Richard Zakosky v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD ZAKOSKY, DOCKET NUMBER
Appellant, SF-1221-14-0280-W-1
v.
DEPARTMENT OF VETERANS DATE: August 5, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard Zakosky, San Diego, California, pro se.
Joan L. Liguoro, Esquire, Los Angeles, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his whistleblower retaliation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant is a Health Technician for the agency’s San Diego Healthcare
Medical Center. Initial Appeal File (IAF), Tab 4 at 4. On January 21, 2014, he
filed a Board appeal, alleging that he was subject to whistleblower retaliation.
IAF, Tab 1 at 4. The appellant indicated that he filed a complaint with the Office
of Special Counsel (OSC) on October 3, 2013, but that he had not yet received a
final OSC decision. Id. at 5. His appeal alleged that he reported misbehavior of
his coworkers but was ambiguous as to what personnel action was taken in
reprisal for that disclosure. See id. at 6 (alleging that he “was tooken out [sic]
oct. [sic] 12 th of 2013 for mental stress because of all the wrongdoing I saw . . .
and transfered [sic] to an outside mental hospital for 6 days as an inpatient”).
¶3 The administrative judge issued an acknowledgment order. IAF, Tab 2. He
construed the appellant’s claim as an individual right of action (IRA) appeal. Id.
at 2. Accordingly, the judge provided a detailed explanation of the appellant’s
burden of proof regarding jurisdiction. Id. at 2-6. The acknowledgment order
directed the appellant to file within 15 days argument and evidence to meet his
burden of proving Board jurisdiction. Id. at 7-8. The appellant failed to submit
any response. The agency moved to dismiss the appeal. IAF, Tab 5 at 6-7.
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¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of Board jurisdiction. IAF, Tab 1 at 3, Tab 6, Initial Decision
(ID). He concluded that the appellant did not meet his jurisdictional burden
because he failed to show that he had exhausted his administrative remedies with
OSC. ID at 4. The appellant has filed a petition for review, Petition for Review
(PFR) File, Tab 1, and the agency has filed a response, PFR File, Tab 4.
¶5 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the
burden of establishing the Board’s jurisdiction by a preponderance of the
evidence. 2 5 C.F.R. § 1201.56(a)(2)(i). In addition, there is no statutory
requirement that the Board hold a hearing on the threshold issue of jurisdiction.
Walker v. Department of Army, 119 M.S.P.R. 391, ¶ 6 (2013). However, if an
appellant makes a nonfrivolous allegation 3 of jurisdiction, but a determination
cannot be made based on the documentary evidence, the Board should hold an
evidentiary hearing to resolve the jurisdictional question. Id.¶6 The Board has jurisdiction over an IRA appeal if an appellant has exhausted
his administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he engaged in whistleblowing activity by making a protected disclosure
under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1214(a)(3); Yunus
v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). An
appellant has not exhausted his OSC remedy unless he has filed a complaint with
2
A preponderance of the 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 to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
3
“Nonfrivolous allegations” are allegations of fact that, if proven, could establish that
the Board has jurisdiction over the matter at issue. Walker, 119 M.S.P.R. 391, ¶ 6, n.2.
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OSC and either OSC has notified him that it was terminating its investigation of
his allegations or 120 calendar days have passed since he first sought corrective
action. 5 U.S.C. § 1214(a)(3); Simnitt v. Department of Veterans
Affairs, 113 M.S.P.R. 313, ¶ 8 (2010).
¶7 Below, the appellant alleged that he filed a complaint with OSC, but he
failed to submit that complaint to the Board. See IAF, Tab 1 at 5. He also failed
to present any other evidence or argument to nonfrivolously allege that he had
exhausted his OSC remedy, despite the administrative judge’s order directing him
to do so. See IAF, Tab 2 at 7-8.
¶8 On review, the appellant completed a petition for review form. PFR File,
Tab 1 at 2-4. We interpret this pleading liberally. See Melnick v. Department of
Housing & Urban Development, 42 M.S.P.R. 93, 97-98 (1989), aff’d, 899 F.2d
1228 (Fed. Cir. 1990) (Table) (parties without the benefit of legal counsel are not
required to plead the issues with the precision required of an attorney). The
appellant alleges that he was denied the opportunity to submit evidence and have
a hearing. PFR File, Tab 1 at 2. He also reiterates his earlier allegation that he
was a whistleblower. Id. at 3.
¶9 Despite the appellant’s assertions, the administrative judge not only
provided him the opportunity to present evidence, the judge ordered him to
present evidence and/or argument to meet his jurisdictional burden. See IAF,
Tab 2 at 7-8. While the appellant rightly alleges that he was not provided a
hearing, no hearing was required due to his failure to first present a nonfrivolous
allegation of Board jurisdiction. See Walker, 119 M.S.P.R. 391, ¶ 6. The
administrative judge again notified the appellant of his jurisdictional burden in
the initial decision. ID at 3-4. Nevertheless, the appellant failed to present any
evidence with his petition for review that he satisfied the threshold requirement
of exhausting his administrative remedies with OSC. Moreover, we note that,
even if the appellant made a protected disclosure, he failed to nonfrivolously
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allege that he suffered a personnel action or that any protected disclosure was a
contributing factor in the agency’s decision to take or fail to take such an action.
¶10 Based upon the above, we deny the petition for review and affirm the initial
decision to dismiss for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
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Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.