                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROLANDO R. JIMENEZ,                             DOCKET NUMBER
                   Appellant,                        DC-3443-14-0868-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 19, 2015
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Rolando R. Jimenez, Silver Spring, Maryland, pro se.

           Charles F. Smith, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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
     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, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        The appellant, an Immigration Officer, filed an appeal in which he alleged
     that the agency had failed to pay him for 87.5 hours of overtime to which he
     claimed entitlement. He asserted that the agency’s action was in violation of the
     Fair Labor Standards Act (FLSA) and was due to various prohibited personnel
     practices committed by the agency, notably, discrimination based on race and
     national origin. Initial Appeal File (IAF), Tab 1 at 2. He also alleged that, in
     retaliation for having filed numerous informal and formal equal employment
     opportunity (EEO) complaints, he was not selected for assignment as a Duty
     Officer, and was not permitted to apply for a detail to a union steward position.
     Id. He requested a hearing. Id. at 1.
¶3        The agency moved that the appeal be dismissed for lack of jurisdiction on
     the basis that the appellant had not alleged that he suffered an action appealable
     to the Board, and that, in the absence of such an action, the Board could not
     consider his claim that the agency committed prohibited personnel practices. Id.,
     Tab 4 at 4-5, 12. The agency argued that, to the extent the appellant’s claims
     could be broadly construed as allegations of retaliation for whistleblowing, he
     had not shown that he exhausted his remedy before OSC.            Id. at 8-9.   The
                                                                                            3

     administrative judge ordered the appellant to show cause why his appeal should
     not be dismissed for lack of jurisdiction.        Id., Tab 5.    In responding to the
     agency’s motion to dismiss, the appellant described the numerous EEO
     complaints he has filed, as well as a Board appeal which, he suggested, was
     “pending.” 2 Id. at 2-4. The appellant further claimed that in February 2014, he
     filed a “Complaint of Possible Prohibited Personnel Practice or Other Prohibited
     Activity,” which OSC acknowledged and on July 29, 2014, an addendum to the
     complaint. Id., Tab 6 at 4, 28, 29, 30-33. In the addendum, he set forth the same
     three claims he did in the Board appeal, id. at 31-32, and he submitted a number
     of documents bearing on the merits of those claims, id. at 37-44.
¶4         In an initial decision based on the written record, the administrative judge
     dismissed the appeal for lack of jurisdiction. Id., Tab 8, Initial Decision (ID)
     at 2, 8. He found that the appellant had cited no authority that would allow the
     Board to address decisions on the three matters he raised or otherwise identified
     any action appealable to the Board. ID at 4-5.
¶5         In his petition for review, the appellant essentially repeats the same claims
     he raised below. Petition for Review (PFR) File, Tab 1. A substantial portion of
     his petition is virtually identical to his response to the agency’s motion to
     dismiss. Compare id. at 5, 8-27, and IAF, Tab 6 at 5, 9-25. In this regard, his
     petition lacks sufficient specificity to enable the Board to ascertain whether there
     is a serious evidentiary challenge to the initial decision, justifying a complete


     2
       In fact, the same administrative judge had already issued a decision in the appellant’s
     appeal. Jimenez v. Department of Homeland Security, MSPB Docket No. DC-3443-14-
     0504-I-1, Initial Decision (May 6, 2014). Therein, the administrative judge dismissed
     the appeal for lack of jurisdiction, finding that the appellant had not asserted that he
     was subjected to an action over which the Board has jurisdiction, and had not raised any
     other facts that would bring the actions he identified (nonselections, withdrawal of an
     application, failure to be assigned to a detail, and denial of waiver for access to
     classified information) within the Board’s jurisdiction. Initial Decision at 2-5. That
     decision became the Board’s final decision on June 10, 2014, when neither party filed a
     petition for review.
                                                                                        4

     review of the record. See Tines v. Department of the Air Force, 56 M.S.P.R. 90,
     92 (1992).
¶6         Nonetheless, we have reviewed the record and discern no error in the
     administrative judge’s findings or in his dismissal of the appeal for lack of
     jurisdiction.    Neither failure to pay overtime nor nonselection for a particular
     assignment or for a detail is a matter appealable to the Board.            5 U.S.C.
     § 7512(4); 5 C.F.R. § 752.402; Pridgen v. Office of Management and Budget,
     117 M.S.P.R. 665, ¶ 6 (2012). In the absence of an appealable action, the Board
     lacks jurisdiction to consider the appellant’s claims of prohibited personnel
     practices.      Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d,
     681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶7         We have considered the propriety of the administrative judge’s finding that,
     to the extent that the appellant may have raised a claim of retaliation for protected
     whistleblowing, he failed to show that he exhausted his remedy before OSC and
     therefore did not establish the Board’s jurisdiction.     The administrative judge
     stated that, once the appellant receives a letter from OSC granting him the right to
     file an IRA appeal with the Board, he may do so. ID at 4 n.4. However, if the
     pleading the appellant claims he filed with OSC in February 2014, was a request
     for corrective action, he would have been able to file an IRA appeal with the
     Board after 120 days, if OSC had not notified him that it would seek corrective
     action on his behalf. See 5 C.F.R. § 1209.5(a)(2).
¶8         As noted, the appellant did not submit a copy of his filing with OSC. He
     did, however, submit a copy of OSC’s March 14, 2014 acknowledgment of his
     complaint. IAF, Tab 6 at 28. Therein OSC explains the difference between filing
     a complaint that alleges reprisal for whistleblowing and filing a complaint that
     discloses wrongdoing in a federal agency under 5 U.S.C. § 1213 involving a
     violation of law, rule, or regulation, gross mismanagement, a gross waste of
     funds, an abuse of authority, or a substantial and specific danger to public health
     and safety. Id. The appellant also submitted a copy of OSC’s June 12, 2014
                                                                                   5

90-day letter, advising him of the status of his complaint pursuant to 5 U.S.C.
§ 1214(a)(1)(C)(i). Id. at 29. That acknowledgment does not refer to corrective
action or a claim under 5 U.S.C. § 2302(b)(8). Id. Further, the appellant does
not, in his July 29, 2014 addendum to his complaint, allege whistleblower reprisal
but only a violation of FLSA, discrimination, and retaliation for protected EEO
activity. Id. at 30-33. As such, we find that the appellant has not exhausted his
administrative remedy because he did not allege whistleblower reprisal before
OSC concerning the potential personnel actions he raises in this appeal, thereby
giving OSC a sufficient basis to pursue an investigation that might have led to
corrective   action,   see   Clemente   v.   Department     of   Homeland   Security,
101 M.S.P.R. 519, ¶ 13 (2006), and we agree with the administrative judge that
this appeal must be dismissed for lack of jurisdiction. 3

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS 4
      You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
      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).

3
   The appellant has submitted attachments to his petition that include documents
relating to the merits of the three matters about which he complains, PFR File, Tab 1
at 44-45, and documents relating to his EEO complaints, id. at 46-51. The documents
contained in these attachments are neither new nor material and we therefore have not
considered them. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see
also Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
4
  The initial decision did not afford the appellant notice of appeal rights under the
Whistleb lower Protection Enhancement Act of 2012. We have provided notice of such
appeal rights herein.
                                                                                        6

         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 at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
                                                                           7

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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
