UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LUIS ARIZMENDI,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

SF-1221-14-0576-W-1

DATE: April 21, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Luis Arizmendi, Trabuco Canyon, California, pro se.

Joel R. Alvarey, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

denied his request for corrective action in his individual right of action (IRA) 

appeal. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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on an erroneous 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

except as expressly MODIFIED by this Final Order. Specifically, we find that 

the appellant did not prove by preponderant evidence that he exhausted his 

remedies before the Office of Special Counsel (OSC) as to his assertion that he 

disclosed an alleged violation of safety standards set forth in regulations issued 

by the Occupational Safety & Health Administration (OSHA). We DISMISS for 

lack of jurisdiction the appellant’s claim as to that disclosure, and we VACATE 

the administrative judge’s findings concerning the merits of that claim.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 On September 17, 2013, the appellant, who has asthma, sent an email to the 

head of his subagency in which he asserted that his local managers intentionally 

exposed him to paint fumes on October 9, 2012, “with the intent to harm” when 

they permitted the General Services Administration to paint the elevator lobby of 

the building in which he worked. Initial Appeal File (IAF), Tab 11 at 80-81; see 

also IAF, Tab 7 at 43-45, Tab 13 at 27. In the email, the appellant accused local 

management of “attempted poisoning or criminal harassment.” Id., Tab 11 at 81. 

On October 23, 2013, the agency issued the appellant a letter of reprimand for 

sending the email. Id. at 19-23. 
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¶3 Thereafter, the appellant filed this IRA appeal and contended that the 

reprimand constituted reprisal for his email, which he alleged was protected 

whistleblowing. The administrative judge found jurisdiction and convened a 

hearing. IAF, Tab 28 at 4-5. Thereafter, the administrative judge found that the 

appellant did not prove that he made a protected disclosure because he failed to 

prove that he had a reasonable belief that the agency’s actions violated a law, 

rule, or regulation, or that he had a reasonable belief that the agency created a 

substantial and specific danger to public health and safety. Initial Decision (ID)

at 6-10. The appellant petitions for review. Petition for Review (PFR) File, 

Tabs 1-2.

¶4 To establish a prima facie case under the Whistleblower Protection Act, the 

appellant must prove by preponderant evidence that he made a protected 

disclosure and that the disclosure was a contributing factor in a personnel action. 

McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594, 

¶ 29 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert denied, 134 S. Ct. 386 

(2013). A protected disclosure is a disclosure that an appellant reasonably 

believes evidences, as relevant here, a violation of law, rule, or regulation, or a 

substantial and specific danger to public health or safety. Id., ¶ 34. A reasonable 

belief exists if a disinterested observer with knowledge of the essential facts 

known to and readily ascertainable by the appellant could reasonably conclude 

that the actions of the government violated a law, rule or regulation or constituted 

a substantial and specific danger to public health or safety. See id. This is an 

objective test. See, e.g., Miller v. Department of Homeland Security,

111 M.S.P.R. 312, ¶ 5 (2009). The appellant need not prove that the condition 

disclosed actually established a violation of law or regulation; rather, he must 

show that the matter disclosed was one that a reasonable person in his position 

would believe evidences a violation of law or regulation. McCarthy, 

116 M.S.P.R. 594, ¶ 34.
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The Board lacks jurisdiction over the appellant’s claim concerning his purported 

disclosure of a violation of OSHA regulations.

¶5 In an IRA appeal, an appellant must first prove that the Board has 

jurisdiction over the appeal by, inter alia, proving that he exhausted his 

administrative remedies before OSC. Clarke v. Department of Veterans Affairs, 

121 M.S.P.R. 154, ¶ 11 (2014). To satisfy the exhaustion requirement, an 

appellant must inform OSC of the precise ground of his whistleblowing claim, 

giving OSC a sufficient basis to pursue an investigation that might lead to 

corrective action. Id., ¶ 12. The test of the sufficiency of an appellant’s claim to 

OSC is the statement that he made in the complaint requesting corrective action, 

not his post hoc characterization of those statements. Id.; see Ward v. Merit 

Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). Exhaustion with 

OSC is a jurisdictional prerequisite to Board consideration of the substance of the 

appellant’s allegedly protected disclosures and the scope of an IRA appeal is 

limited to those disclosures raised before OSC. Clarke, 121 M.S.P.R. 154, ¶ 16. 

¶6 In his original disclosure to the agency and his OSC complaint, the 

appellant contended that the agency posed a substantial and specific danger to 

public health and safety and violated unspecified criminal law. IAF, Tab 4 at 11, 

Tab 11 at 80-81. Specifically, in his OSC complaint, in response to a question 

asking “What information did the victim disclose?” the appellant responded 

“Substantial and specific danger to public health or safety” and “Violation of Law 

(criminal).” IAF, Tab 4 at 11. Further, he asserted in the narrative portion of his 

OSC complaint that he disclosed potential criminal conduct and a substantial and 

specific danger to public health or safety. Id. He later fleshed out his allegations 

on appeal by contending that the agency violated California Penal Code § 375 and 

OSHA’s regulations at 29 C.F.R. § 1910.134 and 29 C.F.R. part 1926 when it 

exposed employees and the public to paint fumes. IAF, Tab 17 at 6, Tab 25. 

Although the administrative judge implicitly found that the appellant exhausted 

his administrative remedies before OSC, ID at 4, nowhere in his original 
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disclosure or in his OSC complaint did the appellant claim that he disclosed a 

violation of OSHA regulations, see IAF, Tab 4 at 8-14, Tab 11 at 80-81. Because 

he did not claim before OSC that he disclosed a violation of OSHA regulations, 

he has not exhausted his administrative remedies regarding that disclosure and the 

Board lacks jurisdiction to consider it. See Boechler v. Department of the 

Interior, 109 M.S.P.R. 638, ¶ 12 (2008) (where the record showed that the 

appellant raised to OSC a disclosure he made to the agency’s Inspector General 

but did not raise to OSC the remaining disclosures he raised in his appeal, the 

remaining disclosures were beyond the scope of the Board’s review), aff’d, 328 F.

App’x (Fed. Cir. 2009). Accordingly, we VACATE the administrative judge’s 

finding concerning the merits of the appellant’s claim concerning the alleged 

violation of OSHA regulations, and DISMISS that claim for lack of jurisdiction.

The appellant’s disclosure concerning alleged violations of state criminal law was 

not protected.

¶7 The appellant asserted in his original disclosure and restated in his hearing 

testimony that he believes that particular agency officials intentionally exposed 

him to paint fumes because they know he has asthma and they intended to harm 

him, and that the painting episode was actually an attempted poisoning in 

violation of California Penal Code § 375. See IAF, Tab 11 at 80-81. The 

appellant testified that, aside from a security guard in the main lobby, there was 

no one but him in the entire 8-floor building on October 9, 2012, a Tuesday. See

Hearing Compact Disc (testimony of the appellant). The appellant then concludes 

that the agency must have warned and evacuated everyone else to ensure that only 

he was exposed to allegedly poisonous fumes and, thus, the agency intentionally 

tried to poison him.

¶8 There is no evidence that corroborates the appellant’s claim that he was 

alone that day and the administrative judge found that his assertions that the 

building was empty and the agency intentionally attempted to poison him was 

inherently improbable and not credible. ID at 7. Aside from asserting that the 
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administrative judge’s finding is incorrect, the appellant offers no reason on 

review for disturbing that finding. We agree with the administrative judge that

the appellant has not shown by preponderant evidence that his apparent belief that 

the agency’s actions constituted an attempted poisoning in violation of California 

law was reasonable. Thus, the administrative judge correctly found that the 

appellant did not prove that this disclosure was protected. 

The appellant’s disclosure concerning an alleged substantial and specific danger 

to public health and safety was not protected.

¶9 Disclosures regarding danger to the public health or safety must be both 

substantial and specific to be protected. Miller, 111 M.S.P.R. 312, ¶ 6. A 

disclosure of a speculative danger does not meet this test. Id. Factors to be 

considered in determining whether a disclosed danger is sufficiently substantial 

and specific to be protected include whether a substantial, specific harm was 

identified and whether the evidence supported a finding that the harm had already 

been realized or was likely to result in the reasonably foreseeable future. 

Chambers v. Department of the Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010). 

¶10 The appellant asserts that paint fumes are dangerous, and surely they 

sometimes are, depending on the nature of the exposure and the sensitivities of 

the people exposed. However, the appellant merely stated that “Paint fumes are 

known to most people to be harmful” and introduced no evidence to corroborate 

his assertion that the danger posed by an occasional short-term exposure to paint 

fumes is substantial and specific. PFR File, Tab 2 at 9.

¶11 In Chambers, the Federal Circuit found that the appellant disclosed a 

substantial and specific danger to public health or safety when she disclosed that 

a reduction in the number of police officers available resulted in more traffic 

accidents because the risk was specific, i.e., an increase in traffic accidents, and 

substantial rather than speculative because the risk had already occurred. 

Chambers, 602 F.3d at 1379. Similarly, in Aquino v. Department of Homeland 

Security, 121 M.S.P.R. 35 (2014) and Miller, the appellants disclosed that 
7

changes in airport screening and crowd management procedures led to a greater 

risk of a breach of security. The Board found that these disclosures were 

substantial and specific because the consequences of the risks identified in the 

disclosures could result in devastating and obvious harm. Aquino, 121 M.S.P.R. 

35, ¶¶ 14-17; Miller, 111 M.S.P.R. 212, ¶¶ 15-19. Here, however, the appellant 

has at best identified a potential future danger to public health and safety that has 

not been shown to be substantial and that occurs only occasionally, making the 

risk of exposure to the alleged danger relatively unlikely. Therefore, it is not 

protected.

The appellant’s motion for leave to submit an additional pleading after the record 

closed on review is denied.

¶12 After the record closed on review, the appellant filed a motion for leave to 

file an additional pleading. PFR File, Tab 8. In his motion, he asserted that the 

agency had recently exposed him to paint fumes again and that this constitutes 

new and material evidence of the agency’s ongoing reprisal. Id. Because the 

appellant’s new evidence, as described in his proffer, does not relate to the issue 

of reasonable belief, it is not relevant to the outcome of his petition for review. 

Therefore, we DENY the appellant’s motion.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision.

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 
8

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 

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 
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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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board