Ruth M. Lopez v. Department of the Interior

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
04-3073
RUTH M. LOPEZ,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
_________________________
DECIDED: November 9, 2004
_________________________
Before MAYER, Chief Judge, LOURIE and DYK, Circuit Judges.
PER CURIAM.
Ruth Lopez (“Lopez”) appeals the decision of the Merit Systems Protection
Board, which: (1) dismissed her claim of retaliatory termination in 1986 for lack of
jurisdiction; and (2) held that the Department of the Interior (“agency”) proved by clear
and convincing evidence that it would not have hired Lopez in 1997 or 1999 irrespective
of the protected disclosures she made during the 1980s. Lopez v. Dep’t of the Interior,
SF-1221-01-0529-W-2 (MSPB Sept. 5, 2002).1 We affirm.
1 This decision became final when the full board denied Lopez’s petition for review.
Lopez v. Dep’t of the Interior, SF-1221-01-0529-W-2 (MSPB Sept. 17, 2003).

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Lopez claims that on May 16, 1986, the agency fired her one week before the
expiration of her term as an archeologist in retaliation for several letters she had written
regarding the construction of the new Bureau of Land Management building in Needles,
California. The board held that it lacked jurisdiction over this claim because the
retaliatory action was taken before the effective date of the Whistleblower Protection Act
(“WPA”), 5 U.S.C. § 2302(b)(8) (2000). In response, Lopez contends that she was
unaware that she had been terminated given that her appointment was slated to expire
on May 23, 1986. She maintains that between 1986 and the time discovery was
conducted in this case she believed her employment had simply expired. As a result,
she argues that her allegation of retaliatory termination was not “pending” before the
effective date of the WPA, 5 C.F.R. § 1201.191(b)(2), but rather that her claim came
into existence after the effective date of the WPA (i.e., when she learned that she had
been terminated).
Our case law holds that a challenged personnel action must have been taken
subsequent to the effective date of the WPA in order to invoke the jurisdiction of the
board. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 667 (Fed. Cir. 1998) (“The WPA,
however, applies only to acts of reprisal that occurred after the statute became effective
on July 9, 1989.”); Knollenberg v. Merit Sys. Prot. Bd., 953 F.2d 623, 625 (Fed. Cir.
1992) (holding that an individual right of action under the WPA is “available only when
the subject personnel action was taken subsequent to the effective date of the [WPA]”).
In Eidmann v. Merit Systems Protection Board, we held that there was jurisdiction
pursuant to the WPA because the agency had not filed its complaint and given notice of
that action to the employee until after July 9, 1989. 976 F.2d 1400, 1404 (Fed. Cir. 1992).
04-3073 2

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Here, while Lopez might not have fully understood the nature of the agency action, there
is no question that it took place prior to the enactment of the WPA.
With respect to Lopez’s allegations that the agency did not rehire her in 1997 and
1999 on account of her protected disclosures, the board held that the agency proved by
clear and convincing evidence that it would have made the same personnel decisions
irrespective of Lopez’s disclosures. This factual finding is supported by substantial
evidence and, therefore, we affirm it as well. 5 U.S.C. § 7703 (2000).
04-3073 3

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