Montanez v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: March 5, 2025
• Docket: 24-1938
• Status: Unpublished

Opinion

Case: 24-1938 Document: 28 Page: 1 Filed: 03/05/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

DELIRIS MONTANEZ, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1938 ______________________

Petition for review of the Merit Systems Protection Board in No. DA-0752-23-0115-I-1. ______________________

Decided: March 5, 2025 ______________________

DELIRIS MONTANEZ, El Paso, TX, pro se.

CONSTANCE E. TRAVANTY, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________ Case: 24-1938 Document: 28 Page: 2 Filed: 03/05/2025

Before MOORE, Chief Judge, CHEN, Circuit Judge, and BARNETT, Judge. 1 PER CURIAM. Deliris Montanez petitions for review of a final order of the Merit Systems Protection Board (Board) dismissing her appeal for lack of jurisdiction. For the following reasons, we affirm. BACKGROUND Ms. Montanez served as a Lieutenant Colonel in the United States Army Reserves. Appx. 35. 2 On April 4, 2019, a memorandum signed by the Secretary of the Army removed Ms. Montanez from the promotion list for Colonel and directed the Commanding General of the United States Army Reserve Command to initiate elimination pro- ceedings. Id. Ms. Montanez was involuntarily separated from military service effective July 18, 2019. Id. On January 2, 2023, Ms. Montanez filed an appeal to the Board challenging the Army’s actions and alleging her separation from uniformed service was in retaliation for her purported 2016 whistleblowing activity. Id.; Appx. 11. The administrative judge issued a Show Cause Order re- quiring Ms. Montanez to file evidence and argument estab- lishing jurisdiction over her appeal and explaining the Board has jurisdiction over only certain actions taken against civilian employees and lacks jurisdiction over ac- tions taken against members of the Armed Forces. Appx. 56–59. In response, Ms. Montanez reiterated her allega- tions that the Army’s actions constituted retaliation for her alleged protected whistleblowing activity. Appx. 29; Appx.

1 Honorable Mark A. Barnett, Chief Judge, United States Court of International Trade, sitting by designation. 2 “Appx.” refers to the appendix attached to Re- spondent’s Informal Brief. Case: 24-1938 Document: 28 Page: 3 Filed: 03/05/2025

MONTANEZ v. MSPB 3

47–48. The Army moved to dismiss the appeal because, among other reasons, Ms. Montanez was an officer in the Army, not a civilian employee pursuant to 5 U.S.C. § 7511(a). Appx. 38. The administrative judge issued an initial decision dis- missing the appeal for lack of jurisdiction, without holding a hearing, because Ms. Montanez failed to allege any ad- verse action taken against her in a federal civil position. Appx. 11–12. The administrative judge also found that, to the extent Ms. Montanez was attempting to bring an Indi- vidual Right of Action (IRA) appeal for whistleblower retal- iation, the Board lacked jurisdiction over whistleblower claims of individuals serving in uniformed service posi- tions. Appx. 13. Ms. Montanez filed an administrative pe- tition for review with the Board. Appx. 25. The Board issued a final order denying Ms. Montanez’s petition for re- view and affirming the initial decision dismissing her ap- peal for lack of jurisdiction. Appx. 1–9. Ms. Montanez petitions this court for review. DISCUSSION I. Appellate Jurisdiction We have jurisdiction over “an appeal from a final order or final decision of the [Board].” 28 U.S.C. § 1295(a)(9); see also 5 U.S.C. § 7703(b)(1)(A) (“[A] petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Cir- cuit . . . .”). We do not have jurisdiction over “mixed” cases where “a federal employee (1) complains of having suffered a serious adverse personnel action appealable to the [Board] and (2) attributes the adverse action, in whole or in part, to bias prohibited by federal antidiscrimination laws.” Harris v. SEC, 972 F.3d 1307, 1317 (Fed. Cir. 2020) (citing 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.151). When the Board dismisses a mixed case, the proper review forum is federal district court, not Case: 24-1938 Document: 28 Page: 4 Filed: 03/05/2025

the Federal Circuit. Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 430–31 (2017). Ms. Montanez alleged the Army’s actions were based on prohibited discrimination. Appx. 29; Appx. 47–48. This is not a mixed case, however, because as discussed in detail below, Ms. Montanez did not allege any adverse action ap- pealable to the Board. Therefore, we have jurisdiction to review the Board’s dismissal. II. Board Jurisdiction Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which we review de novo. Mou- ton-Miller v. Merit Sys. Prot. Bd., 985 F.3d 864, 868 (Fed. Cir. 2021). We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or oth- erwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). As the appellant before the Board, Ms. Montanez has the burden of establishing the Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). If an individual makes non-frivolous allegations of jurisdiction, then she is entitled to a hearing at which she must prove jurisdiction by a preponderance of the evidence. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1330 (Fed. Cir. 2006) (en banc). Non-frivolous allegations are allegations that, if proven, can establish the Board’s jurisdiction. Id. To es- tablish the Board has jurisdiction, an individual must, among other things, show she satisfies one of the defini- tions of “employee” listed under 5 U.S.C. § 7511(a)(1) or, for an IRA appeal, under 5 U.S.C. § 2105. See 5 U.S.C. §§ 1221(a), 7513(d). The Board correctly concluded Ms. Montanez was not an “employee” under 5 U.S.C. § 7511(a)(1). Rather, Ms. Montanez sought to challenge actions taken by the Army Case: 24-1938 Document: 28 Page: 5 Filed: 03/05/2025

MONTANEZ v. MSPB 5

against her in her capacity as a member of the uniformed services, actions over which the Board lacks jurisdiction. See, e.g., Jeffries v. Dep’t of the Air Force, 999 F.2d 529, 530 (Fed. Cir. 1993) (“The cancellation of active reserve status is a uniquely military decision and is subject to review only within the military command.”). The Board also correctly concluded it lacks jurisdiction over potential whistleblower retaliation claims brought by individuals serving in uniformed service positions. Appx. 2–3; see also 5 U.S.C. § 2105(a)(1) (defining employee for purposes of bringing IRA appeal as an individual “ap- pointed in the civil service”); 5 U.S.C. § 2101(1) (“[T]he ‘civil service’ consists of all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed ser- vices . . . .” (emphasis added)). Ms. Montanez argues her earning statements reference her as an “employee” and the government cannot choose when to designate an individual as an employee and when not to. Petitioner’s Informal Br. 2. The characterization of an individual as an “employee” on earning statements, however, does not transform Ms. Montanez into an “em- ployee” under 5 U.S.C. § 7511(a)(1) or 5 U.S.C. § 2105 for purposes of Board jurisdiction. Ms. Montanez also argues the administrative judge re- fused to conduct a hearing, which is contrary to the Board’s regulations and the Constitution. Petitioner’s Informal Br. 2–3. We see no error in the Board’s denial of a hearing. As explained above, Ms. Montanez is only entitled to a hearing if she makes non-frivolous allegations of jurisdiction. Gar- cia, 437 F.3d at 1330. Ms. Montanez’s allegations are not sufficient to warrant a hearing because, even if proven, they fail to establish the Board has jurisdiction, as she can- not show she satisfies any definition of “employee” listed under 5 U.S.C. § 7511(a)(1) or 5 U.S.C. § 2105. Case: 24-1938 Document: 28 Page: 6 Filed: 03/05/2025

Ms. Montanez requests we “transfer this case to Fed- eral District Court.” Petitioner’s Informal Br. 3. We de- cline to transfer this case because transfer is not in the interest of justice under 28 U.S.C. § 1631. As explained, this Court, not a federal district court, has jurisdiction over Ms. Montanez’s petition for review. CONCLUSION We have considered Ms. Montanez’s remaining argu- ments and find them unpersuasive. For the reasons stated above, the Board lacks jurisdiction over this case. Accord- ingly, we affirm. AFFIRMED COSTS No costs.