Jose Rosario-Fabregas v. Department of the Army ( 2014 )


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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    THIS ORDER IS NONPRECEDENTIAL 1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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
    

Document Info

Filed Date: 9/11/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021