Rosario-Fabregas v. MSPB , 833 F.3d 1342 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
JOSE E. ROSARIO-FABREGAS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE ARMY,
Intervenor
______________________
2015-3102
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-13-0167-I-1.
______________________
Decided: August 16, 2016
______________________
ROBERT J. GAJARSA, Latham & Watkins LLP, Wash-
ington, DC, argued for petitioner. Also represented by
BRETT MATTHEW SANDFORD, Menlo Park, CA.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, argued for
respondent. Also represented by BRYAN G. POLISUK.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
2 ROSARIO-FABREGAS v. MSPB
Washington, DC, argued for intervenor. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD; JOHN KASBAR, U.S. Army Corps
of Engineers, Jacksonville, FL.
______________________
Before DYK, WALLACH, and HUGHES, Circuit Judges.
Opinion for the court filed by Circuit Judge HUGHES.
Dissenting opinion filed by Circuit Judge DYK.
HUGHES, Circuit Judge.
Mr. Jose Rosario-Fabregas seeks review of a final de-
cision of the Merit Systems Protection Board dismissing
his appeal for lack of jurisdiction after concluding that
Mr. Rosario was not constructively suspended during his
four month absence from work. Because the Board’s
decision applied the correct legal standard to determine
whether an employee has been constructively suspended
and is supported by substantial evidence, we affirm.
I
Mr. Rosario served as a biologist and project manager
for the Regulatory Division of the Army Corps of Engi-
neers (Corps) until he was fired in February 2010. In
November 2011, the Board determined that the termina-
tion violated Mr. Rosario’s due process rights and ordered
his prompt restoration. This improper removal caused
Mr. Rosario to suffer from depression, thus he voluntarily
took sick leave to recover before resuming his duties.
On May 7, 2012, Mr. Rosario submitted a letter from
his physician, Dr. Juan Rodriguez-Velez, to his supervi-
sor, Mr. Sindulfo Castillo, stating that his symptoms,
which included severe anxiety, paranoia, chronic insom-
nia, marked irritability, frequent panic attacks, and
aggressive episodes, were not improving. Dr. Rodriguez-
Velez recommended either: (1) referring Mr. Rosario for
ROSARIO-FABREGAS v. MSPB 3
partial hospitalization; (2) relocating Mr. Rosario’s work-
ing area; or (3) providing reasonable accommodation for
three months to evaluate whether Mr. Rosario was emo-
tionally stable to continue working.
One month later, Mr. Rosario submitted another let-
ter to Mr. Castillo from Dr. Rodriguez-Velez, which rec-
ommended that Mr. Rosario return to work on July 2,
2012, for 20–30 hours per week, because he had “started
to advance emotionally.” J.A. 1279. The Corps viewed
this letter as a request for reasonable accommodation of
Mr. Rosario’s medical condition. Therefore, on June 14,
2012, Mr. Castillo requested further information to clarify
Mr. Rosario’s proposed accommodation, including the
number of hours he wanted to work per week, his pro-
posed schedule, and if he was requesting leave for the
hours he was not working each week or if he was request-
ing to be switched to a part-time schedule.
On June 25, 2012, Mr. Castillo reminded Mr. Rosario
to submit the information so that the Corps could contin-
ue processing his request for accommodation. Mr. Rosario
replied that he would not be submitting the forms because
he was going to return to work full time.
The next day, Mr. Castillo informed Mr. Rosario that
due to his symptomatology and the possibility of aggres-
sive episodes, the Corps had a reasonable belief that he
could not perform an essential job function and/or that he
represented a direct safety threat to himself or his co-
workers. Therefore, to return to duty on July 2, 2012,
Mr. Rosario needed to provide a medical release from his
physician addressing the history of his medical condition,
his prognosis, including an estimated date of recovery,
and an explanation of the condition’s impact, including
any resultant medical restrictions and the reasons for
them. Mr. Castillo also informed Mr. Rosario that he
needed to request approved leave or risk being placed in
4 ROSARIO-FABREGAS v. MSPB
AWOL status until he provided the requested medical
documentation.
Mr. Rosario requested leave under protest. On July
23, 2012, Mr. Rosario submitted a letter from
Dr. Rodriguez-Velez, which recommended that
Mr. Rosario apply for disability because his depression
had returned. Mr. Rosario did not provide any other
medical documentation and continued to request leave
under protest. On September 25, 2012, Mr. Castillo
informed Mr. Rosario that he had not yet provided ade-
quate medical documentation that would allow the agency
to evaluate his request to return to work.
On November 14, 2012, Mr. Rosario forwarded a re-
port from Dr. Rodriguez-Velez which outlined his treat-
ment regimen, and explained that Mr. Rosario could
exercise necessary impulse control and perform his duties
at an intermediate capacity, if in a structured and pre-
dictable environment. Dr. Rodriguez-Velez recommended
that Mr. Rosario return to work beginning on November
19, 2012 for 20–30 hours per week.
On November 15, 2012, the Corps issued a “Revised
Notice of Proposed Removal” based on the same charges
that led to the first removal action in February 2010.
Mr. Rosario was informed that he would be placed on
administrative leave, beginning November 18, 2012,
pending a decision from the deciding official regarding the
proposal.
Mr. Rosario appealed, arguing that he was construc-
tively suspended from July 2, 2012 until November 18,
2012, when he was placed on administrative leave. The
Board, however, concluded that he was not constructively
suspended and dismissed the appeal for lack of jurisdic-
tion.
ROSARIO-FABREGAS v. MSPB 5
Mr. Rosario appeals. We have jurisdiction under 5
U.S.C. §§ 7703(b)(1)(A), 7702(a)(1)(A), and 28 U.S.C.
§ 1295(a)(9).
II
We may set aside a Board decision if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise 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). Whether the Board had jurisdiction to adjudi-
cate an appeal is a question of law, which we review de
novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378
(Fed. Cir. 1999) (citing Middleton v. Dep’t of Def., 185 F.3d
1374, 1379 (Fed. Cir. 1999)); Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995). This court is bound by
the Board’s jurisdictional factual findings “unless those
findings are not supported by substantial evidence.”
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998).
A
The Board’s appellate jurisdiction is limited to agency
actions over which it has been granted jurisdiction by law,
rule, or regulation. 5 U.S.C. § 7701(a). Appealable agen-
cy actions include removals and suspensions for more
than 14 days. 5 U.S.C. §§ 7512, 7513(d). Additionally,
this court has recognized that “seemingly voluntary
actions in some circumstances may be considered adverse
actions” over which the Board has jurisdiction. Garcia v.
Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir.
2006) (en banc). Specifically, the Board has jurisdiction
“if the employee proves, by a preponderance of the evi-
dence, that [his or her action] was involuntary and thus
tantamount to [a forced enumerated adverse action].” Id.
at 1329 (alterations in original) (citing Shoaf v. Dep’t of
Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001)).
6 ROSARIO-FABREGAS v. MSPB
One such involuntary action that the Board has juris-
diction over is an appeal based on a “constructive suspen-
sion”—an involuntary absence from an agency for more
than 14 days. Halloway v. U.S. Postal Serv., 993 F.2d
219, 220–21 (Fed. Cir. 1991) (the dispositive inquiry for
whether there has been a suspension for jurisdictional
purposes is “whether the employee’s absence from the
agency was voluntary or involuntary”).
In the context of constructive resignations and re-
tirements, the decision to retire or resign is presumed
voluntary “and this presumption will prevail unless
plaintiff comes forward with sufficient evidence to estab-
lish that the resignation [or retirement] was involuntarily
extracted.” Garcia, 437 F.3d at 1329. Claimants general-
ly allege involuntariness by establishing that the resigna-
tion or retirement was the product of (1) misinformation
or deception by the agency or (2) coercion by the agency.
Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111, 1121 (Fed.
Cir. 2013). This court has determined that the Board has
jurisdiction over involuntary coercion claims if the em-
ployee first establishes that: “(1) the agency effectively
imposed the terms of the employee’s resignation or re-
tirement; (2) the employee had no realistic alternative but
to resign or retire; and (3) the employee’s resignation or
retirement was the result of improper acts by the agency.”
Garcia, 437 F.3d at 1329 (quoting Shoaf, 260 F.3d at
1341).
Here, Mr. Rosario alleges that his decision to take
leave was involuntary due to coercion by the Corps. See
Pet. Br. 21 (“On behalf of the Corps, Mr. Castillo decided
that [Mr. Rosario] could not perform the duties of his
position because of his medical disabilities and forced him
to use leave indefinitely . . . .”). Therefore, the Board
required Mr. Rosario to demonstrate that his absence
from work was involuntary by proving that: (1) he lacked
a meaningful choice in the matter; and (2) it was the
Corps’ wrongful actions that deprived him of that choice.
ROSARIO-FABREGAS v. MSPB 7
See Romero v. U.S. Postal Serv., 121 M.S.P.R. 606, 610
(2014). Ultimately, the Board concluded that
“[c]onsidering the appellant’s failure to engage in the
interactive process with respect to his request for part-
time work and his failure to provide documentation from
his psychiatrist releasing him for full-time work . . . the
agency did not act improperly in refusing to place the
appellant back in a duty status.” J.A. 12.
Mr. Rosario argues, however, that the Board’s re-
quirements for establishing involuntariness erroneously
conflated the merits determination (whether the Corps’
action was wrongful) with the jurisdictional question
(whether Mr. Rosario’s absence was involuntary). See
Pet. Br. 21–23. We disagree. In the context of construc-
tive action cases, whether an agency acted wrongfully is
fundamental to determining jurisdiction because “[a]n
action is not voluntary if it is produced by government
conduct which is wrongful.” Roskos v. United States, 549
F.2d 1386, 1389–90 (Ct. Cl. 1977). Moreover, the Board’s
requirements for establishing jurisdiction in constructive
suspension cases are directly in line with this court’s
requirements for establishing jurisdiction in constructive
retirement and resignation cases. Compare Romero, 121
M.S.P.R. at 610 (requiring an employee to establish
involuntariness by proving that the agency’s wrongful
actions deprived him of a meaningful choice in the mat-
ter), with Garcia, 437 F.3d at 1329 (requiring an employ-
ee to establish involuntariness by proving, among other
things, that the resignation or retirement was the result
of improper acts by the agency). Therefore, the standard
used by the Board to determine if Mr. Rosario’s absence
from work was involuntary was appropriate.
B
Because we find the Board’s jurisdictional inquiry ap-
propriate, Mr. Rosario’s petition for review must be de-
nied if the Board’s decision is supported by substantial
8 ROSARIO-FABREGAS v. MSPB
evidence. J.A. 12; see Bolton, 154 F.3d at 1316; Hogan v.
Dep’t of Navy, 218 F.3d 1361, 1364 (Fed. Cir. 2000)
(“[T]his court will not overturn an agency decision if it is
supported by such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” (inter-
nal quotation marks and citation omitted)).
Mr. Rosario asserts that his absence from work from
July 2, 2012 until November 18, 2012, was involuntary—
i.e., he lacked a meaningful choice in the matter. Even
assuming that assertion is correct, for Mr. Rosario to
prevail, he must also show that his absence was involun-
tary because it was caused by improper agency action.
See Romero, 121 M.S.P.R. at 610.
When an employee voluntarily takes leave, an agency
may properly refuse to allow the employee to resume
working if the employee does not satisfy the agency’s
conditions for returning to work. Id. at 610 n.2 (“[W]hile
the agency’s refusal to allow the appellant to return to
work is the immediate cause of his absence, the proximate
cause is arguably his failure to meet the conditions of the
agency’s ‘clearance to return to work’ policy.”). In those
circumstances, the agency’s refusal to allow the employee
to return to work does not amount to a constructive
suspension.
Here, Mr. Rosario took voluntary leave to recover
from depression. When Mr. Rosario was able to resume
working, the Corps conditioned his return on the provi-
sion of a medical release in which his physician addressed
the history of his medical condition, his prognosis, includ-
ing estimated date of recovery, and an explanation of the
impact of the medical condition, including any resultant
medical restrictions and the reasons for them. 1 J.A. 1291.
1 We offer no conclusion as to whether the Corps’
conditions for returning to work violate the Americans
ROSARIO-FABREGAS v. MSPB 9
Mr. Rosario did not provide the Corps with the requested
medical release and thus failed to comply with the Corps’
conditions for returning to work. Accordingly, substantial
evidence supports the Board’s finding that the Corps did
not act improperly by refusing to allow Mr. Rosario to
return to work. Because the Corps did not act improperly
in refusing to allow Mr. Rosario to return to work, his
absence was not involuntary and thus he was not con-
structively suspended.
III
Because the Board applied the correct standard for
determining whether an employee has been constructively
suspended and substantial evidence supports the finding
that the Corps did not act improperly in refusing to allow
Mr. Rosario to return to work, Mr. Rosario was not con-
structively suspended. Therefore, we affirm the Board’s
decision dismissing the appeal for lack of jurisdiction.
AFFIRMED
No costs.
with Disabilities Act Amendments Act, as jurisdiction for
those claims lie with the Equal Employment Opportunity
Commission, 5 U.S.C. § 7702(b)(1), or the appropriate
United States District Court, 5 U.S.C. § 7703(b)(2).
United States Court of Appeals
for the Federal Circuit
______________________
JOSE E. ROSARIO-FABREGAS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
DEPARTMENT OF THE ARMY,
Intervenor
______________________
2015-3102
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0752-13-0167-I-1.
______________________
DYK, Circuit Judge, dissenting.
The majority in this case affirms the Board’s dismis-
sal of Mr. Rosario’s case for lack of jurisdiction. Unfortu-
nately, the panel majority, the Board, the agency, and the
petitioner himself view the case as involving an alleged
constructive suspension—that is, a purportedly voluntary
act that is, in fact, involuntary. In my view this is not a
true constructive suspension case in which an employee’s
facially voluntary leave is, in fact, coerced and involun-
tary. Instead, under our court’s precedent, Mr. Rosario’s
2 ROSARIO-FABREGAS v. MSPB
absence is properly viewed as a facially involuntary
suspension over which the Board has jurisdiction.
It is undisputed that in June of 2012, Mr. Rosario con-
tacted his supervisor at the Corps, Mr. Castillo, asking to
return from sick leave on July 2, 2012. Mr. Castillo
refused to permit him to return to work absent medical
documentation establishing that Mr. Rosario was able to
perform his job safely and capably. As the majority
opinion describes, “[w]hen Mr. Rosario was able to resume
working, the Corps conditioned his return on the provi-
sion of a medical release in which his physician addressed
the history of his medical condition, his prognosis, includ-
ing estimated date of recovery, and an explanation of the
impact of the medical condition, including any resultant
medical restrictions and the reasons for them.” Maj. Op.
at 8. Between July 2 and November 18, 2012, the em-
ployee asked to work, and the agency prevented him. 1
This case is governed by Pittman v. Merit Systems
Protection Board, 832 F.2d 598 (Fed. Cir. 1987). There,
we reviewed the Army’s decision to place an employee “on
enforced leave after determining that it could no longer
retain him on a light-duty position and that it had no
other position which he was physically capable of per-
forming within his medical restrictions.” Id. at 599. We
held that this enforced leave constituted an appealable
suspension of more than 14 days. 2 Id. at 600.
1 After the agency refused to let him return, Mr.
Rosario chose to use leave rather than risk being placed
in AWOL status. But that does not transform his facially
involuntary suspension into a voluntary one.
2 Although the statute defines a “suspension” as
“the placing of an employee, for disciplinary reasons, in a
temporary status without duties and pay,” 5 U.S.C.
ROSARIO-FABREGAS v. MSPB 3
“[I]ndefinite enforced leave is tantamount to depriving the
worker of his job—without any review other than by the
agency—until the agency itself changes its mind and
decides that he can perform his job.” Id.As in Pittman, Mr. Rosario’s leave was “a suspension
for more than 14 days.” 5 U.S.C. § 7512(2). Under
§ 7513(d), “[a]n employee against whom an action is taken
under this section is entitled to appeal to the Merit Sys-
tems Protection Board under section 7701 of this title.” 5
U.S.C. § 7513(d). We held in Garcia that “jurisdiction
under § 7512 is established if and when a claimant shows
that he or she is, in fact, a covered employee as required
by the statute and that the agency took one of the enu-
merated actions in § 7512 against the claimant.” Garcia
v. Dep’t of Homeland Sec., 437 F.3d 1322, 1327–28 (Fed.
Cir. 2006) (en banc). Mr. Rosario has met this burden.
A constructive suspension, by contrast, exists when
an employee’s facially voluntary leave is, in fact, coerced
and involuntary. “A constructive adverse action arises
when an agency’s conduct leaves an employee no alterna-
tive but for the employee, involuntarily, to impose the
adverse action on himself or herself.” Id. at 1324. The
MSPB has previously distinguished an enforced leave
from a true constructive suspension. In Abbott v. United
States Postal Service, the Board reviewed Pittman and
noted that “an agency’s placement of an employee on
§ 7501(2) (emphasis added), Pittman held that enforced
leaves qualify, because such suspensions “are ‘discipli-
nary’ in the broader sense of maintaining the orderly
working of the Government against possible disruption by
the suspended employee,” 832 F.2d at 599 (quoting
Thomas v. Gen. Servs. Admin., 756 F.2d 86, 89 (Fed. Cir.
1985)).
4 ROSARIO-FABREGAS v. MSPB
enforced leave for more than 14 days constitutes an
appealable suspension within the Board’s jurisdiction.”
121 M.S.P.R. 294, 298 (M.S.P.B. 2014) (citing Pittman,
832 F.2d at 599–600). Abbott held that “suspensions
under these circumstances are not ‘constructive,’ and the
case law concerning constructive suspensions is inappli-
cable.” Id. This is a meaningful distinction, as the peti-
tioner in a non-constructive suspension case does not need
to clear the additional jurisdictional hurdle of proving the
involuntariness of his absence from work. Mr. Rosario’s
claim is not a constructive suspension claim because he
was barred from returning to work by the agency.
The Board’s decision does not mention Pittman, and
its appeal brief dismisses the decision in passing, noting
that “what the petitioner has alleged in this matter” is a
constructive suspension, not an enforced leave suspen-
sion. Resp’t’s Br. at 24 n.3. While Mr. Rosario framed his
petition and now frames his appeal in terms of construc-
tive suspension, we cannot, because of that error, apply
an incorrect jurisdictional framework. Indeed, it is well
established that we are obliged to decide jurisdictional
questions without regard to a petitioner’s erroneous
positions on jurisdictional issues. “[E]very federal appel-
late court has a special obligation to satisfy itself not only
of its own jurisdiction, but also that of the lower courts in
a cause under review . . . .” Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986) (citation and internal
quotation marks omitted). “When a requirement goes to
subject-matter jurisdiction, courts are obligated to consid-
er sua sponte issues that the parties have disclaimed or
have not presented. Subject-matter jurisdiction can never
be waived or forfeited.” Gonzalez v. Thaler, 132 S. Ct.
641, 648 (2012) (internal citation omitted); see also 14D
Charles Alan Wright et al., Fed. Practice & Procedure
§ 3801 (4th ed. 2013) (“Subject matter jurisdiction . . .
ROSARIO-FABREGAS v. MSPB 5
cannot be waived by the parties.”). “The Board has juris-
diction to determine whether a resignation was voluntary
or involuntary because it has jurisdiction to determine its
jurisdiction, as do its AJ’s.” Cruz v. Dep’t of the Navy, 934
F.2d 1240, 1244 (Fed. Cir. 1991) (en banc).
To be sure, the agency may have been justified in re-
fusing to permit Mr. Rosario to return to work. An agency
with reasonable concerns should have the authority to
require a long-absent employee to submit documentation
of fitness to work as a condition of return. But the propri-
ety of an agency’s decision to bar an employee from work
for failure to submit medical documentation is a merits
question, not a jurisdictional one. I would reverse the
MSPB’s dismissal for lack of jurisdiction and remand with
instructions to consider the merits of Mr. Rosario’s claim.
I respectfully dissent.