Saturday, December 23, 2006

Jimenez v. Barnhart (Maryland U.S.D.C.)(not approved for publication)

Decided December 20, 2006--Opinion by Judge J. Frederick Motz (not approved for publication)

Pro se action for employment discrimination by an employee of the Social Security Administration. Defendants' Motion to dismiss or, in the alternative, for summary judgment, granted.

  1. Director of the Office of Personnel Management has only discretionary authority to seek review of a decision of the Merit Systems Protection Board (the "MSPB"), which discretion may only be exercised if the Director concludes that "the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive."

  2. A challenge to a decision of the MSPB can only be brought in the United States Court of Appeals for the Federal Circuit and a United States District Court has no jurisdiction over such claims.

  3. An adverse finding of the MSPB with respect to discrimination claims are required to be filed in a United States District Court within 30 days after the MSPB’s decision became final. She did not do so. If a review of an MSPB decision as to other claims is sought, that appeal must be filed in the United States Court of Appeals for the Federal Circuit within 60 days after the MSPB's decision became final. The United States District Court cannot review a decision of the United States Court of Appeals for the Federal Circuit.

  4. Certain claims are barred if an employee does not appeal an adverse decision of the Social Security Administration to the MSPB.

  5. Any claim with regard to the issuance of a Performance Assessment Plan to an employee fails because the issuance of the Plan is not a "ultimate employment decision" of the type necessary to give rise to a discrimination claim.

The full opinion is available in PDF.

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