Jose Rosario-Fabregas v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE E. ROSARIO-FABREGAS, DOCKET NUMBER
Appellant, NY-0752-13-0142-C-1
v.
DEPARTMENT OF THE ARMY, DATE: December 5, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jose E. Rosario-Fabregas, San Juan, Puerto Rico, pro se.
Elizabeth Vavrica and Elizabeth Moseley, Jacksonville, Florida, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which granted in part his petition for enforcement. In his petition for
review, the appellant reasserts that the agency is in noncompliance with the
Board’s order regarding his return to duty, he disputes the instructions included in
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the administrative judge’s compliance initial decision, and he presents several
arguments pertaining to prior appeals already disposed of by the Board.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the cas e; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and mater ial
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the compliance initial
decision, referring the petition for enforcement to the Board’s Office of General
Counsel for additional processing and issuance of a final decision. See 5 C.F.R.
§ 1201.183(c).
¶2 Outstanding issues of compliance remain as to the appellant’s back pay and
interest, information provided to the Social Security Administration for
withholdings, and the appellant’s Thrift Savings Plan. The agency submitted
argument and evidence on June 16, August 11, October 10, October 20, and
November 21, 2017, which have been entered into the record in MSPB Docket
No. SF-0752-13-0142-X-1. The Board’s Acknowledgment Order for MSPB
Docket No. SF-0752-13-0142-X-1, dated June 16, 2017, includes instructions for
how the parties must proceed in that matter, which is pending before the Board’s
Office of General Counsel.
3
¶3 All subsequent filings should refer to MSPB Docket No. NY-0752-13-0142-
X-1 and should be faxed to (202) 653-7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶4 The agency is reminded that if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the Office of the General Counsel of the Merit
Systems Protection Board to show cause why the Board should not impose
sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(c).
The Board’s authority to impose sanctions includes the authority to order that the
responsible agency official “shall not be entitled to receive payment for service as
an employee during any period that the order has not been complied with.”
5 U.S.C. § 1204(e)(2)(A).
¶5 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.