                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                04-3327, -3338, -3339


                           CARLOS A. VELTRUSKI-HECK,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.


                           __________________________

                           DECIDED: June 10, 2005
                           __________________________

Before LOURIE, LINN, and PROST, Circuit Judges.

PER CURIAM.

      Carlos A. Veltruski-Heck petitions for review of three final decisions of the Merit

Systems Protection Board (“MSPB”). In each decision, the MSPB affirmed the initial

decision of an administrative judge dismissing Mr. Veltruski-Heck’s individual-right-of-

action appeals for lack of jurisdiction.   See Veltruski-Heck v. Dep’t of Homeland

Security, No. SF1221030479-W-1 (M.S.P.B. July 9, 2003); Veltruski-Heck v. Social

Security Admin., No. SF1221030448-W-1 (M.S.P.B. June 18, 2003); Veltruski-Heck v.

Dep’t of Justice, SF1221030444-W-1 (M.S.P.B. June 18, 2003). We affirm.
                                    BACKGROUND

      Mr. Veltruski-Heck appears to allege that various federal agencies have denied

him employment opportunities as reprisals for certain whistleblowing activities in

violation of 5 U.S.C. § 2302(b)(8). For example, Mr. Veltruski-Heck, an alien arrested

by the Immigration and Naturalization Service in June 2002, states in his informal brief

that the “essence of [his] cases” is that his “employers retaliated against [him] for

demanding sponsorship” to become a United States citizen. Elsewhere he states that “I

just want [the federal agencies] to give me a job to improve the way [they] conduct

business and stop the retaliatory acts against me to cover up [their] ineptitude.” He also

complains that “unscrupulous employers are not being prosecuted as requested by

Veltruski[-Heck;] that is why Veltruski[-Heck] is applying for a job with all the federal

agencies.”

      In each of the cases, the administrative judge, without holding a hearing,

concluded that Mr. Veltruski-Heck failed to make non-frivolous allegations sufficient to

establish jurisdiction in front of the MSPB. In Mr. Veltruski-Heck’s case against the

Department of Homeland Security (“DHS”), the administrative judge determined that Mr.

Veltruski-Heck failed to make non-frivolous allegations of the type of wrongdoing that

can reasonably be attributed to the federal government, as opposed to a private

employer, such that its disclosure would qualify for protection. The administrative judge

also found that Mr. Veltruski-Heck failed to make a non-frivolous allegation that he

exhausted his remedies concerning his alleged application for employment with the

DHS. In Mr. Veltruski-Heck’s case against the Social Security Administration (“SSA”),

the administrative judge determined that Mr. Veltruski-Heck failed to make non-frivolous




04-3327, -3338, -3339                       2
allegations or provide evidence that he was either an employee or an applicant for

employment with the SSA. In Mr. Veltruski-Heck’s case against the Department of

Justice (“DOJ”), the administrative judge similarly determined that Mr. Veltruski-Heck

failed to make non-frivolous allegations or provide evidence that he was either an

employee or an applicant for employment with the DOJ.

       Mr. Veltruski-Heck petitioned the MSPB to review the administrative judge’s

decisions.   In each case, the MSPB concluded that there was no new, previously

unavailable evidence and that the administrative judge made no error in law or

regulation that affected the outcome. The MSPB therefore denied each petition making

each initial decision final.

       Mr. Veltruski-Heck petitions for review of each final decision.         We have

jurisdiction under 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

       We review decisions of the MSPB to ensure they are not arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or unsupported by

substantial evidence. 5 U.S.C. § 7703(c) (2000).

       In each case, the administrative judge determined that jurisdiction was lacking at

least in part because Mr. Veltruski-Heck failed to make non-frivolous allegations or

provide evidence either (1) that he was an employee, former employee, or applicant for

employment of one of the named federal agencies; or (2) that he exhausted his

remedies concerning alleged reprisals for whistleblowing activities even if he did make

non-frivolous allegations or provide evidence that he was an employee, former




04-3327, -3338, -3339                        3
employee, or applicant for employment of one of the named federal agencies. The

administrative judge was correct to require that Mr. Veltruski-Heck satisfy both of these

jurisdictional requirements. See 5 U.S.C. § 1221(a) (granting “an employee, former

employee, or applicant for employment” the right to seek corrective action from the

MSPB in certain reprisal cases); 5 U.S.C. § 2302(b)(8) (prohibiting reprisals against

“any employee or applicant for employment”); 5 U.S.C. § 1214(a)(3) (requiring

exhaustion of remedies in section 2302(b)(8) cases). Thus, we conclude that the three

decisions of the MSPB were not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.

      We also conclude that, in each case, the administrative judge followed

procedures required by applicable laws, rules, and regulation.        In particular, the

administrative judge was not required to hold hearings absent non-frivolous allegations.

See Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002) (stating that

“an evidentiary hearing is unnecessary for the conferring of jurisdiction, because

whether allegations are ‘non-frivolous’ is determined by the written record”).        As

discussed below, we conclude that the administrative judge was correct that Mr.

Veltruski-Heck failed to make non-frivolous allegations. Thus, the administrative judge’s

decision not to hold hearings was not improper.

      We conclude that substantial evidence supports the administrative judge’s

conclusions regarding the frivolousness of Mr. Veltruski-Heck’s allegations and the lack

of evidence supporting the allegations. In this regard, Mr. Veltruski-Heck appears to

challenge the administrative judge’s determination that he failed to provide evidence

that he was an employee of the SSA. Mr. Veltruski-Heck states that he “worked for 6




04-3327, -3338, -3339                      4
different offices of SSA” and that he was “directly paid by SSA.” Mr. Veltruski-Heck,

however, fails to point to any evidence in the record supporting these assertions.

Furthermore, even if supported by evidence in the record, these facts alone would not

provide sufficient grounds for us to overturn the conclusion of the administrative judge

that Mr. Veltruski-Heck was only a contractor, not an employee, of the SSA since

substantial evidence supports that conclusion.

      Mr. Veltruski-Heck also appears to challenge the administrative judge’s

determination that he failed to provide evidence that he applied for various jobs with the

federal government. However, Mr. Veltruski-Heck merely states that he “applied for a

job following MSPB guidelines and was denied a job” without citation to supporting

evidence in the record. Without such evidence, we cannot say that substantial evidence

does not support the administrative judge’s conclusions. Furthermore, in front of the

MSPB, Mr. Veltruski-Heck argued that to be considered an applicant he was not

required to submit an application on a particular form and that any type of written

request or even verbal requests for federal employment should be sufficient. We agree

with the administrative judge’s rejection of these contentions: to be considered an

application for federal employment, the request for employment should be “solicited by

the government and received and processed through normal hiring procedures.”

      We have considered other arguments presented by Mr. Veltruski-Heck and

conclude that they do not require reversal of any of the three MSPB decisions.

                                     CONCLUSION

      For the foregoing reasons, we affirm each of the three decisions.




04-3327, -3338, -3339                       5
