Anthony Gomez v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY GOMEZ, DOCKET NUMBER
Appellant, NY-1221-17-0105-B-1
v.
DEPARTMENT OF VETERANS DATE: October 23, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Timothy O’Boyle , Esquire, Hampton, Virginia, for the agency.
Jane Yoon , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which found that the appellant did not establish jurisdiction over a claim that the
Board remanded for further adjudication. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify that the claims addressed in the initial decision are denied
on the merits while the additional claim remanded for further adjudication is
dismissed for lack of jurisdiction, we AFFIRM the initial decision.
¶2 In an initial decision, the administrative judge first assigned to this
individual right of action appeal denied the appellant’s request for corrective
action, on the merits, regarding two specific claims. Gomez v. Department of
Veterans Affairs, MSPB Docket No. NY-1221-17-0105-W-1, Initial Decision
(ID). The first concerned allegations of reprisal for disclosures about the
agency’s filling of an Administrative Officer vacancy. ID at 6-9. The second
concerned allegations of reprisal for his filing of a grievance. ID at 9-10. On
review, the Board agreed with those findings. Gomez v. Department of Veterans
Affairs, MSPB Docket No. NY-1221-17-0105-W-1, Remand Order (RO), ¶¶ 4-10
(July 24, 2023). However, the Board remanded the appeal for consideration of
another alleged disclosure not addressed in the initial decision, i.e., one about the
agency’s filling of a Lead Facility Telehealth Coordinator (FTC) vacancy. RO,
¶¶ 11-16.
¶3 On remand, a newly assigned administrative judge instructed the appellant
to establish jurisdiction over this remanded claim by presenting nonfrivolous
3
allegations that he made a disclosure protected under section 2302(b)(8). Gomez
v. Department of Veterans Affairs, MSPB Docket No. NY-1221-17-0105-B-1,
Remand File (RF), Tab 6. The appellant responded, arguing that the issue had
already been decided in his favor. RF, Tab 9 at 8-11. In the alternative, he
argued that the Board did have jurisdiction over the alleged disclosure. Id.
at 11-19. The administrative judge issued a remand initial decision finding
otherwise. RF, Tab 12, Remand Initial Decision (RID) at 5-13.
¶4 In his remand petition for review, the appellant presents the same arguments
he presented below, with only slight inconsequential differences. Compare RF,
Tab 9 at 8-20, with Gomez v. Department of Veterans Affairs, MSPB Docket No.
NY-1221-17-0105-B-1, Remand Petition for Review (RPFR) File, Tab 1 at 11-22.
He reasserts that jurisdiction over the remanded claim was already decided in his
favor or that the Board does have jurisdiction over the matter. RPFR File, Tab 1
at 11-22. We are not persuaded by these arguments. 2
¶5 Although we do not find any basis for granting the appellant’s remand
petition for review, we modify the remand initial decision in one respect. The
Board’s prior remand order vacated the initial decision but invited the
administrative judge to incorporate the associated findings into a remand initial
decision that would address the one unaddressed claim. RO, ¶ 15. The newly
assigned administrative judge stated that she was doing so in the remand initial
2
In analyzing whether the appellant nonfrivolously alleged that he disclosed an abuse
of authority, the administrative judge applied the standard historically used by the
Board; under that standard, an abuse of authority is an arbitrary and capricious exercise
of power by a Federal official or employee that adversely affects the rights of any
person or results in personal gain or advantage to himself or to other preferred persons.
RID at 9 (citing Chavez v. Department of Agriculture, 120 M.S.P.R. 285, ¶ 22 (2013)).
However, in Smolinski v. Merit Systems Protection Board, 23 F.4th 1345, 1351-52 (Fed.
Cir. 2022), the U.S. Court of Appeals for the Federal Circuit defined an abuse of
authority more broadly as an arbitrary and capricious exercise of authority that is
contrary to the agency’s mission. We have considered the appellant’s additional
disclosure under the standard set forth in Smolinski, and we still find that he failed to
nonfrivolously allege that he disclosed an abuse of authority regarding the Lead FTC
vacancy. Thus, the result is the same under either standard.
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decision. RID at 2. However, she further described the remand initial decision as
one dismissing the appeal, rather than just the remanded claim, for lack of
jurisdiction. RID at 2, 13. To clarify, the sum of these proceedings is as follows:
The Board denies the appellant’s request for corrective action, on the merits,
regarding alleged disclosures about the Administrative Officer vacancy and
alleged grievance activity. ID at 6-10; RO, ¶¶ 4-10, 15; RID at 2. The Board
dismisses the appellant’s other alleged disclosure, about the Lead FTC vacancy,
for lack of jurisdiction. RID at 5-13.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3
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.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
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:
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:
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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. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4
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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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.