              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

                                      05-3158

                              GLORIA M. ALMARAZ,

                                                        Petitioner,

                                         v.

                   MERIT SYSTEMS PROTECTION BOARD,

                                                        Respondent.

                        ___________________________

                        DECIDED: October 6, 2005
                        ___________________________

Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL,
Circuit Judge.

RADER, Circuit Judge.

       The Merit Systems Protection Board (Board) dismissed, for lack of

jurisdiction, Ms. Gloria M. Almaraz’s appeal of a Department of Labor decision

denying her extended leave without pay (LWOP). Because Ms. Almaraz has not

shown that the Board has jurisdiction, this court affirms.

                                    Background

       Ms. Almaraz is a GS-12 Senior Compliance Officer at the Department of

Labor’s Office of Federal Contract Compliance, in San Antonio, Texas. Almaraz

v. Dep’t. of Labor, Docket Number DC-3443-04-0193-I-1, slip op. at 1 (M.S.P.B.

Apr. 20, 2004) (Initial Decision). On May 10, 2002, Ms. Almaraz applied for eight
weeks of extended leave (seven weeks LWOP and one week of annual leave),

but was granted only four (three weeks of LWOP and one week of annual leave).

Ms. Almaraz filed a formal equal employment opportunity (EEO) complaint

against the Agency, citing a recent grant of six months of LWOP to a male

coworker as evidence of disparate treatment. Ms. Almaraz also alleged that she

was given a marginal performance appraisal after filing a previous gender

disparate treatment complaint.

       The Board dismissed Ms. Almaraz’s case without reaching the merits.

Rather, the administrative judge concluded that the “agency actions” asserted in

her complaint did not fall within the limited class of actions appealable to the

Board. Almaraz v. Dep’t of Labor, Docket Number DC-3443-04-0193-I-1, slip op.

at 2, (M.S.P.B. Jan. 9, 2004) (Acknowledgment Order). The administrative judge

thus required Ms. Almaraz to submit allegations of jurisdiction. Id. Ms. Almaraz’s

response alleged that the Board had jurisdiction under 5 U.S.C. §§ 1204(a)(4)

and (f), because she was seeking review of an Office of Personnel Management

(OPM) regulation. Ms. Almaraz did not specify the particular OPM regulation

under challenge, but asserted that review of the Agency’s implementation of “the

OPM regulation” would demonstrate the Agency’s gender-based disparate-

treatment in violation of 5 U.S.C. §§ 2302(b)(1)-(11).

       The administrative judge held that the Board was without jurisdiction. See

Initial Decision, slip op. at 3-4. The full Board denied Ms. Almaraz’s petition for

review. Almaraz v. Dep’t of Labor, Docket Number DC-3443-04-0193-I-1, slip




05-3158                                  2
op. at 2 (M.S.P.B. Mar. 14, 2005). Ms. Almaraz then filed the present appeal

under 28 U.S.C. § 1295(a)(9).

                                   Discussion

      This court affirms a decision of the Board unless it is arbitrary, capricious,

an abuse of discretion, not in accordance with law, or unsupported by substantial

evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt.,

243 F.3d 1375 (Fed. Cir. 2001); Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410

(Fed. Cir. 1995). Whether the Board has jurisdiction over an appeal is a question

of law, which this court reviews without deference. Forest, 47 F.3d at 410.

      Ms. Almaraz did not invoke the Board’s original jurisdiction to review

“invalid” OPM regulations under section 1204 of title 5. See Prewitt v. Merit Sys.

Prot. Bd., 133 F.3d 885, 886-87 (Fed. Cir. 1998) (“The Board has original

jurisdiction to review rules and regulations issued by the Office of Personnel

Management (OPM).”) (citing 5 U.S.C. § 1204(f)(1)) (other citations omitted).

Specifically, “the Board is authorized to declare OPM rules and regulations

invalid if their implementation requires agencies to commit prohibited personnel

practices as defined in 5 U.S.C. § 2302(b).”       Id. at 887 (emphasis added).

However, in this case, Ms. Almaraz has not specified an allegedly invalid OPM

regulation. Instead, Ms. Almaraz has identified prohibited personnel practices

(i.e., discriminatorily granting LWOP and issuing a marginal performance

evaluation in retaliation for filing a complaint) arising from the Agency’s

application of OPM regulations and policies to this particular situation.       Ms.

Almaraz’s allegations do not “describe how any OPM regulations require[d]




05-3158                                 3
agency employees to commit those prohibited personnel practices” in this case.

Id. (citing 5 C.F.R. §§ 1203.1(a), 1203.11(b)(1)) (other citations omitted)

(emphasis added). Accordingly, Ms. Almaraz has failed to show that the Board

has original jurisdiction under 5 U.S.C. § 1204.

       Ms. Almaraz also did not invoke the Board’s appellate jurisdiction over

prohibited Agency actions. Rather, Ms. Almaraz cites two “Agency actions” that

are not subject to the Board’s jurisdiction (i.e., denial of LWOP and issuance of

performance     appraisals).      Neither    “action,”   however,   is   listed      in

5 U.S.C. § 7512(1)-(5) or 5 C.F.R. § 1201.3(a)–(c) as an appealable adverse

action within the Board’s appellate jurisdiction.    Thus, even if these “actions”

involve a claim of discrimination or reprisal, they are appealable only if connected

to an otherwise appealable action. See Cruz v. Dep’t of Navy, 934 F.2d 1240,

1245-46 (Fed. Cir. 1991) (en banc) (holding that the mere assertion of

discrimination alone does not provide a basis for Board jurisdiction because

discriminatory acts in themselves are not agency actions appealable to the

Board). Because Ms. Almaraz does not cite any other actions in her complaint,

she has not provided any evidence of an appealable agency action.

       Having reviewed Ms. Almaraz’s asserted grounds of jurisdiction and

finding none of them sufficient, this court agrees with the Board. As such, the

Board’s dismissal of Ms. Almaraz’s appeal due to lack of jurisdiction is affirmed.




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