                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSE E. ROSARIO-FABREGAS,                       DOCKET NUMBER
                    Appellant,                       NY-3443-16-0012-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: July 1, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jose E. Rosario-Fabregas, San Juan, Puerto Rico, pro se.

           Elizabeth Mosely and Elizabeth Vavrica, Jacksonville, Florida, 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
     dismissed this appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                       BACKGROUND
¶2           In this appeal, the appellant, a GS-12 Biologist with the agency’s Corps of
     Engineers, challenged the agency’s decision not to create a GS-13 biologist team
     leader position in its Puerto Rico regulatory field office.     Initial Appeal File
     (IAF), Tab 1 at 4.    He argued that the agency’s decision to implement such a
     position in its Florida field offices, but not in its Puerto Rico field office, was a
     prohibited personnel practice that discriminated against him and other Hispanic
     employees by disparate impact. Id. at 4-5. He asserted that he filed a complaint
     with the Office of Special Counsel (OSC) and that OSC notified him of its intent
     to dismiss the complaint, arguing that OSC’s failure to act within 120 days
     provided his right to file this appeal. Id. at 4. He did not request a hearing. Id.
     at 2.
¶3           The administrative judge issued an acknowledgment order in which she
     notified the appellant of his burden to establish jurisdiction over the appeal. IAF,
     Tab 2.    The agency responded, arguing that the Board may not adjudicate the
     appellant’s untimely discrimination claims in the absence of an otherwise
     appealable action.     IAF, Tab 8 at 8-9.    The agency further argued that the
                                                                                       3

     appellant already had made a binding election to pursue his discrimination claim
     through the formal equal employment opportunity (EEO) complaint process. Id.
     at 9.   The agency also contended that because the appellant brought his OSC
     complaint under 5 U.S.C. § 2302(b)(12), instead of under section 2302(b)(8) or
     (b)(9), and failed to assert a whistleblower retaliation claim, i.e., that he made a
     protected disclosure that was a contributing factor in the agency’s decision to take
     or fail to take a personnel action, the Board lacked jurisdiction over the action as
     an individual right of action (IRA) appeal. Id. at 11-12. The appellant replied in
     opposition to the agency’s response, and the agency filed a motion to dismiss the
     appeal for lack of jurisdiction. IAF, Tabs 10-11.
¶4           The administrative judge held a telephone conference in which she
     explained to the appellant that the record did not reflect that the agency subjected
     him to an appealable adverse action, and that neither his discrimination nor his
     prohibited personnel practice claims provided an independent source of Board
     jurisdiction over his appeal. IAF, Tab 12. The appellant clarified that he was not
     claiming whistleblower status and that he was not attempting to file an IRA
     appeal. Id. The administrative judge set a date for the record to close on the
     jurisdictional issues and the parties each responded. IAF, Tabs 12-19. In his
     response, the appellant contended that the agency failed to implement the team
     leader positions in Puerto Rico in retaliation for an administrative grievance he
     filed in 2004-05. IAF, Tab 15 at 14-16.
¶5           The administrative judge dismissed the appeal for lack of jurisdiction
     finding that, in the absence of an otherwise appealable action, the Board lacked
     jurisdiction over the appellant’s discrimination and prohibited personnel practice
     claims. IAF, Tab 20, Initial Decision (ID) at 3. She further found that the Board
     lacked jurisdiction over the appellant’s allegation that the agency violated
     5 U.S.C. § 5107 concerning the classification of positions and that he failed to
     plead facts sufficient to invoke the Board’s employment practices jurisdiction
     under 5 C.F.R. § 300.104(a). ID at 3-4. Regarding the appellant’s allegations of
                                                                                       4

     reprisal, the administrative judge noted the appellant’s acknowledgment at the
     prehearing conference that he did not raise the issue of whistleblowing reprisal in
     his OSC complaint. Therefore, the administrative judge found that the appellant
     failed to exhaust his administrative remedies before OSC, precluding Board
     jurisdiction over his whistleblowing claim even if he had established that he made
     a protected disclosure. ID at 4-5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6         In his timely filed petition for review, the appellant reiterates his argument
     that the agency denied him due process and committed prohibited personnel
     practices by implementing certain GS-13 positions in Florida, but not in
     Puerto Rico. Petition for Review (PFR) File, Tab 1 at 4-5, 9-11. He also argues
     that the administrative judge denied him discovery. Id. at 9. He further argues
     that the administrative judge failed to give him notice of the jurisdictional
     elements and burdens and that the agency’s responses likewise failed to apprise
     him of what he must show to establish jurisdiction over his employment practice
     and whistleblowing claims.       Id. at 5-8, 12-13.      Regarding his purported
     whistleblowing claim, the appellant argues on review that the administrative
     judge should have interpreted his appeal as challenging a prohibited “personnel
     practice that granted preference or advantage not authorized by law, rule, or
     regulation to any employee or applicant for employment (including defining the
     scope or manner of competition or the requirement for any position) for the
     purpose of improving or injuring the prospects of any particular person for
     employment” under 5 U.S.C. § 2302(b)(6).        PFR File, Tab 1 at 6-7 (emphasis
     in original).
¶7         Nevertheless, the appellant concedes that he failed to include any
     allegations of reprisal in the OSC complaint at issue here, essentially arguing that
     it would have been futile because OSC just would have dismissed it as it had in
     his IRA appeal, Rosario-Fabregas v. Department of the Army, MSPB Docket
                                                                                               5

     No. NY-1221-11-0253-B-1, which is currently pending before the Board’s field
     office. PFR File, Tab 1 at 15. He asserts that it should therefore be deemed “in
     the interest of justice” that he established that he exhausted his whistleblower
     reprisal claim at OSC. Id. The agency responds in opposition and the appellant
     filed a reply to the agency’s response. PFR File, Tabs 3-4.
¶8         We agree with the administrative judge that, because the appellant failed to
     identify an otherwise appealable action, the Board lacks jurisdiction over his
     discrimination and prohibited personnel practice claims. ID at 3; e.g., Wren v.
     Department of the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited
     personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
     Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). 2                   The
     administrative judge also correctly found that the Board lacks jurisdiction over
     the appellant’s allegations regarding the classification of his position under
     5 U.S.C. § 5107 and that the appellant failed to plead facts sufficient to invoke
     the Board’s jurisdiction over his employment practices claim under 5 C.F.R.
     § 300.104(a). ID at 3-4.
¶9         As noted above, the appellant alleges on review that the administrative
     judge and the agency’s responsive pleadings failed to give him notice of the
     elements    and    burdens     of   establishing    his   employment       practices    and
     whistleblowing claims.       PFR File, Tab 1 at 5-8.         Regarding the appellant’s
     employment practices claim, he is correct that neither the administrative judge’s
     orders, nor the agency’s submissions, put him on notice of the burdens and
     elements of establishing jurisdiction over such a claim.            The initial decision,
     however, set forth the requirements for establishing jurisdiction over an
     employment practices claim, ID at 3-4, and therefore the appellant has received

     2
       In OSC’s preliminary closing letter, it identified the appellant’s allegations as possible
     violations of 5 U.S.C. § 2302(b)(1) and (12). IAF, Tab 3 at 12. On review, as noted
     above, the appellant also alleges violations of 5 U.S.C. § 2302(b)(2) and (6). PFR File,
     Tab 1 at 6-7. Nevertheless, none of those three statutory provisions provide an
     independent source of Board jurisdiction. E.g., Wren, 2 M.S.P.R. at 2.
                                                                                      6

      an opportunity to meet his burden in his petition for review, e.g., Orr v.
      Department of the Treasury, 83 M.S.P.R. 117, ¶ 7 (1999).
¶10        As for the appellant’s whistleblowing claims, as noted above, he explicitly
      eschewed whistleblower status, IAF, Tab 10 at 7, and confirmed, according to the
      administrative judge’s prehearing conference summary, that this action was not
      an IRA appeal, IAF, Tab 12 at 2.      In any event, the appellant subsequently
      identified the relevant jurisdictional standard in one of his pleadings below and,
      as noted above, he explicitly concedes on review that he did not raise this issue
      with OSC.     IAF, Tab 15 at 15 n.9; PFR File, Tab 1 at 15.     Additionally, the
      appellant received notice of the elements and burdens of establishing jurisdiction
      over an IRA appeal in the agency’s motion to dismiss. IAF, Tab 11 at 8; see e.g.,
      Jackson v. Department of Veterans Affairs, 95 M.S.P.R. 152, ¶ 14 (2003) (finding
      that the agency’s motion to dismiss put the appellant on notice of what she must
      allege to establish jurisdiction over an IRA appeal), aff’d, 97 F. App’x 297 (Fed.
      Cir. 2004).
¶11        Moreover, the appellant’s allegations in this regard do not provide a basis
      for Board jurisdiction over the appeal.   The appellant asserted below that the
      agency retaliated against him for filing an administrative grievance sometime in
      2004-05 following the agency’s failure to select him for a section chief position.
      IAF, Tab 15 at 15. Even if we were to assume that the appellant, by these claims,
      made a nonfrivolous allegation that he engaged in activity that would now be
      considered protected under 5 U.S.C.§ 2302(b)(9)(A)(i), he cannot bring an IRA
      appeal on that basis concerning events that occurred before the effective date of
      the Whistleblower Protection Enhancement Act (WPEA).            Miller v. Federal
      Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶¶ 13-15 (2014) (holding that
      the portion of the WPEA extending the Board’s jurisdiction to allegations of
      violations of 5 U.S.C.§ 2302(b)(9) is not retroactive), aff’d, 626 F. App’x 261
      (Fed. Cir. 2015).     The events in this appeal occurred well before the
      December 27, 2012 effective date of the WPEA.        Thus, we need not consider
                                                                                      7

      whether the appellant has made out such a claim because the applicable WPEA
      amendments do not apply retroactively. See id.; see also Hooker v. Department
      of Veterans Affairs, 120 M.S.P.R. 629, ¶¶ 11-15 (2014).
¶12        Finally, we address the appellant’s assertion that the administrative judge
      denied him discovery.    PFR File, Tab 1 at 9.    The Board will not reverse an
      administrative judge’s rulings on discovery matters absent an abuse of discretion.
      E.g., Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992),
      aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table).    The appellant filed a pleading
      below titled as his opposition to the agency’s response and discovery, IAF,
      Tab 10, but he did not file a motion to compel discovery in accordance with the
      Board’s regulations, 5 C.F.R. §§ 1201.71-.85, which the administrative judge set
      forth in the acknowledgment order, IAF, Tab 2 at 3. Nevertheless, even if we
      liberally interpret the relevancy of the appellant’s discovery requests, given his
      allegations in this action, nothing that he sought in discovery would have
      provided information reasonably calculated to lead to the discovery of admissible
      evidence. See, e.g., Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,
      ¶¶ 9-10 (2010) (stating that the administrative judge did not abuse his discretion
      in denying a motion for depositions because they would not have provided
      information reasonably calculated to lead to admissible evidence). For example,
      the appellant insists on review that “[t]he agency must explain why these GS-13
      positions and announcements were excluded from Puerto Rico, proving it was for
      business necessity.” PFR File, Tab 1 at 10. However, even if what the appellant
      alleges is true, the record reflects that he has failed to identify any appealable
      action in which such information either would be relevant or reasonably
      calculated to lead to admissible evidence in a Board appeal because the violations
      of 5 U.S.C. § 2302(b)(1), (2), (6), and (12) that he alleged in his appeal are not
      independent sources of Board jurisdiction. E.g., Wren, 2 M.S.P.R. at 2. Thus, the
      appellant has failed to show that the administrative judge abused her discretion
      regarding discovery.
                                                                                  8

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

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 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 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        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.
      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
                                                                                  9

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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
