Juan Arredondolopez v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUAN WILLIAM DOCKET NUMBER
ARREDONDOLOPEZ, PH-0714-17-0438-C-1
Appellant,
v.
DATE: June 28, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Juan William Arredondolopez, Shoemakersville, Pennsylvania, pro se.
Stacey Conroy, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the compliance initial decision, which denied the
appellant’s petition for enforcement. Generally, we grant petitions such as these
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 case; 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 material 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
neither party has established any basis under section 1201.115 for granting the
petition or cross petition for review. Therefore, we DENY the petition for review
and the cross petition for review and AFFIRM the compliance initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s new allegation of noncompliance to the regional
office for docketing as a petition for enforcement. 5 C.F.R. § 1201.182(a).
BACKGROUND
¶2 On September 18, 2017, the appellant appealed the agency’s decis ion to
remove him from his position as Chief Supervisory Radiologic Technologist
(CSRT), GS-11, at the agency’s Corporal Michael J. Crescenz Medical Center in
Philadelphia, Pennsylvania. Arredondolopez v. Department of Veterans Affairs,
MSPB Docket No. PH-0714-17-0438-I-1, Initial Appeal File (IAF), Tab 1. After
holding a hearing, the administrative judge issued an initial decision finding that
the agency failed to prove its charges and reversing the appellant’s removal. IAF,
Tab 30. The administrative judge ordered the agency to retroactively restore the
appellant, effective September 12, 2017, pay him the appropriate amount of back
pay, with interest, and adjust his benefits with appropriate credits and deductions.
3
Id. The initial decision became the final decision of the Board on March 20,
2018, after neither party filed a petition for review. See 5 C.F.R. § 1201.113.
¶3 On April 13, 2018, the appellant filed a petition for enforcement of the
Board’s final decision alleging that the agency had failed to comply with the
Board’s order to reinstate him. Compliance File (CF), Tab 1. In particular, he
alleged that the agency had improperly abolished his prior position to prevent him
from returning to it and improperly detailed him to a position as an
Administrative Specialist in the Research and Development Service, a position
which he alleged was not substantially similar to his prior position. Id. at 2-3. In
response, the agency asserted that it had begun contemplating abolishing the
appellant’s position as redundant in fiscal year 2015 and concl uded the process in
January 2018. CF, Tab 3 at 4-5. The agency further represented that there were
no vacant supervisory GS-11 positions, but that it was actively searching for one
in which to place the appellant permanently and that it planned to reassign him to
a supervisory position in Patient Care Services (PCS), pending classification of
the position. Id. at 5.
¶4 On June 18, 2018, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement. CF, Tab 4,
Compliance Initial Decision (CID). 2 The administrative judge found that the
agency proved that it had a compelling reason for not returning the appellant to
his former position based on declarations from agency officials attesting that the
former position had been abolished. CID at 3-4. The administrative judge further
found that the appellant was returned as nearly as possible to the status quo ante
because he was in the same position that he would have been had the agency not
2
The compliance initial decision was erroneously dated June 22, 2018. CID at 1. On
August 2, 2018, the administrative judge issued an Erratum Order correcting the date to
be June 18, 2018. CF, Tab 6.
4
removed him, abolished his position, and exercised its discretion to temporarily
detail him while it searched for another position for him. CID at 4-5.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a cross petition for review asserting that the
appellant’s petition is untimely filed, and it has also filed a response opposing the
appellant’s petition on the merits. PFR File, Tab 4. The appellant has filed a
reply. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
We deny the agency’s cross petition for review.
¶6 In its cross petition for review, the agency argues that the appellant’s
petition for review was untimely filed on July 26, 2018, three days after the
July 23, 2018 deadline. PFR File, Tab 4 at 5. The agency further requests
reconsideration of the Office of the Clerk of the Board’s decision to accept the
petition as timely. Id. at 5-6. We reject the agency’s arguments. The record
reflects that the compliance initial decision was erroneously dated June 22, 2018,
and thus, erroneously notified the appellant that the deadline for filing his petition
for review was July 27, 2018, thirty-five days after June 22, 2018. CID at 5. The
appellant filed his petition for review on July 26, 2018. PFR File, Tab 1. On
August 2, 2018, the Office of the Clerk of the Board accepted the appellant’s
petition as timely, noting that it was filed in accordance with the finality date set
forth in the compliance initial decision. 3 PFR File, Tab 2. Also on August 2,
2018, the administrative judge issued an Erratum Order correcting the date of the
compliance initial decision to June 22, 2018. CF, Tab 6.
3
The agency argues that it was prejudiced by this 3-day delay because, but for the
administrative error, it “would only [have] had to respond to the PFR on the basis of
timeliness, not the merits, which would have conserved valuable resources.” PFR File,
Tab 4 at 5. We are not persuaded by this argument. It is equally as likely that, had the
appellant been informed of the proper deadline, he would have timely filed his petition
for review, necessitating the agency to respond to the merits.
5
¶7 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of i ssuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(e). However, the Board will excuse the late filing of a petition for
review on a showing of good cause for the delay. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, a party must show that he exercised
due diligence or ordinary prudence under the particular circumstances of the case.
Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune that
similarly shows a causal relationship to his inability to timely file his petitio n.
Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8 Although we find that the appellant’s petition was not filed within 35 days
of the correct date of the initial decision, we find that good cause exists to waive
the filing deadline because the administrative judge erred in informing the
appellant of the deadline for filing a petition for review and the appellant’s
petition was submitted in accordance with the administrative judge’s instructions.
Accordingly, we accept the appellant’s petition as timely filed.
We deny the appellant’s petition for review.
¶9 The agency bears the burden of establishing that it has complied with a final
Board order. Spates v. U.S. Postal Service, 70 M.S.P.R. 438, 441 (1996).
Compliance requires that the appellant be returned as nearly as possible to the
status quo ante consistent with the terms of the Board’s final order. Foreman v.
U.S. Postal Service, 82 M.S.P.R. 332, 336 (1998). Contentions pertaining to the
6
enforcement of a final Board decision are initially considered by the regional or
field office that issued the initial decision. 5 C.F.R. § 1201.182(a); see Smith v.
Department of the Army, 89 M.S.P.R. 82, ¶ 6 (2001).
¶10 We discern no error in the administrative judge’s finding that the agency
had a compelling reason for not returning the appellant to his former position
because it had been abolished. CID at 3-4; see, e.g., Currier v. U.S. Postal
Service, 72 M.S.P.R. 191, 199 (1996). On review, the appellant reiterates his
argument below that the agency had improper motives for abolishing his position.
PFR File, Tab 1 at 6-7. However, the administrative judge considered and
rejected such an argument. CID at 3-4. Thus, the appellant’s argument amounts
to mere disagreement with the administrative judge’s finding and does not
provide a basis for reversal. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services, 33 M.S.P.R. 357, 359 (1987) (same). The appellant also
disputes the agency’s assertion that his former position was abolished due to the
lack of funding and submits new evidence, which he contends shows that the
budget for full-time employees has steadily risen from 2015 to 2017. PFR File,
Tab 1 at 7, 119-21. The appellant, however, has not explained why he could not
have submitted such evidence, which appears to date back to 2014 and 2016,
before the record below closed, and we decline to consider it for the first time on
review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
(stating that the Board will not consider evidence or argume nt 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). 4
4
For the same reason, we also decline to consider the appellant’s argument raised for
the first time in his reply that the agency’s action violates its handbook because the
7
¶11 The appellant also contends that the agency did not actually abolish his
position because another employee in the Diagnostic Imaging Service was
assigned his duties. PFR File, Tab 6 at 9, 13. However, this is consistent with
the agency’s representation that the administrative duties previously under the
appellant’s abolished position were divided between the Administrative Officer
and PACS Administrator. CF, Tab 3 at 22. Finally, the appellant disputes the
merits of the agency’s decision to abolish his position and submits new
documentation showing that similar organizational structures, in which a Chief
Technologist oversees supervisors and leads, exist throughout the agency. PFR
File, Tab 6 at 10, 16-18. He has not, however, explained why he could not have
submitted such information below. Regardless, the Board lacks jurisdiction over
matters concerning the agency’s authority to abolish positions. See D’Leo v.
Department of the Navy, 53 M.S.P.R. 44, 48 (1992).
¶12 Regarding his temporary assignment, the appellant reiterates his argument
that the agency made no showing that the duties and responsibilities of his
temporary assignment as an Administrative Specialist in the Research and
Development Service are substantially similar to his former duties and
responsibilities as a Chief Supervisory Radiologic Technologist. 5 PFR File,
Tab 1 at 8. In response, the agency points out that it merely temporarily detailed
the appellant to the Administrative Services position. PFR File, Tab 4 at 7.
Additionally, the agency has acknowledged that the appellant’s temporary
detail notice was vague and did not specify the duration of the detail. PFR File, Tab 6
at 8, 11-12.
5
The appellant also argues for the first time on review that there was an available
GS-11 position in the Diagnostic Imaging Service to which he could have been
assigned. PFR File, Tab 6 at 10. In support of his argument, he submits new evidence
dated after the close of the record below consisting of a vacancy announcement for the
position of Diagnostic Radiologic Technologist (Quality Management), which was open
from June 22 to July 13, 2018. Id. at 15. This position, however, is not a supervisory
position. Id.8
assignment was not a supervisory position, but that no vacant funded supervisory
GS-11 positions were available, and it was actively working to reclassifying the
GS-11 PCS position to add supervisory duties. CF, Tab 3 at 8.
¶13 The administrative judge found that the agency had not yet reassigned the
appellant to a new position. CID at 4. He further found that the appellant was in
no worse position than had the agency not removed him but instead had abolished
his position and temporarily assigned him duties. Id. at 4-5. We discern no error
in the administrative judge’s finding that the agency reinstated the appellant as
nearly as possible to the status quo ante when it temporarily assigned him duties
while searching for a comparable supervisory GS-11 position to which it could
permanently reassign him.
We forward the appellant’s new allegation of noncompliance to the regional
office for docketing.
¶14 After the compliance initial decision was issued, on July 6, 2018, the
agency issued the appellant a management directed reassignment to the position
of Supervisory Administrative Specialist (GS-11) with PCS, effective August 5,
2018. PFR File, Tab 6 at 19. However, the record does not contain a description
of the duties and responsibilities of this position. Thus, it is not clear whether
such a position is substantially similar to the appellant’s former Chief
Supervisory Radiologic Technologist position. Additionally, the agency asserts
that, in lieu of accepting this position, the appellant applied for and accepted a
position as an Administrative Specialist in the Research and Development
Service, the same position to which he had been temporarily assigned. PFR File,
Tab 4 at 9-10. The appellant appears to concede that he accepted the
Administrative Specialist position, but he argues that he did so rather than risk
being removed for not meeting the requirements of the PCS Supervisory
Administrative Specialist position due to not having a nursing background. PFR
File, Tab 6 at 9.
9
¶15 Thus, the evidence before the Board does not show whether the agency has
complied with the Board’s final decision with regard to the appellant’s
reinstatement. Because contentions pertaining to the enforcement of a final
Board decision should be considered first by the regional or field office that
issued the initial decision, we forward the appellant’s allegation that the agency’s
July 6, 2018 management directed reassignment failed to comply with the Board’s
order to the Northeastern Regional Office for the administrative judge to consider
as a new petition for enforcement of the Board’s final decision. See 5 C.F.R.
§ 1201.182(a); Smith, 89 M.S.P.R. 82, ¶ 6.
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
11
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination base d on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S . mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Presi dent on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent ju risdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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 , 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.