UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ERVIN M. LUCERO,

Appellant,

v.
DEPARTMENT OF COMMER CE,

Agency. DOCKET NUMBER DE

- 0752

- 17

- 0438

- I

- 1

DATE: May 25, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ervin M. Lucero , Albuquerque, New Mexico, pro se. Kardesha N. Bradley
, Esquire, Washington, D.C., 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 termination appeal for lack of jurisdiction. On pet ition for review, the appellant first addresses the merits of his case, arguing th at he was wrongfully
terminated due to the agency’s misapplication of its policies and procedures.
Petition f or Review File, Tab 1 at 4. He additionally argues that the agency

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

erroneously instructed him that he could file an appeal with the Board on two separate occasions. Id. Final ly , he claims that the Board has jurisdiction over appeals at its discretion and that he relies upon it to hear his appeal “ as other expeditious avenues of recourse are not available. ” Id. Generally, we grant petitions such as this one only in the follow ing 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 administrativ e 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 lega l 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. § 120 1.115 ). 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 de cision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant’s assertion that the Board has “ jurisdiction over any and all appeals at [ its ] discretion” is i ncorrect; rather, the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453 , ¶ 7 (2016). Additionally, the agency’s error in notifying the appellant of a right to appeal does not serve to confer jurisdiction on the Board. Morales v. Social Security Administration
, 108 M.S.P.R. 583 , ¶ 5 (2008). The remainder of the appellant’s arguments pertains to the merits of his claim , which cannot be addressed before resolving the th reshold issue of jurisdiction. Evans v. Department of Veterans Affairs , 119 M.S.P.R. 257 , ¶ 5 (2013).3

¶3 The appellant below alleged retaliation for activities protected by 5 U.S.C. § 2302 (b)(9)(A)( ii) . Initial Appeal File
, Tab 1 at 7, Tab 8 at 4

. T o the extent the appellant may be attempting to invoke the Board’s jurisdiction over an i ndividu al right of action (IRA) appeal, the Board has jurisdiction over such an appeal if the appellant has first exhausted his administrative remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations that (1) he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity
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 pe rsonnel action as defined by 5 U.S.C. § 2302 (a). Salerno v. Department of Interior , 123 M.S.P.R. 230 , ¶ 5 (2016) . T he Board’s jurisdiction over IRA appeals does not extend to cl aims arising under subsection (A )(ii). Mudd v. Department of Veterans Affairs
, 120 M.S.P.R. 365 , ¶ 7 (2013). Moreover, to the extent the appellant’s allegation of retaliation based on prior equal employment opportunity ac tivity is changed by the amendment to 5 U.S.C. § 2302 (b)(9)(C) in the National D efense Authorization Act of 2018, this
amendment does not apply retroactively

. Edwards v. Department of Labor
, 2022 MSPB 9 , ¶¶ 30

- 33

. Further, the appellant has not claimed that he sought
corrective action from OSC. As the administrative judge correctly noted, in the
absence of an o therwise appealable action , an allegation of retali ation under section 2302(b)(9)(A )(ii) cannot independently confer Board jurisdiction.
Wren v. Department of the Army
, 2 M.S.P.R. 1 , 2 (1980).

NOTICE OF APPEAL RIGHTS 2 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

2 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 w hich option is most appropriate in any matter.4

review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summar y 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
li mit 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 11.5

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) J udicial 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 d iscrimination. 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 t he link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discri mination claims only, excluding
all other issues

. 5 U.S.C. § 7702 (b)(1). You must file any such request with the6

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 calend ar 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: 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. 3 The court of appeals must receive your petition for

3 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 on7

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 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
rel evance 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.

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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.8

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:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board