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
04-3327, -3338, -3339
CARLOS A. VELTRUSKI-HECK,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: June 10, 2005 __________________________
Before LOURIE, LINN, and PROST, Circuit Judges.
PER CURIAM.
Carlos A. Veltruski-Heck petitions for review of three final decisions of the Merit
Systems Protection Board (“MSPB”). In each decision, the MSPB affirmed the initial
decision of an administrative judge dismissing Mr. Veltruski-Heck’s individual-right-of-
action appeals for lack of jurisdiction. See Veltruski-Heck v. Dep’t of Homeland
Security, No. SF1221030479-W-1 (M.S.P.B. July 9, 2003); Veltruski-Heck v. Social
Security Admin., No. SF1221030448-W-1 (M.S.P.B. June 18, 2003); Veltruski-Heck v.
Dep’t of Justice, SF1221030444-W-1 (M.S.P.B. June 18, 2003). We affirm. BACKGROUND
Mr. Veltruski-Heck appears to allege that various federal agencies have denied
him employment opportunities as reprisals for certain whistleblowing activities in
violation of 5 U.S.C. § 2302(b)(8). For example, Mr. Veltruski-Heck, an alien arrested
by the Immigration and Naturalization Service in June 2002, states in his informal brief
that the “essence of [his] cases” is that his “employers retaliated against [him] for
demanding sponsorship” to become a United States citizen. Elsewhere he states that “I
just want [the federal agencies] to give me a job to improve the way [they] conduct
business and stop the retaliatory acts against me to cover up [their] ineptitude.” He also
complains that “unscrupulous employers are not being prosecuted as requested by
Veltruski[-Heck;] that is why Veltruski[-Heck] is applying for a job with all the federal
agencies.”
In each of the cases, the administrative judge, without holding a hearing,
concluded that Mr. Veltruski-Heck failed to make non-frivolous allegations sufficient to
establish jurisdiction in front of the MSPB. In Mr. Veltruski-Heck’s case against the
Department of Homeland Security (“DHS”), the administrative judge determined that Mr.
Veltruski-Heck failed to make non-frivolous allegations of the type of wrongdoing that
can reasonably be attributed to the federal government, as opposed to a private
employer, such that its disclosure would qualify for protection. The administrative judge
also found that Mr. Veltruski-Heck failed to make a non-frivolous allegation that he
exhausted his remedies concerning his alleged application for employment with the
DHS. In Mr. Veltruski-Heck’s case against the Social Security Administration (“SSA”),
the administrative judge determined that Mr. Veltruski-Heck failed to make non-frivolous
04-3327, -3338, -3339 2 allegations or provide evidence that he was either an employee or an applicant for
employment with the SSA. In Mr. Veltruski-Heck’s case against the Department of
Justice (“DOJ”), the administrative judge similarly determined that Mr. Veltruski-Heck
failed to make non-frivolous allegations or provide evidence that he was either an
employee or an applicant for employment with the DOJ.
Mr. Veltruski-Heck petitioned the MSPB to review the administrative judge’s
decisions. In each case, the MSPB concluded that there was no new, previously
unavailable evidence and that the administrative judge made no error in law or
regulation that affected the outcome. The MSPB therefore denied each petition making
each initial decision final.
Mr. Veltruski-Heck petitions for review of each final decision. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review decisions of the MSPB to ensure they are not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2000).
In each case, the administrative judge determined that jurisdiction was lacking at
least in part because Mr. Veltruski-Heck failed to make non-frivolous allegations or
provide evidence either (1) that he was an employee, former employee, or applicant for
employment of one of the named federal agencies; or (2) that he exhausted his
remedies concerning alleged reprisals for whistleblowing activities even if he did make
non-frivolous allegations or provide evidence that he was an employee, former
04-3327, -3338, -3339 3 employee, or applicant for employment of one of the named federal agencies. The
administrative judge was correct to require that Mr. Veltruski-Heck satisfy both of these
jurisdictional requirements. See 5 U.S.C. § 1221(a) (granting “an employee, former
employee, or applicant for employment” the right to seek corrective action from the
MSPB in certain reprisal cases); 5 U.S.C. § 2302(b)(8) (prohibiting reprisals against
“any employee or applicant for employment”); 5 U.S.C. § 1214(a)(3) (requiring
exhaustion of remedies in section 2302(b)(8) cases). Thus, we conclude that the three
decisions of the MSPB were not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
We also conclude that, in each case, the administrative judge followed
procedures required by applicable laws, rules, and regulation. In particular, the
administrative judge was not required to hold hearings absent non-frivolous allegations.
See Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002) (stating that
“an evidentiary hearing is unnecessary for the conferring of jurisdiction, because
whether allegations are ‘non-frivolous’ is determined by the written record”). As
discussed below, we conclude that the administrative judge was correct that Mr.
Veltruski-Heck failed to make non-frivolous allegations. Thus, the administrative judge’s
decision not to hold hearings was not improper.
We conclude that substantial evidence supports the administrative judge’s
conclusions regarding the frivolousness of Mr. Veltruski-Heck’s allegations and the lack
of evidence supporting the allegations. In this regard, Mr. Veltruski-Heck appears to
challenge the administrative judge’s determination that he failed to provide evidence
that he was an employee of the SSA. Mr. Veltruski-Heck states that he “worked for 6
04-3327, -3338, -3339 4 different offices of SSA” and that he was “directly paid by SSA.” Mr. Veltruski-Heck,
however, fails to point to any evidence in the record supporting these assertions.
Furthermore, even if supported by evidence in the record, these facts alone would not
Free access — add to your briefcase to read the full text and ask questions with AI
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
04-3327, -3338, -3339
CARLOS A. VELTRUSKI-HECK,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: June 10, 2005 __________________________
Before LOURIE, LINN, and PROST, Circuit Judges.
PER CURIAM.
Carlos A. Veltruski-Heck petitions for review of three final decisions of the Merit
Systems Protection Board (“MSPB”). In each decision, the MSPB affirmed the initial
decision of an administrative judge dismissing Mr. Veltruski-Heck’s individual-right-of-
action appeals for lack of jurisdiction. See Veltruski-Heck v. Dep’t of Homeland
Security, No. SF1221030479-W-1 (M.S.P.B. July 9, 2003); Veltruski-Heck v. Social
Security Admin., No. SF1221030448-W-1 (M.S.P.B. June 18, 2003); Veltruski-Heck v.
Dep’t of Justice, SF1221030444-W-1 (M.S.P.B. June 18, 2003). We affirm. BACKGROUND
Mr. Veltruski-Heck appears to allege that various federal agencies have denied
him employment opportunities as reprisals for certain whistleblowing activities in
violation of 5 U.S.C. § 2302(b)(8). For example, Mr. Veltruski-Heck, an alien arrested
by the Immigration and Naturalization Service in June 2002, states in his informal brief
that the “essence of [his] cases” is that his “employers retaliated against [him] for
demanding sponsorship” to become a United States citizen. Elsewhere he states that “I
just want [the federal agencies] to give me a job to improve the way [they] conduct
business and stop the retaliatory acts against me to cover up [their] ineptitude.” He also
complains that “unscrupulous employers are not being prosecuted as requested by
Veltruski[-Heck;] that is why Veltruski[-Heck] is applying for a job with all the federal
agencies.”
In each of the cases, the administrative judge, without holding a hearing,
concluded that Mr. Veltruski-Heck failed to make non-frivolous allegations sufficient to
establish jurisdiction in front of the MSPB. In Mr. Veltruski-Heck’s case against the
Department of Homeland Security (“DHS”), the administrative judge determined that Mr.
Veltruski-Heck failed to make non-frivolous allegations of the type of wrongdoing that
can reasonably be attributed to the federal government, as opposed to a private
employer, such that its disclosure would qualify for protection. The administrative judge
also found that Mr. Veltruski-Heck failed to make a non-frivolous allegation that he
exhausted his remedies concerning his alleged application for employment with the
DHS. In Mr. Veltruski-Heck’s case against the Social Security Administration (“SSA”),
the administrative judge determined that Mr. Veltruski-Heck failed to make non-frivolous
04-3327, -3338, -3339 2 allegations or provide evidence that he was either an employee or an applicant for
employment with the SSA. In Mr. Veltruski-Heck’s case against the Department of
Justice (“DOJ”), the administrative judge similarly determined that Mr. Veltruski-Heck
failed to make non-frivolous allegations or provide evidence that he was either an
employee or an applicant for employment with the DOJ.
Mr. Veltruski-Heck petitioned the MSPB to review the administrative judge’s
decisions. In each case, the MSPB concluded that there was no new, previously
unavailable evidence and that the administrative judge made no error in law or
regulation that affected the outcome. The MSPB therefore denied each petition making
each initial decision final.
Mr. Veltruski-Heck petitions for review of each final decision. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review decisions of the MSPB to ensure they are not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2000).
In each case, the administrative judge determined that jurisdiction was lacking at
least in part because Mr. Veltruski-Heck failed to make non-frivolous allegations or
provide evidence either (1) that he was an employee, former employee, or applicant for
employment of one of the named federal agencies; or (2) that he exhausted his
remedies concerning alleged reprisals for whistleblowing activities even if he did make
non-frivolous allegations or provide evidence that he was an employee, former
04-3327, -3338, -3339 3 employee, or applicant for employment of one of the named federal agencies. The
administrative judge was correct to require that Mr. Veltruski-Heck satisfy both of these
jurisdictional requirements. See 5 U.S.C. § 1221(a) (granting “an employee, former
employee, or applicant for employment” the right to seek corrective action from the
MSPB in certain reprisal cases); 5 U.S.C. § 2302(b)(8) (prohibiting reprisals against
“any employee or applicant for employment”); 5 U.S.C. § 1214(a)(3) (requiring
exhaustion of remedies in section 2302(b)(8) cases). Thus, we conclude that the three
decisions of the MSPB were not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
We also conclude that, in each case, the administrative judge followed
procedures required by applicable laws, rules, and regulation. In particular, the
administrative judge was not required to hold hearings absent non-frivolous allegations.
See Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1361 (Fed. Cir. 2002) (stating that
“an evidentiary hearing is unnecessary for the conferring of jurisdiction, because
whether allegations are ‘non-frivolous’ is determined by the written record”). As
discussed below, we conclude that the administrative judge was correct that Mr.
Veltruski-Heck failed to make non-frivolous allegations. Thus, the administrative judge’s
decision not to hold hearings was not improper.
We conclude that substantial evidence supports the administrative judge’s
conclusions regarding the frivolousness of Mr. Veltruski-Heck’s allegations and the lack
of evidence supporting the allegations. In this regard, Mr. Veltruski-Heck appears to
challenge the administrative judge’s determination that he failed to provide evidence
that he was an employee of the SSA. Mr. Veltruski-Heck states that he “worked for 6
04-3327, -3338, -3339 4 different offices of SSA” and that he was “directly paid by SSA.” Mr. Veltruski-Heck,
however, fails to point to any evidence in the record supporting these assertions.
Furthermore, even if supported by evidence in the record, these facts alone would not
provide sufficient grounds for us to overturn the conclusion of the administrative judge
that Mr. Veltruski-Heck was only a contractor, not an employee, of the SSA since
substantial evidence supports that conclusion.
Mr. Veltruski-Heck also appears to challenge the administrative judge’s
determination that he failed to provide evidence that he applied for various jobs with the
federal government. However, Mr. Veltruski-Heck merely states that he “applied for a
job following MSPB guidelines and was denied a job” without citation to supporting
evidence in the record. Without such evidence, we cannot say that substantial evidence
does not support the administrative judge’s conclusions. Furthermore, in front of the
MSPB, Mr. Veltruski-Heck argued that to be considered an applicant he was not
required to submit an application on a particular form and that any type of written
request or even verbal requests for federal employment should be sufficient. We agree
with the administrative judge’s rejection of these contentions: to be considered an
application for federal employment, the request for employment should be “solicited by
the government and received and processed through normal hiring procedures.”
We have considered other arguments presented by Mr. Veltruski-Heck and
conclude that they do not require reversal of any of the three MSPB decisions.
CONCLUSION
For the foregoing reasons, we affirm each of the three decisions.
04-3327, -3338, -3339 5