Alfonso Diazdelcastillo v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALFONSO J. DIAZDELCASTILLO, DOCKET NUMBER
Appellant, DC-1221-16-0507-W-1
v.
DEPARTMENT OF HOMELAND DATE: June 22, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alfonso J. Diazdelcastillo, Brooksville, Florida, pro se.
Aaron Baughman, Esquire, and Carley D. Bell, Esquire, Arlington,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 2
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).
BACKGROUND
¶2 The appellant, a Principal Security Inspector for the agency’s
Transportation Security Administration (TSA), filed this IRA appeal and
requested a hearing. Diazdelcastillo v. Department of Homeland Security, MSPB
Docket No. DC-1221-16-0507-W-1, Initial Appeal File (0507 IAF), Tab 1. The
administrative judge issued an order informing the appellant of his jurisdictional
burden and directing him to file evidence and argument on the issue. 0507 IAF,
Tab 7. Both the appellant and the agency responded. 3 0507 IAF, Tabs 13-25, 29.
In his response, the appellant alleged that the agency had taken 35 personnel
actions against him in retaliation for 3 protected disclosures that he made to the
Office of Special Counsel (OSC) in April 2008. 0507 IAF, Tab 13 at 4-24.
2
Because we so find, we need not address the timeliness of the appellant’s petition for
review. See Edwards v. Department of Homeland Security, 110 M.S.P.R. 243, ¶ 7 n.*
(2008).
3
As set forth in greater detail in the initial decision, the appellant submitted over 1,400
pages of documents with his jurisdictional response. 0507 IAF, Tab 43, Initial Decision
at 10.
3
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdict ion. 0507
IAF, Tab 43, Initial Decision (0507 ID) at 1, 23. In so doing, the administrative
judge found that the appellant nonfrivolously alleged that two of his three
disclosures to OSC constituted protected disclosures under 5 U.S.C. § 2302(b)(8).
0507 ID at 10-14. However, he concluded that the appellant failed to make a
nonfrivolous allegation that either disclosure was a contributing factor in any of
the 35 purported personnel actions taken by the agency. 4 0507 ID at 17-23. In so
concluding, the administrative judge reasoned that the appellant had failed to
provide dates for all but one of these alleged personnel actions, which appeared to
have taken place before the appellant made his protected disclosures. 5 0507 ID
at 20-21. The administrative judge also reasoned that the appellant’s allegations
regarding the personnel actions were “vague and conclusory” and that the
4
Because he so found, the administrative judge declined to make a specific finding
regarding whether the appellant had exhausted his administrative remedies with OSC.
0507 ID at 23 n.22.
5
In so reasoning, the administrative judge explained that, in its jurisdictional response,
the agency had asserted that the alleged personnel actions had occurred before the
appellant’s disclosures and that the appellant “[did] not substantively refute the
agency’s contentions [regarding the timing of the alleged personnel actions] .” 0507 ID
at 21; 0507 IAF, Tab 29 at 8-10. A nonfrivolous allegation is an allegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its face.”
Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir.
2020). In assessing whether an appellant has made a nonfrivolous allegation, an
administrative judge may consider the agency’s documentary submissions; however, to
the extent the agency’s evidence contradicts the appellant’s otherwise adequate prima
facie showing of jurisdiction, the administrative judge may not weigh evidence and
resolve conflicting assertions. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329
(1994). We find that, to the extent the administrative judge improperly considered the
agency’s pleadings in assessing the contributing factor jurisdictional criterion, any such
reliance was harmless; indeed, as discussed herein, regardless of the agency’s assertions
concerning the dates of the alleged personnel actions, the appellant ’s vague allegations
were insufficient to satisfy the subject criterion. 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).
4
appellant had failed to, among other things, identify the agency officials
responsible for the large majority of the alleged actions. Id.¶4 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply to the agency’s response.
Diazdelcastillo v. Department of Homeland Security, MSPB Docket No.
DC-1221-16-0507-W-1, Petition for Review (0507 PFR) File, Tabs 1, 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence 6 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations 7 of the following: (1) he made a disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity 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).
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 11, 14. To
satisfy the contributing factor criterion at the jurisdictional stage, an appellant
need only make a nonfrivolous allegation that the fact of, or content of, the
protected disclosure or activity was one factor that tended to affect a personnel
action in any way. Id., ¶ 14.
¶6 On petition for review, the appellant objects to the Board’s handling of a
previous IRA appeal filed by the appellant, i.e., Diazdelcastillo v. Department of
Transportation, MSPB Docket No. DE-1221-16-0234-W-1. 0507 PFR File, Tab 1
at 1-2. The appellant asserts that the Board’s handling of this prior appeal
unjustly created a “black mark” against him. Id. at 2. A review of the record of
6
Preponderant evidence is the 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. § 1201.4(q).
7
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
5
the prior appeal indicates that the appellant previously attempted to file an IRA
appeal against the Department of Homeland Security; however, due to lack of
clarity in his submissions, the Board named the Department of Transportation as
respondent instead. Diazdelcastillo v. Department of Transportation, MSPB
Docket No. DE-1221-16-0234-W-1, Initial Appeal File (0234 IAF), Tabs 1, 3.
The administrative judge assigned to this prior matter dismissed the appeal for
lack of jurisdiction; however, in so doing, he explained that the appellant c ould
file a new IRA appeal against the Department of Homeland Security. 0234 IAF,
Tab 10, Initial Decision at 3. The appellant did so, resulting in the instant appeal.
We find that the appellant’s substantive rights were not harmed by the Board’s
handling of his prior appeal and that his arguments related thereto do not warrant
a different outcome in the instant appeal.
¶7 The appellant contends that both OSC and the agency have withheld
documents that he needs for the instant IRA appeal. 0507 PFR File, Tab 1 at 2-8,
10-11. He avers that these documents “were previously submitted to OSC and
contain about 2,500 pages of [d]isclosures.” Id. at 2. We find the appellant’s
assertions in this regard both unclear and unavailing. 8 Indeed, although the
appellant seemingly argues that some or all of these 2,500 documents will enable
him to satisfy his jurisdictional burden, id. at 10-11, he neither describes the
documents with any particularity nor explains why he is unable to make a
nonfrivolous allegation of contributing factor absent the same, 9 see Wagner v.
8
The record suggests that the appellant is requesting documents that he himself
provided to OSC. E.g., 0507 IAF, Tab 35 at 4. Although unclear, it appears that he
may currently be in possession of at least some of these documents. To this end, he
states as follows in his petition for review: “Appellant pleads to the MSPB to accept
Appellant’s identical documents other than the ones that could eventually be delivered
to Appellant as requested by Appellant from OSC and TSA.” 0507 PFR File, Tab 1
at 7-8 (grammar and punctuation in original).
9
For instance, as discussed herein, the initial decision indicated that the appellant had
failed to allege that his protected disclosures predated the majority of the 35 alleged
personnel actions. 0507 ID at 20-21. Indeed, the appellant had asserted as follows in
his response to the administrative judge’s jurisdictional order: “[p]roceeding (sic) this
6
Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d
1236 (Fed. Cir. 1993) (Table); see also 5 C.F.R. § 1201.114(b). To the extent the
appellant argues that the respondent agency should have provided him with these
documents via discovery but failed to do so, 0507 PFR File, Tab 1 at 11, Tab 7
at 5, his failure to file a motion to compel before the administrative judge
precludes him from raising the issue on review, see Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
2006). 10 Thus, a different outcome is not warranted.
¶8 Regarding the contributing factor jurisdictional criterion, the appellant
again provides a list of 35 alleged personnel actions, which appears to be
identical to the list he submitted to the administrative judge. 0507 PFR File,
Tab 1 at 10-13; 0507 IAF, Tab 13 at 5-9. The appellant, however, still has not
provided the information that would be necessary to make a connection between
his disclosures and the alleged personnel actions, e.g., he has not alleged, even in
the most general of terms, when the majority of these purported actions took
place nor has he discernably indicated who took these purported personnel
actions. See Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶¶ 14-15
(2012) (summarizing the various methods by which an appellant can satisfy the
contributing factor criterion). Indeed, despite being notified 3 times (once in the
administrative judge’s jurisdictional order, once in the agency’s response to the
jurisdictional order, and once in the initial decision itself) that he needed to allege
this information, the appellant has detectably alleged a timeframe for only 1 of
disclosure [] I was subjected to the following reprisals.” 0507 IAF, Tab 13 at 5. On
review, the appellant again fails to discernably allege that his disclosures were made
prior to the majority of the alleged personnel actions, much less provide even a general
timeline for the alleged actions.
10
To the extent the appellant argues that the administrative judge erred in denying his
request for a stay so that he could, among other things, obtain documents from OSC,
0507 ID at 3 n.5, we find his argument unavailing. To the extent he requests the Board
to order OSC to produce the subject documents, his request is denied. 0507 PFR File,
Tab 1 at 10.
7
the 35 enumerated agency actions, i.e., his supervisor’s January 6, 2011 failure to
summon emergency medical services for him. 11 0507 ID at 20-21; 0507 PFR File,
Tab 1 at 11-13; 0507 IAF, Tab 7, Tab 29 at 8-10; see El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that, because the subject
personnel action predated the disclosure, there was no way that the disclosure
could have contributed to the personnel action), aff’d, 663 F. App’x 921 (Fed.
Cir. 2016); see also Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18
n.2 (2002) (indicating that an appellant is required to articulate claims with
reasonable clarity and that the Board is not obligated to pore through a
voluminous record to make sense of various allegations). Thus, we agree that the
appellant failed to make a nonfrivolous allegation that his protected disclosures
contributed to a personnel action.
¶9 Last, the appellant avers that the administrative judge erred in finding that
one of his disclosures was not protected. 0507 PFR File, Tab 1 at 8; 0507 ID
at 14-17. We find, however, that this argument is unavailing with regards to the
11
We agree with the administrative judge’s conclusion that the appell ant’s assertions
regarding this January 6, 2011 incident do not constitute a nonfrivolous allegation of a
personnel action as defined by 5 U.S.C. § 2302(a). 0507 ID at 21-22 & n.20; see
Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 15 (explaining that, to
constitute a “significant change in duties, responsibilities, or working conditions” under
section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the
overall nature or quality of an employee’s working conditions, responsibilities, or
duties). Moreover, the appellant appears to argue on review that his supervisor’s failure
to summon emergency medical services was precipitated by racial discrimination. 0507
PFR File, Tab 1 at 15.
Although not addressed in the initial decision, we acknowledge that the appellant also
alleged that the agency had “denied and failed to respond to numerous requests for
information as to the status of [his] March 17, 2011 initial requests for medical
accommodation via telework.” 0507 IAF, Tab 13 at 8. We can deduce that the
agency’s alleged denials/failures in this regard took place at some point after March 17,
2011, i.e., approximately 3 years after the appellant made his protected disclosures;
however, we find that this allegation does not amount to a nonfrivolous allegation of a
personnel action as defined by 5 U.S.C. § 2302(a). Moreover, the appellant has not
alleged who took this action or whether the acting individual(s) had actual or imputed
knowledge of his 2008 disclosures.
8
contributing factor jurisdictional criterion, which is the dispositive issue in this
matter. Indeed, even assuming that the administrative judge erred in finding that
the appellant failed to make a nonfrivolous allegation that one of his three
disclosures to OSC 12 was protected, the appellant’s attempt to connect this
disclosure to the alleged personnel actions suffers from the same infirmities as his
attempt to connect the other disclosures to the alleged personnel actions.
¶10 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 13
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 case s 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
12
We clarify that the appellant’s disclosures to OSC also constituted protected activity
under 5 U.S.C. § 2302(b)(9)(C); however, given the appellant’s failure to satisfy the
contributing factor criterion, this issue is not material to the outcome of this appeal.
See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 62 (indicating that
a disclosure of information to OSC constitutes protected activity under 5 U.S.C.
§ 2302(b)(9)(C) regardless of its content).
13
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.
9
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.
(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
10
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
11
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. 14 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:
14
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.
12
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.