Deliris Montanez v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.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
______________________
D ELIRIS MONTANEZ, El Paso, TX, pro se.
CONSTANCE E. T RAVANTY , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
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MONTANEZ v. MSPB 2
Before M OORE, Chief Judge, CHEN, Circuit Judge, and
BARNETT , Judge.1
P ER 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.
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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.
D ISCUSSION
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
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MONTANEZ v. MSPB 4
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
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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.
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MONTANEZ v. MSPB 6
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.
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