Filed: Sep. 11, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSE ROSARIO-FABREGAS, DOCKET NUMBERS Appellant, NY-0752-10-0127-C-2 NY-0752-10-0127-X-1 v. DEPARTMENT OF THE ARMY, DATE: SEPTEMBER 11, 2014 Agency. THIS ORDER IS NONPRECEDENTIAL 1 Jose Rosario-Fabregas, San Juan, Puerto Rico, pro se. Elizabeth Vavrica, Esquire, Jacksonville, Florida, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member REMAND ORDER ¶1 On December 3, 2013, the administr
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSE ROSARIO-FABREGAS, DOCKET NUMBERS Appellant, NY-0752-10-0127-C-2 NY-0752-10-0127-X-1 v. DEPARTMENT OF THE ARMY, DATE: SEPTEMBER 11, 2014 Agency. THIS ORDER IS NONPRECEDENTIAL 1 Jose Rosario-Fabregas, San Juan, Puerto Rico, pro se. Elizabeth Vavrica, Esquire, Jacksonville, Florida, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member REMAND ORDER ¶1 On December 3, 2013, the administra..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE ROSARIO-FABREGAS, DOCKET NUMBERS
Appellant, NY-0752-10-0127-C-2
NY-0752-10-0127-X-1
v.
DEPARTMENT OF THE ARMY, DATE: SEPTEMBER 11, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jose Rosario-Fabregas, San Juan, Puerto Rico, pro se.
Elizabeth Vavrica, Esquire, Jacksonville, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 On December 3, 2013, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the Board’s November 30,
2011 Final Order reversing the appellant’s removal. MSPB Docket No.
NY-0752-10-0127-C-2 (C-2), Compliance File, Tab 20, Compliance Initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Decision (CID) at 4-5; MSPB Docket No. NY-0752-10-0127-I-1 (I-1), Petition
for Review (PFR) File, Tab 21 at 2, 5. The administrative judge ordered the
agency to reassess its handling of several matters. C-2, CID at 6-7. The agency
did not take action under 5 C.F.R. § 1201.183(6) within the time limit for doing
so, and therefore this matter was referred to the Board for processing under the
enforcement provisions of 5 C.F.R. § 1201.183(c)(1). See 5 C.F.R.
§ 1201.183(b). Meanwhile, the appellant filed a petition for review of the
compliance initial decision. C-2, PFR File, Tab 1. We address both the
compliance referral action and the petition for review of the compliance initial
decision in this Order.
¶2 For the reasons discussed below, we find the agency in compliance
regarding the matters that the administrative judge ordered it to address in her
compliance initial decision. We therefore DISMISS the petition for enforcement
concerning those issues. However, we GRANT the petition for review of the
compliance initial decision and REMAND the petition for enforcement for the
administrative judge address some other issues with which there are still
outstanding questions of compliance.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 Effective February 12, 2010, the agency removed the appellant from the
position of GS-12 Project Manager (Biologist). I-1, Initial Appeal File, Tab 4 at
22, 25-27. On November 30, 2011, the Board issued a Final Order reversing the
removal on due process grounds. I-1, Final Order at 2, 5 (Nov. 30, 2011). The
Board’s decision contained the standard language ordering status quo ante relief.
Final Order at 5-6. The agency retroactively cancelled the appellant’s removal on
December 2, 2011. MSPB Docket No. NY-0752-10-0127-C-1 (C-1), Compliance
File, Tab 6 at 7.
¶4 The appellant filed a petition for enforcement on January 30, 2012, arguing
that the agency had not complied with the Board’s order in several ways. C-1,
3
Compliance File, Tab 1. On May 30, 2012, the administrative judge issued a
compliance initial decision finding the agency in compliance and denying the
petition. C-1, CID (May 30, 2012). The appellant attempted to file a petition for
review of that decision. However, he sent the petition to the U.S. Court of
Appeals for the Federal Circuit by mistake; therefore, the Board never received it
nor docketed it. C-2, Compliance File, Tab 3 at 4. That compliance initial
decision became final on July 4, 2012. C-1, CID at 5; see 5 C.F.R. § 1201.113.
¶5 On February 19, 2013, the appellant filed another petition for enforcement.
C-2, Compliance File, Tab 1. He alleged that the agency was in noncompliance
as to his (1) back pay, C-2, Compliance File, Tab 3 at 5, Tab 5 at 5, Tab 13 at 5;
(2) Thrift Savings Plan (TSP) contributions, id., Tab 1 at 4-5, Tab 3 at 5, Tab 5 at
6-7, Tab 7 at 4-6, Tab 13 at 7-8; (3) Federal Employee Health Benefit (FEHB)
deductions, id., Tab 1 at 5-6, Tab 3 at 5, Tab 5 at 6-19, Tab 7 at 5-6, Tab 13 at
5-6, 11; (4) Federal Employee Group Life Insurance (FEGLI) deductions, id., Tab
13 at 6-7; (5) Social Security (OASDI) tax deductions,
id., Tab 13 at 8; and (6)
and income tax reporting requirements, id., Tab 13 at 8-10, Tab 17 at 4-5.
¶6 The administrative judge detected discrepancies in several matters and
granted the petition for enforcement in part. C-2, CID at 4-5. She issued a
compliance initial decision ordering the agency to reassess its handling of the
TSP contributions, FEHB deductions, and OASDI and Medicare tax deductions,
provide explanatory statements clarifying its handling of these matters, and make
and explain any necessary corrections. C-2, CID at 6-7. The appellant has filed a
petition for review and the agency has filed a response. 2 C-2, PFR File, Tabs 1,
5.
2
The appellant filed three additional submissions as well. C-2, PFR File, Tabs 3, 4, 6.
These submissions were filed outside the time limit for filing a petition for review, and
the Board’s regulations do not otherwise provide for them. See 5 C.F.R. § 1201.114(a).
Therefore, we have not considered these submissions.
4
¶7 Meanwhile, the agency failed to make a timely submission with the Clerk of
the Board under 5 C.F.R. § 1201.183(a)(6) as required when the administrative
judge made her finding of noncompliance. Therefore, while the petition for
review was pending, the matter was referred for processing under the enforcement
provisions of 5 C.F.R. § 1201.183(c). MSPB Docket No. NY-0752-10-0127-X-1
(X-1), Compliance Referral File, Tab 1; see 5 C.F.R. § 1201.183(b). The agency
responded, asserting that it is in substantial compliance, with the exception of the
OASDI and Medicare tax deductions, for which it is awaiting action from the
Social Security Administration (SSA). X-1, Compliance Referral File, Tabs 2-4.
The appellant has replied, arguing that the agency is still in noncompliance. X-1,
Compliance Referral File, Tabs 5-6.
Compliance Referral File (X-1)
¶8 In accordance with the orders issued by the Clerk of the Board and the
administrative judge, the agency reviewed the actions taken in connection with
the appellant’s TSP account and confirmed that they had been processed correctly
as of March 14, 2014. X-1, Compliance Referral File, Tab 3 at 5-6. The agency
explained the discrepancy between its initial attempt to allocate the TSP
deductions and its March 14, 2013 allocation, the latter of which the Defense
Finance and Accounting Service (DFAS) confirmed was correct. Id. at 5-6,
18-41.
¶9 The agency also reviewed the FEHB deductions and determined that the
appellant requested and was entitled to a refund of the premiums from the pay
period ending on February 27, 2010, through the pay period ending on
December 3, 2011. Id. at 4-5. It calculated the total premiums from this period
as amounting to $3,649.08 and paid this amount to the appellant. Id. at 4, 10-12.
¶10 Finally, the agency explained that DFAS had requested SSA to process the
appellant’s OASDI and Medicare tax deductions and provided SSA complete and
accurate information to carry out this request. Id. at 6, 13-17. The agency
5
asserted that this was the last step within DFAS’s control to accomplish
compliance with the administrative judge’s order. Id. at 6.
¶11 The appellant responded, arguing that the agency’s evidence of compliance
pertains only to the administrative judge’s December 13, 2013 compliance initial
decision and not to the Board’s November 30, 2011 Final Order. X-1,
Compliance Referral File, Tab 1 at 4. In this regard, we find that the purpose of
the compliance action and the compliance initial decision is to ensure the
agency’s compliance with the original status quo ante relief order. 5 C.F.R.
§§ 1201.182-1201.183. The only issue in the compliance referral action is
whether the agency has carried out the administrative judge’s order in the
compliance initial decision. 3 5 C.F.R. § 1201.183(c)(1).
¶12 The appellant also argues that the agency’s original erroneous removal
action and its erstwhile failure to comply with the Board’s November 11, 2013
Final Order should cast doubt on its present assertions of compliance. X-1,
Compliance Referral File, Tab 5 at 4-5, 18-19. We understand the appellant’s
frustration with the agency’s missteps, but we must objectively evaluate the
agency’s evidence of compliance on the record evidence and argument.
¶13 The appellant further argues that the errors that the agency committed in the
underlying removal action and its compliance efforts lend support to his
3
In the compliance referral matter, the appellant makes numerous allegations of
deficiencies in the compliance initial decision and raises several issues of
noncompliance for the first time. X-1, Compliance Referral File, Tab 5 at 5, 8-14, Tab
6 at 4-6. To the extent that the appellant believes that the compliance initial decision
did not address all issues of noncompliance, the appropriate action is either to file a
petition for review of the compliance initial decision or a new petition for enforcement.
See 5 C.F.R. §§ 1201.182(a), 1201.183(a)(4). Thus, these matters are not properly
before the Board in this compliance referral action. We will review these allegations in
connection with the appellant’s petition for review of the compliance initial decision to
the extent that he raised them in a proper filing related to his petition for review of the
compliance initial decision. To the extent that the appellant is attempting to raise new
allegations of noncompliance, he must file a new petition for enforcement. If he
chooses to do so, he must show good cause for his filing delay. 5 C.F.R. § 1201.182(a).
6
arguments on the merits of his other pending appeals. 4 X-1, Compliance Referral
File, Tab 5 at 5-6, 9-10, 15-18, 20, Tab 6 at 7. To the extent that the appellant
believes that this is the case, he must raise this argument in those appeals. The
instant compliance referral is not the proper place to make arguments related to
those other appeals.
¶14 The appellant also alleges that the agency’s difficulty in complying with the
Board’s November 30, 2011 Final Order was the result of agency officials
purposely using an incorrect code on the Standard Form (SF) 50 cancelling his
removal. X-1, Compliance Referral File, Tab 5 at 6-7. It is unclear what remedy
the appellant seeks for this alleged conduct. To the extent that he wishes the
Board to sanction agency officials for this under 5 U.S.C. § 1204(e)(2)(A), we
decline to do so. The purpose of sanctions under this provision is to obtain
compliance and, once compliance is achieved, sanctions are inappropriate.
Martin v. Department of Justice, 99 M.S.P.R. 59, ¶ 16 (2005), aff’d, 188 F. App’x
994 (Fed. Cir. 2006). Because we find the agency in compliance under the terms
of the compliance initial decision, there is no basis to impose sanctions in the
context of the compliance referral action.
¶15 The appellant also requests that the Board order the agency to provide the
name of the agency official responsible for complying with its order in
accordance with 5 C.F.R. § 1201.183(a)(2). X-1, Compliance Referral File, Tab 5
at 14-15. In light of our finding, infra ¶ 25, that the administrative judge shall
order the agency to provide this information on remand, and because we find that
the agency has carried out the order in the compliance initial decision, we need
not resolve this issue here. See Martin, 99 M.S.P.R. 59, ¶ 16.
4
The appellant currently has three other appeals pending before the Board: an
individual right of action appeal, Rosario-Fabregas v. Department of the Army, MSPB
Docket No. NY-1221-11-0253-B-1; a constructive suspension appeal, Rosario-Fabregas
v. Department of the Army, MSPB Docket No. NY-0752-13-0167-I-1; and a second
removal appeal, Rosario-Fabregas v. Department of the Army, MSPB Docket No.
NY-752-13-0142-I-2.
7
¶16 The appellant requests that the Board order an audit of the agency’s
compliance actions by an independent firm. X-1, Compliance Referral File, Tab
5 at 20-21. Even assuming that the Board has the authority to order such an
audit, we have no procedures in place for doing so. We deny the appellant’s
request. The extant record in this case is sufficient to resolve the issue of
compliance with the December 3, 2013 compliance initial decision.
¶17 Finally, the appellant requests that the Board sanction various agency
officials for the agency’s noncompliance. X-1, Compliance Referral File, Tab 5
at 20-21, Tab 6 at 5-6. Because the agency is now in compliance, pending actions
from SSA, we decline to impose sanctions. See Martin, 99 M.S.P.R. 59, ¶ 16.
¶18 Having reviewed the agency’s and the appellant’s submissions, we find that
the agency adequately addressed all of the issues that the administrative judge
ordered it to address, and that the appellant has not rebutted the agency’s proof of
compliance. Accordingly, we find that the agency is in compliance under the
terms of the administrative judge’s December 3, 2013 compliance initial
decision. 5
Petition for Review of the Compliance Initial Decision (C-2, PFR File)
¶19 On review, the appellant argues that the administrative judge failed to
acknowledge that the agency did not meet the original 60-day deadline for
complying with the Board’s November 30, 2011 Final Order. C-2, PFR File, Tab
1 at 5; I-1, PFR File, Tab 21 at 5-6. We acknowledge that the agency did not
achieve compliance by the original deadline, but the significance of that fact is
unclear in the context of this petition for review.
5
In its response to the appellant’s petition for review of the compliance initial decision,
the agency argues that the FEHB issue was addressed in the first compliance initial
decision dated May 30, 2012, that the appellant was precluded from raising it again in
the instant petition for enforcement, and that the administrative judge should not have
addressed it in her December 3, 2013 compliance initial decision. C-2, PFR File, Tab 5
at 5-6. Because we find that the agency is now in compliance on this matter, the issue
is moot.
8
¶20 The appellant also argues that the administrative judge failed to address his
argument regarding FEGLI deductions. C-2, PFR File, Tab 1 at 5-6. We agree.
An initial decision must identify all material issues of fact and law, summarize
the evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and her legal reasoning, as well as the authorities on which
that reasoning rests. Spithaler v. Office of Personnel Management, 1 M.S.P.R.
587, 589 (1980). Although the agency argues that the appellant has not yet made
an election as to whether he wants continuous coverage or a reimbursement of his
FEGLI premiums, C-2, PFR File, Tab 5 at 7-9, we will remand for the
administrative judge to adjudicate this issue in the first instance.
¶21 The appellant also alleges that various actions that the agency took during
the compliance proceedings were acts of retaliation. C-2, PFR File, Tab 1 at 6.
The appellant requests that the Board issue “straightforward” orders so that the
agency has less opportunity to commit such actions. Id. Apart from this, it does
not appear that the appellant wishes the Board to take any action based on this
information.
¶22 The appellant disagrees with the administrative judge’s analysis of his
claim regarding restoration of TSP withdrawals. C-2, PFR File, Tab 1 at 6-7.
Specifically, the appellant alleged below that he withdrew funds from his TSP
account to cover living expenses during his period of unemployment, and that the
agency incorrectly advised him that it was not possible to restore the withdrawals.
C-2, Compliance File, Tab 13 at 8. Thus, he argues that he missed his 90-day
window to restore the withdrawn funds. See 5 C.F.R. § 1605.13. The
administrative judge correctly found, however, that agencies do not have a duty to
provide notice of that right. C-2, CID at 6 n.3 (citing Crazy Thunder-Collier v.
Department of the Interior, 115 M.S.P.R. 82, 86-87 (2010)). The appellant
argues on review that his situation is different because he is not merely alleging
that the agency failed to inform him of his right to restore his TSP withdrawals;
9
he is alleging that it affirmatively misled him into believing that he could not do
so. C-2, PFR File, Tab 1 at 6-7.
¶23 We agree with the appellant. The Board has recognized a distinction in
other areas between agencies failing to provide information and agencies
affirmatively providing misleading or incorrect information. For example, the
Board will waive the deadline to make a deposit for post-1956 military service if
the appellant inquires of the agency on the matter and the agency provides
misinformation that induces him not to make the deposit. However, the Board
will not waive the deadline where the appellant’s failure to make the deposit is
due to a lack of information and he never consulted the agency on the matter.
Thomas v. Office of Personnel Management, 107 M.S.P.R. 334, ¶ 18 (2007). We
find it appropriate to apply the same distinction in this case, and that the instant
appeal is therefore unlike Crazy Thunder-Collier. The administrative judge shall
address this matter on remand.
¶24 The appellant also argues that some of the agency’s erstwhile compliance
problems are attributable to an improper coding of the SF-50 documenting the
cancellation of his removal. C-2, PFR File, Tab 1 at 7-8. To the extent that the
appellant is asking the Board to order a correction of the SF-50, we decline to do
so because he did not raise the issue below. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence).
¶25 The appellant also requests that the Board order the agency to provide
information regarding the agency official responsible for compliance. C-2, PFR
File, Tab 1 at 8. Under 5 C.F.R. § 1201.183(a)(2), if an appellant files a petition
for enforcement alleging that the agency is in noncompliance, the agency shall
submit the name, title, grade, and address of the agency official charged with
complying with the Board’s order, and inform such official in writing of the
10
potential sanction for noncompliance as set forth in 5 U.S.C. §§ 1204(a)(2) and
(e)(2)(A), even if the agency asserts it has fully complied. To the extent that the
agency has not complied with this regulation, the administrative judge shall order
it to do so on remand.
¶26 The appellant argues that the agency is in noncompliance because it
initiated an improper Debt Collection Act claim against him that has not yet been
resolved. C-2, PFR File, Tab 1 at 8-9, 11. We decline to address this issue
because the appellant did not raise it below. See Banks, 4 M.S.P.R. at 271.
¶27 The appellant also makes some arguments that appear to pertain to his other
pending Board appeals. C-2, PFR File, Tab 1 at 9-10. As we stated above, this
petition for review of the compliance initial decision is not the proper place to
make arguments related to these other appeals.
¶28 Finally, the appellant requests that the Board join Rosario-Fabregas v.
Department of the Army, MSPB Docket No. NY-0752-10-0127-P-1 with
Rosario-Fabregas v. Department of the Army, MSPB Docket No. NY-1221-11-
0253-W-2. C-2, PFR File, Tab 1 at 10. We deny the request for joinder on the
basis that the Board has already issued a final order in the former matter.
ORDER
¶29 For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall consider the appellant’s arguments that the agency is in
noncompliance because it has not reimbursed him his FEGLI deductions for his
period of unemployment, and his argument that the agency misled him into not
restoring his TSP withdrawals within the time limit for doing so. She shall also
order the agency to provide the information required under 5 C.F.R.
§ 1201.183(a)(2), if the agency has not already provided such information.
Finally, to the extent that there remains any dispute regarding the OASDI and
11
Medicare deductions, the administrative judge shall order the parties to apprise
her of the status of the DFAS’s request to SSA to process this matter.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
IN MSPB DOCKET NO. NY-0752-10-0127-X-1
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
IN MSPB DOCKET NO. NY-0752-10-0127-X-1
You have the right to request review of this final decision in MSPB Docket
No. NY-0752-10-0127-X-1, by the United States Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
12
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s "Guide for Pro Se
Petitioners and Appellants," which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
