Jose Rosario-Fabregas v. Department of the Army

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THIS ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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,

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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.

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¶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

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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).

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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).

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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.