Ernesto Peraza v. Department of Commerce ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERNESTO PERAZA, DOCKET NUMBER
Appellant, DC-315H-20-0393-I-1
v.
DEPARTMENT OF COMMERCE, DATE: June 27, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ernesto Peraza , Abdington, Maryland, pro se.
Josh Hildreth , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his termination from his position
in the competitive service during his probationary period. On petition for review,
the appellant alleges the following: (1) the agency discriminated against him
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on his marital status; (2) the agency removed him based on issues that arose
pre-appointment; (3) his termination was impelled by prejudice; (4) the agency
provided negative information regarding his employment history in an attempt to
improperly influence the administrative judge; (5) the administrative judge failed
to rule on his discovery-related requests; and (6) the administrative judge
exhibited bias. Petition for Review (PFR) File, Tab 1 at 4-6. The appellant also
provides an additional document. Id. at 7. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The Board’s jurisdiction 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). A probationary employee in
the competitive service who has not completed 1 year of continuous service has
no statutory right of appeal to the Board. See 5 U.S.C. § 7511(a)(1)(A); Harris v.
Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005). However, a probationary
employee in the competitive service has a regulatory right of appeal in three
limited circumstances: (1) the employee was discriminated against on account of
his marital status; (2) the employee was discriminated against based on partisan
3
political reasons; or (3) the agency action was based (in whole or part) on issues
that arose pre-appointment and the agency did not follow required procedures.
Blount v. Department of the Treasury, 109 M.S.P.R. 174, ¶ 5 (2008); 5 C.F.R.
§§ 315.805-.806. To be entitled to a jurisdictional hearing, an appellant must
make a nonfrivolous allegation 2 of Board jurisdiction over his appeal. Ferdon v.
U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).
We have considered the appellant’s assertions regarding marital status
discrimination, pre-appointment issues, and prejudice, PFR File, Tab 1 at 4-6, but
we find that they do not provide a basis to disturb the administrative judge’s
reasoned conclusion that the appellant failed to make a nonfrivolous allegation of
Board jurisdiction on any of these bases, Initial Appeal File (IAF), Tab 7, Initial
Decision at 7-9.
The appellant asserts that the agency provided the administrative judge
with negative information regarding his employment history, i.e., the fact that he
had previously been terminated from a Federal position during his probationary
period, in an effort to improperly influence the administrative judge. PFR File,
Tab 1 at 5. We find this assertion unavailing. The information that the agency
provided to the administrative judge, IAF, Tab 6 at 5-6, 17, was both responsive
to the administrative judge’s jurisdictional order, IAF, Tab 3 at 5-6, and relevant
to the jurisdictional issue insofar as it clarified that the appellant lacked 1 year of
current continuous service, see 5 U.S.C. § 7511(a)(1)(A); see also McCormick v.
Department of the Air Force, 307 F.3d 1339, 1342-43 (Fed. Cir. 2002).
The appellant alleges that the administrative judge erred by issuing his
initial decision “without explicitly approving or denying” a discovery-related
request that he made in his response to the administrative judge’s jurisdictional
order. PFR File, Tab 1 at 4. Here, although the administrative judge did not
issue a ruling on the appellant’s ostensible discovery request, IAF, Tab 5 at 6, any
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
4
error related thereto was not prejudicial insofar as the appellant’s request failed to
comply with the requirements of 5 C.F.R. § 1201.73, see Van Amber v. U.S.
Postal Service, 47 M.S.P.R. 320, 327 (1991) (finding that, although the
administrative judge committed adjudicatory error by not ruling on, among other
things, the appellant’s motion to compel answers to interrogatories, it was not
prejudicial error because the appellant’s motion did not comply with the Board’s
regulatory requirements). Moreover, the appellant has failed to explain either
before the administrative judge or on review how the information he sought in his
request would change the outcome of his appeal. See Davis v. Department of
Defense, 103 M.S.P.R. 516, ¶ 13 (2006) (finding that, when an appeal is
dismissed for lack of jurisdiction, there is no prejudice to an appellant’s
substantive rights based on the absence of discovery that did not seek information
that would establish the Board’s jurisdiction). Thus, a different outcome is not
warranted.
The appellant makes a series of statements that amount to allegations of
bias on the part of the administrative judge. PFR File, Tab 1 at 4-6. To this end,
he seemingly suggests that the administrative judge was not impartial, id. at 4,
and he avers that the administrative judge “misrepresent[ed his] words,” id. at 5. 3
The Board has consistently held that, in making a claim of bias against an
administrative judge, the appellant must overcome the presumption of honesty
and integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior, 81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King,
1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Postal Service,
3
He specifically asserts that the initial decision incorrectly indicated that he had alleged
that a supervisor had engaged in “harassing-like behavior” when he had in fact alleged
that two other newly hired employees had so behaved. PFR File, Tab 1 at 5. As we
find this distinction immaterial for purposes of the jurisdictional issue, a different
outcome is not warranted. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
5
87 M.S.P.R. 313, ¶ 12 (2000). Here, as the record is devoid of any indication of
personal bias, the appellant’s allegation is unavailing.
Finally, the appellant provides, for the first time, a document related to his
work productivity, PFR File, Tab 1 at 7, to show, among other things, that he was
“showing signs of improvement” prior to his removal, id. at 6. However, he
provides no explanation as to why he did not provide this document to the
administrative judge. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980) (finding that the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). Moreover, the
document is not material to the jurisdictional issue. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.