Almaraz v. Merit Systems Protection Board , 151 F. App'x 955 ( 2005 )

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
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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]
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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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