion in declining to consider Nater’s

untimely filing (in reference to his reply to the ageticy response) (adx

H at 6, 4" 9); and further, also stated that there is no right for such a

reply (/d. -7,1° 9). Very respectfully the Court may have overlooked

one important fact; i.e., it was the response by the agency which

was late, Nater filed timely.

The regulations do not specifically provide the opportunity nor

the right to reply to the agency response (adx H at 7, 1" 4).

However, please note the following facts.

The Federal Rules of Appellate Procedures and the local rules

for the District Court of Pueric Rico can be enlightening, this

regardless the Board* have not adopted the specific rules.

* The Board rules at 5 C-F.R. 1201.55 established the requirements for

submission of motions and the time to file an objection to motions. The time is 10

-9-

As to filing and service, Fed. R. App. P. 25(b) requires: “...

Unless the rule requires service by the clerk, a party must, at or

before the time of filing a paper, serve a copy on the other parties to

the appeal or review.” The local rule 311.3 for the U.S. Dist. of

Puerto Rico similarly requires service to all parties “... on or before

the date that they are filed with the Clerk, ...”. (RH-ADD-| 0).

In the case at bar, the agency dated and certified as served their

response on March 20, 1998; i.e., the last date for filing. However,

Nater controverted (i) the accuracy of the mailing date and (ii)

claimed it was not mailed to “... the last known address ...” (PFR-9)°.

Based on the agency responses, they have never controverted or.

rebutted Nater’s allegations, thus, we should presume the facts are as

Nater alleges. Therefore, the effective filing date by the agency was

April 2, 1998, which means it was a late filing.

Also, in this regards, we also may look at the “Board’s Certify

Index”; (ADD-17, item #6), the agency response was recorded on

March 25, 1998, but the last date for filing was March 20, 1998.

This fact is also indicative that the response was filed late even with

the clerks’ office.

Then, should we ask about the relevancy of these issues and

facts? It is a fact the Constitution requires, among others, a “Due

Process”. The administrative process is permeated with that same

idea. In our case, the issue is, why it is required that documents be

days after service of the motion. The Board’s policy is that the rules will apply in

a manner that expedites the processing of each case, with due regard to the rights of

all parties. We pose that the Federal Rules of Civil Procedures should serve as

guidance and be applied whenever the conditions so indicate.

Service requirements per rule 5 of the Federal Rules of Civil Procedures

(see 28 U.S.C. Rules, R. 5) is similar to the indicated rule from the Board. In es-

sence, both type of rules requires that al! documents must be serve upon all parties

and to the last known address and must include a Certificate of Service informing the

name, address, and date served.

* With his reply, Nater notified the Board he received the answer on April

2, 1998, that the envelope was not having any Post-Office stamp, symbols, or marks,

and it was addressed to his previous address (Nater adopted and informed a new

address since October 1996). This is, since there were not any post-marks, then, for

making a determination as to the date the response by the agency was filed, the only

date we are having is April 2, 1998. Then, since March 20, 1998 was the last date

to file response, but was effectively file on April 2, 1998, their response should have

been rejected. ss

10;

served on the other party and that the certificate of service informs

the date served if it is not for granting a true and reasonable

opportunity to reply or rebut the assertion in the document served?

There is no other answer; the purpose is to allow the opposing party

the true and fair chance to rebut adversary statements.

Then, the substance of these arguments is to sustain that under

the conditions indicated, Nater was not afforded a true and fair

opportunity to rebut the allegations by the agency in their response.

Even more, the agency response was filed late and as such should

have been rejected, but it was accepted and reviewed. But Nater’s

reply after 5 days of receiving of the agency response, was rejected.

Based on these facts, we pray this Court reconsideration of the

decision as prayed for in the PFR.

In Relation To The Allegations Of Whistleblowing.

The Federal Circuit Appeal Court decided to decline Nater

invitation to partially overrule Carter v. DOA, 62 M.S.P.R. 393

(1994) (adx H at 6, 3 4, last sentence). Also, as to cases 99-3143,

and 99-3213, the Court upheld the Board’s conclusion that the

alleged Whistleblowing activities were no more than “professional

disagreements” (adx H at 6, 3° § and id. at 7). However, it is

apparent that we have deviated our attention from the main issue.

We posed that for all three cases the issue is to determine what

happens when the employee makes a number of related disclosures

based upon the same operative facts, some of which are argued to

come under 5 U.S.C. 2302(b)(8), and others under Section

2302(b)(9).

We poses that the applicable standard to this case was set in

Martin v. DAF, 63 M.S.P.R. 574 (1997)’. On review, the Board

concluded that, even though it is correct that under 5 U.S.C.

2302(b)(9), the reprisal due to the filing of a grievance and the

appeal to the Board is an action prohibited, that action is out of the

” Martin claimed his performance rating was lowered as result of protected

disclosures. He reported to his superiors allege violations to the agency own

regulations and later followed with reports to OSC, an appeal to the MSPB, and a

grievance. Also, previously he had prevailed in an appeal before the Board. The

A.J. rejected the IRA appeal based on lack of jurisdiction because the disclosures

were not made through such channels as would advance his whistleblowing claim.

-ll;

Board jurisdiction under and IRA appeal; Martin, at 578. However,

since the appellant had originally reported to superiors violations of

the agency regulations by other employees, the Board had

jurisdiction:

“... When an employee makes a number of related disclosures

based upon the same operative facts, some of which are argued

to come under 5 U.S.C. § 2302 (b)(8) and others under section

2302 (b)(9), those that come under section 2302(b)(8) provide «.

basis of Board IRA jurisdiction to review allegations of reprisal

for whistleblowing.”; Martin, at 578.

Based on this standard, the I.D. was reversed. Because Carter,

appears to rule that any element of the whistleblowing included in a

grievance can’t be use as a base for an IRA appeal, we suggested that

Carter should be reversed in part (or clarified).

Before this Court, Nater posed that his issue is similar to

‘Martin’ issue”, however, the Board conclusion did not follow

Martin (ADD-4 and ADD-5). In Nater the Board concluded that his

. grievances revolved around differences of opinion as to the

application of regulations to working papers, and hence, these were

not protected disclosures. Nater reported to his closest superiors

irregularities and violations to the agency professional auditing

- standards and agency regulations. See PFR-13, footnote 26. Those

superiors were in charge to take measures to change the irregularities

noted. Due to the lack of action by management, Nater moved to file

grievance, EEO complaint, OSC report, and finally appealed to the

Board. (See A-13 to -16, footnotes 26 to 33). In his appeal, Nater

claimed the reprisal (lower ratings, non-selection for promotion,

suspension for five days, etc.), was the result of his reports of the

irregularities to management, because the filing of the EEO

complaint, the OSC report, and the appeal per se. Then, the

conditions in Nater were mostly the same than in Martin, but the

Board did not apply the Martin standard.

Also, it is apparent that the subject matter under Nater grievances

could have fallen within the Martin rule if the issue about the

application of regulations to the working papers would have been

considered an irregularity and not a mere difference of opinion

among accounting professionals. Then, it is at this point thatthe new

-12:

and material evidence is important. One of the objectives of that new

evidence was to support the allegation indicative that the disclosures

corresponded to an irregular behavior with vices of illegalities.

Further, it is clear, as it was explained in the PFR to the Board, that

this new evidence was created and obtained after November 14, 1996

(i.e., after the close of the hearing record). (ADD-456).

As to the “Contributing Factor”, in 99-3083, the Court concluded

that Nater failed to show that the supervisor had any desire to

retaliate against him. adx H at 6, 3° 4. However, it should be

considered that the new evidence provided information supporting

the allegation that the assistant to the supervisor had the animus and

ill intention to retaliate because Nater disclosures (emphasis on A-

462, item #6, A-45). This fact is in conflict with the Board’s finding

that there was no evidence sustaining animosity against Nater by

Rios. (adx A). The importance of the new evidence relates to Rios

memo disclosing his true feelings and continuous requests for

supervisory actions against Nater. But, this information was notified

to Nater during November 1997 as part of the process for remove

him from the Federal Government; therefore, it was new and material

evidence to be reviewed.

Therefore, the new evidence should support the existence of the

required elements under the whistleblowing defense, the information

was not available to Nater before the close of the record, and it was

timely presented to the Board as part of the PFR. Then, very

respectfully, Nater prays for reconsideration of the Court opinion and

that the Board decisions be revoked and the case remanded for

proper adjudication of the issues raised.

i) Conclusion.

In substance, this is one case of “mix” allegations of

discrimination and reprisal as a result of whistleblowing. Petitioner

exhausted all available administrative remedies, and finally filed for

judicial review. Unfortunately, during the administrative appeal, the

agency-respondent, nor the Board complied with the requirements

notifying petitioner that his case was being dismissed for lack of

jurisdiction; see 5 C.F.R. 1614.302(b). With this error, plaintiff was

not put on proper notice of his next available procedural

opportunities, thus, this was the root of the following defective

process. Because the errors were not caused by the petitioner, the

14.

courts below should allow petitioner to exercise the options provided

per 5 C.F.R. 1614.302 (b).

Therefore, the writ of certiorari should be granted and the decision

of the Federal Circuit Court be revoked with instruction to remand

the case to the Board with instructions in accordance to this opinion. ~

Respectfully submitted,

Rafaél Nater, pro-se petitioner. Date: Lect, ‘les v4 QLA

-14;

No.

In The |

Supreme Court of the United States

Rafael Nater,

Petitioner

Richard Riley, Secretary of the Department of Education,

Respondent

PROOF OF SERVICE

I, Rafael Nater, pro-se petitioner, declare that on this date,

October 3, 2000, as required by Supreme Court Rule 29, I have

served the enclosed PETITION FOR WRIT OF CERTIORARI on

each party to the above proceeding or their legal representative, as

applicable, by depositing an envelope containing three copies of

the above stated document in the United States mail (U.S. Postal

Service) properly addressed and with first-class postage prepaid.

This document was served this date on: The Solicitor General of

the United States, Room 5614, Department of Justice, 950

Pennsylvania Ave., N.W., Washington, D.C. 20530-0001.

Also, I have notified the legal representative in the lower

courts. (See page (ii) at n. 1 of the Petition).

I declare under the penalties of perjury that the foregoing is true

and correct to the best of my knowledge and beli

Pro-se Petitioner

i) Appendix: 5

I__Judgements, Orders, Opinions, Administrative Decisions and

Orders involved or closely related.

Date ini rder Docket No.

-By the Merit System Protection Board:

A. 18/Dec/1997 Initial Decision NY-1221-96-0334-W-1.

B. 12/May/1998 Order: No Stay NY-1221-98-0272-S-1.

C. 03/Nov/1998 Order: PFR-Denied NY-1221-96-0334-W-1.

D. 23/Nov/1998 Order: No Hearing NY-1221-98-0401-W-1.

E. 31/Dec/1998 Initial Decision NY-1221-98-0401-W-1.

F. 02/Mar/1999 Initial Decision NY-1221-98-0272-W-1.

G. 18/Mar/1999 Initial Decision NY-0752-98-0297-I-1.

-By the United States Court Of Appeals - Federal Circuit:

H. 09/May/1999 Judg’nt/Opinion 99-3083, -3143, -3213.

I. 06/Jul/2000 Rehearing Denied 99-3083, -3143, -3213. a

-By the United States District Court - Dist. Of Puerto Rico:

J. 14/Sep/2000 Judg’nt/Opinion 99-1366 (JP).

I]. Other Relevant Material.

K. Selected section of “Opposition to Defendant’s Motion For

Dismissal And for Summary Judgement”; docket #63, case 99-

1366 (JP) - D.C.P.R.

Petition For Review [to MSPB] docket: NY-1221-96-0334-W-1

. “Petitioner’s Statement Concerning Discrimination” - Filed with

the Federal Circuit under case 99-3083.

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE

RAFAEL NATER (pro-se) ) DOCKET NUMBER

Appellant

) NY-1221-96-0334-W-1

)

RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: December 18, 1997

EDUCATION,

Agency )

Anibal anellas Rivera, Esquire, San Juan, Puerto Rico, for the

appellant.

Tracy Sasser, Esquire, Washington, D.C., for the agency.

BEFORE

William J. Lee

Administrative Judge

INITIAL DECISION

INTRODUCTION

On April 20, 1996, the appellant filed an Individual Right of

Action (IRA) appeal with the Merit Systems Protection Board

(Board) after the Office of Special Counsel (OSC) had closed its

inquiry into his allegation that he was a victim of reprisal for

whistleblowing activities. A jurisdictional hearing was held on

November 14, 1996. For the reasons set forth below, the appellant's

request for corrective action is DENIED.

adx A, p. 1

ANALYSIS AND FINDINGS

Background

The appellant a GS-12 Auditor, first sought corrective action

from OSC based on allegations that his performance evaluation was

lowered in retaliation fc)r his whistleblowing. In addition, the

appellant alleged that he was not selected for a position because of

reprisal for whistleblowing. See Initial Appeal File (IAF), Tab 6,

Subtabs 3-2, 3-3. OSC terminated its inquiry into the appellant's

allegations on February 21, 1996. See id. The appellant then filed

this timely IRA appeal.

In his IRA appeal,' the appellant's claimed that he was issued

a fully successful performance evaluation during 1994, in lieu of a

superior rating, and not selected for a position in 1995 due to

whistleblowing, i.e. (1) a 1990 disclosure of an alleged misuse ofa

Diners Club card and (2) statements about the alleged official

practices contained in a grievance filed in 1994 prior to the

evaluation. See IAF, Tab 6, Subtabs 3-1, 3-.2 and 3-3.

General legal standards

It should be noted that in an IRA appeal, the Board's

Jurisdiction is limited to adjudicating the whistleblower allegations,

not the underlying personnel action or any other issues raised. See

Lewis v. Department of the Army, 63 M.S.P.R. 119, 125-26 (1994),

aff'd, 48 F.3d 1238 (Fed. Cir. ), cert. denied, 116 S.Ct. 110 (1995)

(citing Marren v. Department of Justice, 51 M.S.P.R. 632, 639

(1991), aff'd, 980 F.2d 745 (Fed. Cir. 1992) (Table). The appellant

has the burden of proving jurisdiction by the Board before the merits

of the whistleblower retaliation claim can be addressed. See 5 C.F.R.

§ 1201.56(aX2\i) (1997). To establish the Board's jurisdiction over

an IRA

' The appellant alleges, inter alia, in his moving papers that he was "looking for

r a review of the case I presented as of October 14, 1994 to the Department of

Education, EEO Division, where I claimed discrimination." See IAF, Tab 1. The

courts have held that the filing of EEO complaints does not constitute

whistleblowing activity protected under 5 U.S.C. § 2302(b\8). See Spruill v. Merit

Systems Protection Board, 978 F.2d 679, 691-2 (Fed. Cir. 1992).

adx A, p.2

appeal, the appellant must show by a preponderance of the evidence

that:’ 1) He engaged in whistleblower activity by making a disclosure

protected under 5 U.S.C. § 2302(b\8), i.e., he disclosed information

that he reasonably believed evidenced a violation of law, rule, or

regulation, gross mismanagement, gross waste of funds, abuse of

authority, or substantial and specific danger to public health and

safety; (2) the agency took or failed to take, or threatened to take or

failed to take a personnel action as defined in 5 U.S.C. § 2302(a);

and (3) he raised the whistleblower issue before the OSC, and

proceedings before OSC have been exhausted. See White v.

Department of the Air Force, 63 M.S.P.R. 90, 94 (1994); Geyer v.

Department of Justice, 63 M.S.P.R.. 13, 16-17 (1994), review

dismissed, 99 F.3d 1159 (Fed. Cir. 1996).

Pe acti '

An employee or former employee may seek corrective action

from the Board regarding any "personnel action" which is proposed

or taken against him as a result of whistleblowing, as described in 5

U.S.C. §2302(b)(8). Both a performance appraisal rating, and non-

selection for a position is a "personnel action" under 5 U.S.C. §

2302(aX2MA iii). See Eidman v. Merit Systems Protection Board.

976 F.2d 1400, 1407 (Fed. Cir. 1992). Further, there is no dispute

that he raised the issue of his performance appraisal and non-

selection before OSC, and proceedings before OSC were exhausted.

See IAF, Tab 6, Subtabs 3-2 and 3-3. Accordingly, I find that the

appellant has met two of the requirements for the Board's jurisdiction

over an IRA appeal.

The appellant’s disclosure

In the present case, the appellant's allegation of

whistleblowing was in his verbal disclosure to Thomas Whiting, his

second-level supervisor, about the misuse of a credit card by his

immediate supervisor, Profirio Rios, a violation of agency

regulations, and the filing of grievances from June 12 to July 11,

1994, concerning, violations of agency

. 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. See 5

C.F.F § 1201.56(c)(2) (1997).

regulations. To show that his disclosure is protected by 5 U.S.C. §

2302(b)(8), the appellant must show that he disciosed information he

reasonably believed evidenced a gross mismanagement or an abuse

of authority or a violation of a law, rule, or regulation. See Eidman,

976 F.2d at 1407. The test to determine if a person has made_a

disclosure protected by 5 U.S.C. § 2302(b)(8) is whether a

reasonable person in the appellant's position would believe that the

matter reported constituted one of the situations specified at 5 U.S.C.

§ 2308(b)(8), violation by an agency of its regulations. See Russell

v. Department of Justice, 68 M.S.P.R. 337, 342 (1995) (an appellant

must set forth proof, either in the form of testimony or documentary

evidence, or both, as well as establish that the matter reported was

one that a reasonable person in his position would have believed

violated 5 U.S.C. § 2302(b)(8)).

The test for whether the appellant had a reasonable belief

that his disclosure evidenced a violation of agency regulation is an

objective one. It does not required, proof of an actual regulatory

violation, but only a showing that a "reasonable person in his

position would believe" the disclosure evidenced a regulatory

violation. See Rusell, 68 M.S.P.R. at 342; Garst v. Department of the

Army, 60 M.S.P.R. 514, 518 (1994). Based on the evidence of record,

| find that the when the appellant informed Mr. Whiting about Mr.

Rios misuse of government credit card, this was a disclosure within

the meaning of 5 U.S.C. § 2302 (b)(8).

I do not find, however, that the appellant's 1994 grievances

of June 12, 1994 through July 11, 1994, are protected disclosures.

The Board has held that any matter disclosed within such grievances

are not protected whistleblowing activities. See Carter v. Department

of the Army, 62 M.S.P.R. 393, 402 (1994); Fisher v. Department of

Defense, 47 M.S.P.R. 585, 587-88 (1991). The exercise of a

grievance right does not, however, in and of itself, disqualify an

employee from pursuing corrective action under the WPA as well.

When an employee makes a number of related disclosures based

upon the same operative facts, some of which are argued to come

under 5 U.S.C..2302(b)(8), and others under Section 2302(b){9),

those that come under section 2302(b)(8) provide a basis of Board

IRA jurisdiction to review allegations of reprisal for whistleblowing.

See Martin v. Department of the Air Force, 73 M.S.P.R. 574, 578

adx A, p. 4

(1997). The evidence of record indicated that the subject matter of

these grievances revolved around a difference of opinion among

accounting professionals as to application of regulations to working

papers, The Board has held that disagreements over policies are not

protected disclosures especially when, as is the case, the

disagreements are unspecified as to allegation of regulatory or legal

violations made during discussions within the organization. See

Heining v. General Services Administration, 61 M.S.P.R. 539, 554,

55 (1994), reaffd on reconsideration, 68 M.S.P.R. 513 (1995).

Accordingly, inasmuch at the evidence does not indicate that the

appellant's 1995 performance rating or non-selection was in reprisal

for his having made allegations in his grievances concerning the

agency's violation of its regulation, those facts do not serve as a basis

for a section 2302(b)(8) disclosure.

However, in analyzing a whistleblower reprisal claim, an

administrative, judge may assume that an appellant is a

whistleblower and has established that a protected disclosure was

made, and go on to. consider whether the disclosure was a

contributing factor in a covered personnel action. See Mausser v.

Department of the Army, 63 M.S.P.R. 41, 44 (1994). Accordingly,

in light of the Board's reasoning in Mausser, I will make this

assumption and find that the appellant's grievances are protected -

disclosures. Therefore, 1 will consider whether the appellant has

shown that his status as a whistleblower was a contributing factor in

the cited personnel actions.

Contributing factor

The appellant must demonstrate by a preponderance of the

evidence that his protected disclosures were a contributing factor to

the agency's decision to lower his performance evaluation. See

White, 63 M.S.P.R. at 94. The words "a contributing factor" mean

"any factor which, alone or in connection with other factors, tends to

affect in any way the outcome of the decision." See 5 C.F.R. §

1209.4(c)(1997). One of the many possible ways to show that

whistleblowing was a contributing factor in a personnel action is to

show that “the agency official taking the action had actual or

constructive knowledge of the disclosure and acted within such a

period of time that a reasonable person could conclude that the

disclosure was a factor in the personnel action. See 5 U.S.C. §

1221(e)(1)(A), (B); Scott v. Department of Justice, 69 M.S.P.R.

adx A, p. 5

211, 238 (1995). Thus, circumstantial evidence of knowledge of the

protected disclosure and a reasonable relationship between the time

of the protected disclosure and the time of the personnel action will

establish, prima facie, that the disclosure was a contributing factor

to the personnel action. See Horton v. Department of the Navy, 66

F.3d 279, 284 (1995), cert. denied, 116 S. Ct. 1271 (1996). To

counter the appellant's prima facie evidence that the protected

disclosure was a contributing factor in a personnel action, the agency

may introduce any relevant and competent evidence, including the

reasons it acted.

The appellant may establish constructive knowledge of a

protected disclosure, for purposes of showing that whistleblowing

was a contributing factor in a personnel action, by demonstrating that

an individual with actual knowledge influenced the official taking the

action or by demonstrating that a person with constructive

knowledge influenced the official taking the action, and the

personnel action occurred within a period of time such that a

reasonable person could conclude that the disclosure was a

contributing, factor in the personnel action. Powers v. Department

of the Navy, 69 M.S.P.R. 150, 156 (1995). As with any other piece

of circumstantial evidence, this is simply one more factor for the trier

of fact to consider. See id. Such other factors may include the

strength or weakness of the agency's reasons for taking the action,

whether the whistleblowing was personally directed at the proposing

or deciding officials, and whether these individuals had a desire or

motive to retaliate against the appellant. See Caddell v. Department

of Justice, 66 M.S.P.R. 347, 351 (1995), aff'd, 96 F.3d 1367 (Fed.

Cir, 1996). Any weight given to a whistleblowing disclosure, either

alone or in combination with other factors, can satisfy the

contributing factor standard. See Mausser, 63 M.S.P.R. at 44.

1990 Disclosure :

The appellant testified that his supervisor, Mr. Rios, did not

adversely affect his 1990-1993 performance appraisal ratings, all of

which were "superior" with outstanding elements. The appellant

testified that he believed that these ratings came from three or four

senior supervisors with some input from Mr. Rios. The appellant

testified that Mr. Rios directly affected his 1994 performance

appraisal rating in retaliation for his disclosure about Mr. Rios’

misuse of a government credit card. The appellant testified

adx A, p. 6

that he informed Mr. Whiting verbally, on an unspecified date, about

Mr. Rios' misuse. See Hearing Tape 1, Sides 1, 2.

As Mr. Rios was not called by either side, no evidence was

adduced that Mr. Rios had any knowledge of the protected disclosure

made to Mr. Whiting in 1990 of at any time subsequent. In passing,

I note that the only evidence of Mr. Rios’ opinion of appellant are the

highly laudatory comments of April 19, 1994 in appellant's mid-year

appraisal. See LAF, Tab 6, Subtab 2-2. Moreover, the agency offered

credible evidence that the appellant's lower rating was due to his

performance. Mr. Eugene Tournour, the appellant's third-level

super-visor and the author of his performance appraisal ratings,

testified without contradiction that Mr. Rios had no input into the

final result whatsoever. Mr. Whiting testimony echoed Mr.

Toumour's.

It is possible, however, that even if the appellant's supervisor

did not have actual knowledge of the disclosure, to find that imputed

knowledge impermissibly influenced his decision. Cf Marchese v.

Department of the Navy, 65 M.S.P.R. 104, 108-09 (1994) (an

appellant may establish constructive knowledge by demonstrating

that an individual with actual knowledge of the disclosure influenced

the official taking a retaliatory action). The appellant did not offer

any evidence as to how his supervisor would have been aware that he

made a protected disclosure to Mr. Whiting in 1990.

In light of these admissions, and in view of the remoteness

in time, almost 4 years had elapsed between the protected disclosure

and the performance appraisal rating, I find the 1990 disclosure was

not a contributing factor to the appellant’s 1994 performance

appraisal rating. See Powers v. Department of the Navy, 69 M.S.P.R.

150, 155 (1995); Rychen v. Department of the Army, 51 M.S.P.R.

179, 183 (1991).

The 1994 Disclosure.

The appellant testified that he also believed that his

performance appraisal was lowered as a result of his June 1994

grievance memorandum. See Hearing Tape, No. |, Sides 1 and 2.

The appellant's testimony indicated that the subject matter of his

grievances revolved around a difference of opinion among

accounting professionals as to application of regulations to working

papers. The appellant's prolix testimony referred to a clash with his

immediate supervisor, Mr. Rios, concerning "accounting

adx A, p.7

principles," alleged violation of unspecified "rules and regulation,"

and other irregularities and general disagreement with procedures.

The appellant also indicated that most of the content of his testimony

was not before the OSC. See Hearing tape 1, Side 2.

The appellant's second- and third-level supervisors, Mr.

Whiting and Mr. Tournour, provided unrebutted testimony that the

appellant had never informed them of any wrongdoing or violations

of regulatory or statutory laws, although both were aware of

appellant's grievances. Mr. Whiting testified that the appellant had

complaint to him about procedural accounting rules since he arrived

in Puerto Rico in 1989. Mr. Whiting described the appellant's

attitude toward his immediate supervisor, Mr. Rios, and the rules of

accounting as: "Rafael's way or no way." As noted above, both Mr.

Whiting and Mr. Toumour testified that Mr. Rios had little or no

input into the appellant's performance appraisals and that the

appellant's present performance warranted the performance appraisal

he received.

In his grievances, the appellant failed to specify any specific

statute, rule or regulation violated by his immediate supervisor. See

IAF; Tab 6, Subtabs 3-1, , 3-2, and 3-3. There is no evidence that

either the appellant's second- or third- level supervisor or Mr. Rios

had a desire or opportunity to retaliate against the appellant because

of his protected disclosure. Accordingly, I find the appellant's claim

to be without merit.

Appellant's allegation of non-selection

As to appellant's non-selection, no evidence was adduced at

the hearing by either side. Accordingly, I find that the appellant

abandoned this issue at the hearing. Assuming, that the appellant did

not abandon this issue by the failure to offer any evidence at the

hearing, there is no evidence of record establishing that his protected

disclosures were a contributing factor in the agency's decision not to

select him for the position of Auditor, GS-13.

DECISION

The appeal is request for corrective action is DENIED.

adx A, p.8

FOR THE BOARD:

(signed by:)

William J. Lee

Administrative Judge

NOTICE TO PARTIES CONCERNING SETTLEMENT

The date that this initial decision becomes final, which is set forth

below, is the last day that the administrative judge may vacate the

initial decision in order to accept a settlement agreement into the

record. See 5 C.F.R. § 1201.112(a)(5).

NOTICE TO APPELLANT

This initial decision will become final on January 22, 1998, 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 the

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

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 filed with:

. The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Room 806

Washington, DC 20419

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 or hand-delivered no later than the date this

initial decision becomes final. If you fail to provide a statement with

your petition that you have either mailed or hand-delivered a copy of

your petition to the agency, your petition will be rejected and

returned to you.

adx A, p. 9

JUDICIAL REVIEW

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

may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, D.C. 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 30 calendar days after the date this initia!

decision becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of

this initial decision in accordance with Board’s regulations.

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE

RAFAEL NATER (pro-se) ) DOCKET NUMBER

Appellant

) NY-1221-98-0272-S-1

)

RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: May 12, 1998

EDUCATION,

Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro se.

No designated representative for the agency.

BEFORE

Joseph A. Hailock

Administrative Judge

ORDER DENYING STAY REQUEST

INTRODUCTION

On March 30, 1998, the Board received the appellant's timely request

for a stay of the agency's action removing him from the position of

Auditor, GS-12, effective February 26, 1998.' For the reasons set

forth below, the request is DENIED.

' The request was mistakenly sent to the Office of the Clerk on March 31,

1998. It was received back in this office on May 5, 1998.

adx B, p. 1

ANALYSIS AND FINDINGS

Background

A stay of a personnel action may be sought under 5 U.S.C.

§ 1221(c) by an employee who reasonably believes that the action

was taken in reprisal for whistle blowing activities. See 5 U.S.C. §

2302(b)(8); 5 C.F.R. § 1209.1; Williams v. Department of Defense,

46 M.S.P.R. 549, 551 (1991). Under the Board's regulations, a stay

request must contain, inter alia, evidence and/or argument showing

that the action complained of was based on whistle blowing and that

there is a substantial likelihood that the appellant will prevail on the

merits of the underlying appeal. See 5 C.F.R. § 1209.9(a)(6)(ii) and

(iii).

The appellant his not shown he is entitled to a stay.-

In order to show that he engaged in whistle blowing, the

appellant must show, that he made a disclosure protected by 5 U.S.C.

§ 2302(b)(8), i.e., he disclosed information he reasonably believed

evidenced a violation of law, rule, or regulation, gross

mismanagement, gross waste of funds, abuse of authority, or

substantial and specific danger to public health or safety. In order to

prevail on the merits of his appeal, the appellant must demonstrate

by preponderant evidence that a disclosure described under 5 U.S.C.

§ 2302(b)(8) was a contributing factor in the action complained of.

See McDaid v. Department of Housing and Urban Development, 46

M. M.S.P.R. 416, 420 (1990).

Here, the stay request is imbedded in a 51-page narrative of

events submitted by the appellant. In an introductory overview, the

appellant alleges that "[dJuring March 1990 to June 1994, [he] made

a series of disclosures about behavior and professional (audit)

irregular practices at the Office of Inspector General ...” Under

"Details" it states that the appellant "raised issues as to tardiness,

abusive use of breaks and lunch time ..., abusive use of the official

telephone line for personal purposes ..., uses of material and office

equipment for other than official government purposes." Further, that

the appellant became aware of using "the Government credit card for

personal use and use of the government ID for non government

purposes.”

I find the latter disclosures, if reasonably believed, would

constitute whistle blowing. The appellant, however, has not

provided enough specific information

adx B, p. 2

OOOO

concerning his disclosures to support a finding the matter s he

reported were such that a reasonable person in his position would

believe they constituted whistle blowing. As to the former

disclosures in the overview concerning "irregular practices," I find

that these involve a difference of opinion between the appellant and

others over the application of accounting standards and do not

constitute whistle blowing. Furthermore, even assuming the appellant

engaged in whistle blowing, he must demonstrate by a preponderance

of the evidence that his protected disclosures were a contributing

factor in the agency's decision to remove him. One of the ways an

appellant can meet this burden is by evidence that the official taking

the personnel action at issue knew of the disclosures, and the

personnel action occurred within a period of time such that a

reasonable person could conclude that the disclosures were a

contributing factor in the personnel -action. See Horton v.

Department of the Navy, 66 F.3d 279, 283-84 (Fed. Cir. 1995), cert.

denied, 116 S.Ct. 1271 (1996). Here, the appellant cites disclosures

made from 1990 to 1994, long before the agency proposed his

removal in November 1997. Thus, I find it unlikely the appellant

could satisfy the contributing factor standard under the

knowledge/timing test. And I do not find that there is other evidence,

such as that pertaining to the strength and weaknesses for taking the

personnel action, whether the appellant's whistle blowing was

personally directed, at the proposing or deciding officials, and

whether these officials had a desire or motive to retaliate against the

appellant which supports a conclusion that whistle blowing, was a

contributing factor in the agency's action. Accordingly, I do not find

the appellant has demonstrated a substantial likelihood he will

prevail on the merits of his appeal.

Accordingly, I find that the appellant has not shown that he

engaged in whistle blowing and that there is a substantial likelihood

that he will prevail on the merits of the appeal. Under the

circumstances, I find it unnecessary to decide whether a stay would

result in extreme hardship to the agency. See 5 C.F.R. § 1209.10.

DECISION

The request for stay is denied.

adx B, p. 3

FOR THE BOARD (signed by:) Joseph A. Hallock

Administrative Judge

adx B, p. 4

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RAFAEL NATER (pro-se) - - -) DOCKET NUMBER

Appellant Te «tim

) NY-1221-96-0334-W-1

)

RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: NOV 3 1998

EDUCATION,

Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro se.

Anthonier L. White, Esquire, Washington, D.C., for the agency.

BEFORE

Ben L. Erdreich, Chairman

Beth S. Slavet, Vice Chair

Susanne T. Marshall, Member

ORDER

After full consideration, we DENY the appellant's petition

for review of the initial decision issued on December 18, 1997,

because it does not meet the criteria for review set forth at 5 C.F.R.

§ 1201.115. After the close of the record on petition for review, see

5 C.F.R. § 1201.114(i), the appellant submitted a reply to the

agency's response to his petition for review; the Board has not

considered this reply because the appellant has not shown good cause

for his delayed filing. See id. This is the Board's final order in this

appeal. The initial decision in this appeal is now final. 5 C.F.R. §

1201.113(b).

adx C, p. 1

NOTICE TO THE APPELLANT REGARDING

FURTHER REVIEW RIGHTS

You have the right to request the United States Court of

Appeals for the Federal Circuit to review the Board's final decision

in your appeal if the court has jurisdiction. See 5 U.S.C. §

7703)(a)(1). 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 receipt of this order by your representative, if

you have one, or receipt by you personally, whichever receipt occurs

first. See 5 U.S.C. § 7703(b)(1).

FOR THE BOARD:

(signed by:) Robert E. Taylor

Clerk of the Board

Washington, D.C.

adx C, p.2

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE

RAFAEL NATER (pro-se) ) DOCKET NUMBER

Appellant

) NY-1221-98-0401-W-1

)

RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: November 23, 1998

EDUCATION,

Vv.

Agency

—

ORDER

After careful consideration of the record on the issue of

jurisdiction, I have determined that the Board lacks jurisdiction over

this appeal. Because the appellant did not plead facts which, if true, ;

would establish jurisdiction, his request for a hearing is DENIED. )

See Manning v. Merit Systems Protection Board, 742 F.2d 1424,

1427-28 (Fed. Cir. 1994). Because of my determination concerning

jurisdiction, I find it unnecessary to rule on any pending motions.

An initial decision containing my findings of fact and conclusions of

law will be forthcoming. All further proceedings in this appeal are

STAYED pending the issuance of my initial decision.

FOR THE BOARD:

(signed by:) Joseph A. Hallock

Administrative Judge

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE

RAFAEL NATER (pro-se) ) DOCKET NUMBER

Appellant

) NY-1221-98-0401-W-1

)

RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: December 31, 1998

EDUCATION,

Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro se.

Tracy Sasser, Esquire, Washington, D.C., for the agency.

BEFORE

Joseph A. Hallock

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant filed a timely individual right of action (IRA)

appeal alleging that his performance evaluation for the year which

ended, April 30, 1997, was based on whistleblowing activities. See

Appeal File (AF) Tab 1. For the reasons set forth below the appeal

is DISMISSED for lack of jurisdiction. Because the appellant did not

plead facts which, if true, would establish jurisdiction, the hearing he

requested was not held. See Manning v. Merit Systems Protection

Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).

adx E, p. 1

bas

RISDICTION

The Board's jurisdiction is not plenary, but is limited to those

areas specifically granted by some law, rule or regulation.. See

Antolin v. Department of Justice, 825 F.2d 1395, 1396 (Fed. Cir.

1989), cert. denied, 498 U.S. 868 (1990). The appellant has the

burden of proof by a preponderance of the evidence’ on the issue of

jurisdiction. See 5 C.F.R. § 1201.56(a)(2). _

To establish the Board’s jurisdiction over an IRA appeal, an

appellant must show, by a preponderance of the evidence, that: (1)

He engaged in whistleblower activity by making a disclosure

protected by 5 U.S.C. § 2302(b)(8), ie., he disclosed information he

reasonably believed evidenced a violation of law, rule, or regulation,

gross mismanagement, a gross waste of funds, abuse of authority, or

a substantial and specific danger to public health or safety; (2) the

agency took or failed to take, or threatened to take or fail to take, a

"personnel action" as defined in 5 U.S.C. § 2302(a)(2) after the July

9, 1989, effective date of the Whistleblower Protection Act (WPA);

and (3) he raised the whistleblower issue before the Office of Special

Counsel and proceedings before the OSC have been exhausted. See

Geyer v. Department of Justice, 63 M.S.P.R. 13, 16-17 (1994).

I issued an Order to Show Cause which informed the

appellant of the requirements which had to met in order for the Board

to have jurisdictions over his appeal. See AF, Tab 3. The Order to

Show Cause informed the appellant that his appeal would be

dismissed unless he alleged facts which, if proven, would establish

that the Board had jurisdiction over his appeal. Jd. The Order to

Show Cause required the appellant to file a copy of all

‘correspondence which he sent to the OSC and all correspondence he

received from the OSC concerning the appealed action. Included

with the appellant's response to the Order to Show Cause is the

complaint which he filed with the OSC. See Tab 4, Report of

Prohibited activity. In the complaint, the appellant alleged that the

motives for the

' Preponderant evidence is that degree of relevant evidence that a

reasonable person, considering the record as a whole, would accept as sufficient to

find that a contested fact is more likely true than not. See 5 C.F.R. § 1201.56(c){(2).

adx E, p.2

agency's action were grievances and an EEO complaint which he

filed and his refusal to desist from grievances and appeals he filed

against the agency. /d. at 1-2. The appellant also alleged that because

he "noticed' many conditions which lead [him] to perceive probable

wrong doing[,]" he started asking for written orders and directives.

The appellant also stated he was sending to the OSC a copy of the

"answers" he provided in response to the 1997 evaluation. Id at 4.

This is an apparent reference to a formal grievance which the

appellant filed relative to the 1997 evaluation which is in the record.

See AF, Tab 1.

To the extent the appellant alleged before the OSC that his

1997 evaluation was in reprisal for grievances and an EEO complaint

which he filed, this can not serve as a basis for the Board to exercise

jurisdiction over his IRA appeal. The essential difference between

the protections of 5 U.S.C. §§ 2308(b)(8) and 2308(b)(9) is the

difference between "reprisal based on disclosure of information and

reprisal based upon exercising a right to complain." Serrao v. Merit

Systems Protection Board, 95 F.3d 1569, 1575 (Fed. Cir. 1996)

(quoting Spruill v. Merit Systems Protection Board, 978 F.2d 679,

690 (Fed: Cir. 1992)). Disclosures made only in grievances and EEO

complaints are not protected under the WPA. See Serrao, 95 F.3d at

1574-75; Thomas v. Department of the Treasury, 77 M.S.P.R. 224,

230 (1998); Martin v. Department of the Air Force, 73 M.S.P.R. 574,

578-79 (1997). Alleged protected disclosures not raised before the

OSC are not within the Board's jurisdiction. See Brewer v.

Department of the Interior, 76 M.S.P.R. 363, 367 (1997).

Beyond the appellant's claims to the OSC that his 1997

evaluation was in reprisal for grievances and an EEO complaint

which he filed, I find nothing in the balance of his complaint to the

OSC which shows he made disclosures which evidenced a violation

of law, rule, or regulation, gross mismanagement, a gross waste of

funds, an abuse o authority, or a substantial and specific danger to

public health or safety. The alleged protected disclosures contained

in the complaint do not disclose "the type of fraud, waste, or abuse

that the WPA was intended to reach." Ellison v. Merit Systems

Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993). I find the

alleged "disclosures" represent no more than professional

disagreement, which do not rise to the level of ,

adx E, p. 3

whistleblowing disclosures. See Carolyn v. Department of the

Interior, 63 M.S.P.R. 684, 691-92, review dismissed, 43 F.3d 1485

(Fed. Cir. 1994) (Table), overruled in part on other grounds,

Thomas, 77 M.S.P.R. 224, 236 n. 9 (1998).

Accordingly, the Board lacks jurisdiction over this appeal.

DECISION

The appeal is DISMISSED.

FOR THE BOARD (signed by:) Joseph A. Hallock

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on February 4, 1999,

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 filed with: :

The Clerk oi the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Room 806

Washington, DC 20419

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

adx E, p. 4

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 Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, D.C. 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 Board’s regulations.

adx E, p. 5

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE

RAFAEL NATER (pro-se) ) DOCKET NUMBER

Appellant

) NY-1221-98-0272-W-1

: )

RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: March 2, 1999

EDUCATION,

Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro sé.

Anthonier White, Esquire, Washington, D.C., for the agency.

BEFORE

Joseph A. Hallock

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant was employed as an Auditor, GS-12, with the

agency's Office of Inspector General, Northeast Area Puerto Rico

Office, in San Juan, Puerto Rico. He filed a timely individual right

of action (IRA) appeal alleging that his performance appraisals for

the years which ended April 30, 1996, (1996 appraisal) and April 30,

1997 (1997 appraisal), and a 5-day suspension effective October 28,

1996, were base on whistleblowing activities.' He also alleged that

he was discriminated against by the

' The appellant also appealed his removal effective February 26, 1998.

Because the removal was an otherwise appealable action, and the appellant had not

sought corrective action from the Special Counsel for his removal before appealing

to the Board, it was docketed separately. See Nater v. Department of Education,

MSPB Docket No. NY-0752-98-0297-I-1.

adx F, p. 1

agency because of his race, national origin, and Political affiliation.

See Appeal File (A-F), Tabs I and 9. For the reasons set forth below,

the appeal is DISMISSED for lack of jurisdiction. Because the

appellant did not plead facts which, if true, would establish

jurisdiction, the hearing he requested was not held. See Manning v.

Merit Systems Protection Board, 742 F.2d 1424, 1427-28 (Fed. Cir.

1984).

JURISDICTION

The Board's jurisdiction is not plenary, but is limited to those

areas specifically granted by some law, rule or regulation.. See

Antolin v. Department of Justice, 825 F.2d 1395, 1396 (Fed. Cir.

1989), cert. denied, 498 U.S. 868 (1990). The appellant has the

burden of proof by a preponderance of the evidence’ on the issue of

jurisdiction. See 5 C.F.R. § 1201.56(a)(2).

To establish the Board’s jurisdiction over an IRA appeal, an

appellant must show, by a preponderance of the evidence, that: (1)

He engaged in whistleblower activity by making a disclosure

protected by 5 U.S.C. § 2302(b)(8), ie., he disclosed information he

reasonably believed evidenced a violation of law, rule, or regulation,

gross mismanagement, a gross waste of funds, abuse of authority, or

a substantial and specific danger to public health or safety; (2) the

agency took or failed to take, or threatened to take or fail to take, a

"personnel action" as defined in 5 U.S.C. § 2302(a)(2) after the July

9, 1989, effective date of the Whistleblower Protection Act (WPA),

and (3) he raised the whistleblower issue before the Office of Special

Counsel and proceedings before the OSC have been exhausted. See

Geyer v. Department of Justice, 63 M.S.P.R. 13, 16-17 (1994).

I issued an Order to Show Cause which informed the

appellant of the requirements which had to met in order for the Board

to have jurisdictions over his appeal. See AF, Tab 4. The Order to

Show Cause informed the appellant that his appeal

2 Preponderant evidence is that degree of relevant evidence that a

reasonable person, considering the record as a whole, would accept as sufficient to

find that a contested fact is more likely true than not. See 5 C.F.R. § 1201.56(c)(2).

adx F, p. 2

would be dismissed unless he alleged facts which, if proven, would

establish that the Board had jurisdiction over his appeal. Jd. The

Order to Show Cause required the appellant to file copy of all

correspondence that he sent to OSC concerning the appealed

actions. Included with the appellant’s response to the order to show

Cause are two complaints which he filed with the OSC. See AF, Tab

17, attachment A and B. One complaint is dated January 20, 1997,

and concerned the 1996 appraisal and the suspension. /d., attachment

A. The other is dated May 20, 1998, and concerned the 1997

appraisal. Jd., attachment B.

The 1996 appraisal and the suspension

In his complaint to the OSC, the appellant alleged that the

motives for the agency’s actions were grievances and an EEO

complaint which he filed and his refusal to desist from grievances

and appeals he filed against the agency. See A-F, Tab 17, attachment

A. The appellant alleged that because he "noticed many conditions

which lead [him] to perceive probable wrong doing[,]" he started

asking for written orders and directives. The appellant attached to

the complaint his responses to the findings contained in a Quality

Assurance review of audits in which he participated. Jd.

To the extent the appellant alleged before the OSC that his

1997 evaluation was in reprisal for grievances and an EEO complaint

which he filed, this can not serve as a basis for the Board to exercise

jurisdiction over his IRA appeal. The essential difference between

the protections of 5 U.S.C. §§ 2308(b)(8) and 2308(b)(9) is the

difference between "reprisal based on disclosure of information and

reprisal based upon exercising a right to complain.” Serrao v. Merit

Systems Protection Board, 95 F.3d 1569, 1575 (Fed. Cir. 1996)

(quoting Spruill v. Merit Systems Protection Board, 978 F.2d 679,

690 (Fed. Cir. 1992)). Disclosures made only in grievances and EEO

complaints are not protected under the WPA. See Serrao, 95 F.3d at

1574-75; Thomas v. Department of the Treasury, 77 M.S.P.R. 224,

230 (1998); Martin v. Department of the Air Force, 73 M.S.P.R. 574,

578-79 (1997). Alleged protected disclosures not raised before the

OSC are not within the Board's jurisdiction. See Brewer v.

Department of the Interior, 76 M.S.P.R. 363, 367 ( 1997).

adx F, p. 3

Beyond the appellant's claims to the OSC that his 1996

evaluation and the suspension were in reprisal for grievances and an

EEO complaint which he filed, I find nothing in the balance of his

complaint to the OSC which shows he made disclosures which

evidenced a violation of law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse o authority, or a

substantial and specific danger to public health or safety. The

alleged protected disclosures contained in the complaint do not

disclose "the type of fraud, waste, or abuse that the WPA was

intended to reach." Ellison v. Merit Systems Protection Board, 7 F. 3d

1031, 1035 (Fed. Cir. 1993). I find the alleged "disclosures",

including the appellant’s responses to the findings of the Quality

Assurance review team, represent no more than professional

disagreement, which do not rise to the level of whistleblowing

disclosures. See Carolyn v. Department of the Interior, 63 M.S.P.R.

684, 691-92, review dismissed, 43 F.3d 1485 (Fed. Cir. 1994)

(Table), overruled in part on other grounds, Thomas, 77 M.S.P.R.

224, 236 n. 9 (1998).

The 1997 appraisal

The instant appeal was filed on March 30, 1998. The

appellant's complaint to the OSC concerning the 1997 appraisal is

dated May 27, 1998. See A.F., Tab 17, attachment B. Thus, the

record is clear that at the time the appeal was filed the appellant has

not raised the whistleblower issue before the OSC and proceedings

before the OSC could not have been exhausted. The Board, therefore,

had no basis on which to exercise jurisdiction over the appeal

concerning the 1997 appraisal at the time it was filed.’

Moreover, IRA appeals under the WPA are not subject to the

provisions of 5 U.S.C. § 7701 or § 7702 thus, the Board lacks

jurisdiction to adjudicate the merits of the personnel actions at issue

in an IRA appeal and lacks the authority to decide, in conjunction

with an IRA appeal, the merits of an appellant's allegations of

prohibited discrimination. Marren v. Department of Justice, 51

M.S.P.R. 632, 638-39 (1991),

> The appellant's claim that the 1997 appraisal was based on

whistleblowing activities later became the subject of a separately filed appeal. |

issued an initial derision which dismissed that appeal for lack of

adx F, p. 4

| 5

aff'd, 980 F.2d 745 (Fed. Cir. 1992) (Tabie), modified in part on

other grouna’s, Robinson v. U-S. Postal Service, 63 M.S.P.R. 307,

323 a. 13 (1994). Accordingly, the Board lacks jurisdiction over this

appeal.‘

DECISION

The appeal is DISMISSED.

FOR THE BOARD (signed by:) ~—‘ Joseph A. Hallock

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on April 6, 1999,