UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE ROSARIO-FABREGAS, DOCKET NUMBERS
Appellant, NY-0752-10-0127-X-2
NY-0752-10-0127-X-3
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jose Rosario-Fabregas, San Juan, Puerto Rico, pro se.
Elizabeth Moseley, Esquire, and Elizabeth Vavrica, Esquire, Jacksonville,
Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The administrative judge issued compliance initial decisions on September
6 and September 8, 2016, in response to two petitions filed by the appellant to
enforce the Board’s final order reversing his removal. Rosario-Fabregas v.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Department of the Army, MSPB Docket No. NY-0752-10-0127-B-1, Compliance
Remand File, Tab 14, Compliance Initial Decision (B-1 CID); Rosario-Fabregas
v. Department of the Army, MSPB Docket No. NY-0752-10-0127-C-3,
Compliance File, Tab 10, Compliance Initial Decision ( C-3 CID). For the reasons
discussed below, we find the agency in compliance and DISMISS the petition s for
enforcement.
BACKGROUND
¶2 Effective February 12, 2010, the agency removed the appellant from the
position of Biologist (Project Manager), GS-12, Army Corps of Engineers,
Regulatory Division, San Juan, Puerto Rico. B-1 CID at 1-2. The Board ordered
the agency to cancel the removal and reinstate the appellant effective February
12, 2010. B-1 CID at 2. The Board also ordered the agency to provide the
appellant with back pay, interest, and other benefits under the regulations of the
Office of Personnel Management. Id. On December 2, 2011, the agency
retroactively cancelled the appellant’s removal. Id.
First Petition for Enforcement (MSPB Docket No. NY-0752-10-0127-C-1)
¶3 On January 30, 2012, the appellant filed a petition for enforcement, alleging
that the agency had not fully complied with the Board’s order. B-1 CID at 2. On
May 30, 2012, the administrative judge issued a compliance initial decision
denying the petition for enforcement and finding that the agency had complied
with the Board’s order. Rosario-Fabregas v. Department of the Army, MSPB
Docket No. NY-0752-10-0127-C-1, Compliance File, Tab 8, Compliance Initial
Decision. The appellant attempted to file a petition for review of that decision,
but the Board did not receive it because it was mailed to an incorrect address.
B-1 CID at 2. Therefore, the decision became final on July 4, 2012. Id.; see
5 C.F.R. §§ 1201.183(a)(4), 1201.113.
3
Second Petition for Enforcement (MSPB Docket Nos. NY-0752-10-0127-C-2 and
NY-0752-10-0127-B-1)
¶4 On February 19, 2013, the appellant filed another submission with the
Board, which the Board construed as a second petition for enforcement and
forwarded to the administrative judge for initial adjudication. Rosario-Fabregas
v. Department of the Army, MSPB Docket No. NY-0752-10-0127-C-2,
Compliance File, Tab 20, Compliance Initial Decision (C -2 CID) at 3. On
December 3, 2013, the administrative judge issued a compliance initial decision
granting the petition for enforcement in part. C-2 CID at 6. The appellant filed a
petition for review of that decision to the full Board. Rosario-Fabregas v.
Department of the Army, MSPB Docket No. NY-0752-10-0127-C-2, Petition for
Review File, Tab 1.
¶5 In a Remand Order dated September 11, 2014, the Board granted the
petition for review and remanded the petition for enforcement, directing the
administrative judge to consider the appellant’s claim that the agency did not
reimburse him for Federal Employee Group Life Insurance (FEGLI) deductions
for the time he was unemployed. Rosario-Fabregas v. Department of the Army,
MSPB Docket No. NY-0752-10-0127-C-2, Remand Order, ¶ 29 (Sept. 11, 2014).
The Board also directed the administrative judge to consider the appellant’s
argument that, because he was misled by the agency, he missed the 90 -day
deadline under 5 C.F.R. § 1605.13(d) to restore funds he had withdrawn from his
Thrift Savings Plan account. Id. The Board further directed the administrative
judge to order the parties to indicate the status of the request that the Defense
Finance and Accounting Service (DFAS) made to the Social Security
Administration (SSA) in connection with the appellant’s Old Age, Survivors and
Disability Insurance (OASDI) and Medicare deductions. Id.
¶6 On remand, in a compliance initial decision dated September 6, 2016, the
administrative judge found the agency in partial noncompliance with the Board’s
order, and she directed the agency to have DFAS contact SSA in order to
4
determine whether SSA made the correct allocations covering the period between
the appellant’s removal and his reinstatement and provide the Board with
documentation regarding DFAS’s action. B-1 CID at 7.
Third Petition for Enforcement (MSPB Docket No. NY-0752-10-0127-C-3)
¶7 While the remanded petition for enforcement in MSPB Docket No.
NY-0752-10-0127-B-1 was pending before the administrative judge, on October
9, 2014, the appellant filed another submission with the Board, which was
construed as a third petition for enforcement. C-3 CID at 4. The administrative
judge noted that the appellant alleged that the agency made inconsistent
statements regarding the amount of gross back pay owed to him. C-3 CID at 6.
Accordingly, the administrative judge ordered the agency to have DFAS
determine the amount of the gross back pay and submit a clear explanation of
DFAS’s computations. C-3 CID at 7.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶8 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
¶9 As explained above, there are two outstanding compliance issues. In the
compliance initial decision issued in MSPB Docket No. NY -0752-10-0127-B-1,
the administrative judge ordered the agency to have DFAS contact SSA in order
to determine whether SSA made the correct allocations covering the period
5
between the appellant’s removal and his reinstatement. B-1 CID at 7. In the
compliance initial decision in MSPB Docket No. NY-0752-10-0127-C-3, the
administrative judge ordered the agency to demonstrate that DFAS paid the
appellant the correct amount of gross back pay. Both issues are now before us on
referral from these two compliance initial decisions. See 5 C.F.R.
§ 1201.183(b)-(c).
Gross Back Pay
¶10 The agency submitted a statement on October 24, 2016, detailing the
amount of back pay paid to the appellant. Rosario-Fabregas v. Department of the
Army, MSPB Docket No. NY-0752-10-0127-X-3, Compliance Referral File
(X-3 CRF), Tab 3. The DFAS specialist who processed the back pay award set
forth her calculations regarding gross and net back pay, including interes t paid on
the back pay amount. Id. at 9, 14. The appellant filed multiple objectio ns to
these calculations. X-3 CRF, Tabs 4, 5, 6, 10, 11, 13, 14, 15. Many of his
objections concerned the underlying merits of his case, while others addressed his
views on the competence of agency employees. None presented a specific
objection to the back pay or interest calculations. Accordingly, we find that the
agency properly calculated and paid the back pay and interest due the appellant.
OASDI/Medicare
¶11 The DFAS specialist’s October 13, 2016 declaration also explained the
deduction of Social Security and Medicare taxes. X-3 CRF, Tab 3 at 11. The
specialist stated that she had spoken with an analyst at SSA regarding the yearly
allocations for back pay for each calendar year of the relevant period and that
DFAS was awaiting confirmation from SSA that the amounts matched their
figures and that the updates were being processed. Id. at 13-14.
¶12 In the appellant’s submission dated November 14, 2016, he stated that the
agency did not provide a clear explanation of its deductions and that it had not yet
sent him the SSA-L 191 form. X-3CRF, Tab 4 at 6.
6
¶13 The Board issued an order on June 9, 2017, directing the agency to submit
documentation of how it calculated the OASDI and Medicare deductions for each
pay period and provide a clear explanation that the deductions were properly
allocated to each pay period within the calendar year. Rosario-Fabregas v.
Department of the Army, MSPB Docket No. NY-0752-10-0127-X-2, Compliance
Referral File (X-2 CRF), Tab 3.
¶14 The agency then provided a declaration from Erron Jackson, a Branch Chief
for Civilian Pay Operations at DFAS, dated October 20, 2017. X-2 CRF, Tab 12.
In the declaration, Mr. Jackson stated that he had reviewed an au dit of the
appellant’s back pay payments, as well as the allocation of those payments as
reported to the Social Security administration. Id. at 5. Mr. Jackson reported that
the appellant’s total back pay was $150,406.08. Id. Of this, $148,862.48 was
paid to the appellant in January 2012. Id. The remaining $1,543.60 was paid in
2013. Id.
¶15 The maximum wage limitation for OASDI in 2012 was $110,100, and the
employee OASDI tax rate was 4.2%. Id. at 6. The employee OASDI tax rate for
2013 was 6.2%. Id. Therefore, the appellant’s back pay exceeded the maximum
wage limitation for OASDI in 2012, but not in 2013. Id. Accordingly, DFAS
deducted a total of $4,719.91 in OASDI from the back pay award , ($110,100 x
4.2% = $4,624.20) + ($1,543.60 x 6.2% = $95.71) = $4,719.91. Id.
¶16 Mr. Jackson explained that the entire back pay award was subject to
Medicare deductions, and the appellant had $2,180.89 (1.45%) deducted from the
award. Id. Mr. Jackson went on to state that DFAS had worked with SSA to
address the allocation of the appellant’s back pay but that, under SSA’s standard
procedure, it takes up to a year after the end of a current year for reported wages
to appear on an individual’s record. Id. at 7. He stated that DFAS had confirmed
that it had provided all necessary documentation to SSA to enable it to properly
allocate the appellant’s wages. Id. at 7. A copy of DFAS’s request to SSA to
allocate the appellant’s back pay was attached. See id. at 22.
7
¶17 The appellant responded on October 26, 2017, all eging that the agency’s
calculations of his back pay were incorrect. X-2 CRF, Tab 13. The appellant did
not specify what he believed the correct back pay amounts to be, instead alleging
that incorrect codes were entered on his Standard Form 50 (SF-50), leading,
presumably, to DFAS processing the back pay incorrectly. See id. at 5-6. The
appellant also alleged that the SSA statement he received in September 2017
contained errors and miscalculations, but he did not identify those alleged errors.
Id. at 7. Similarly, in an additional response dated October 18, 2018, the
appellant alleged that SSA’s allocations were not correct, but did not identify any
specific inaccuracies. X-3 CRF, Tab 16 at 5.
¶18 On November 26, 2018, the appellant submitted a “Motion to Initiate
Enforcement Procedures,” in which he reiterated his claim that “SSA personal
allocations from 2010 until present are not correct.” X-3 CRF, Tab 17 at 5.
Again, the appellant did not identify which allocations he believes to be incorrect.
¶19 On April 9, 2019, the appellant submitted a pleading requesting that the
Board order the agency to issue two corrected SF-50s in response to the Board’s
orders of November 30, 2011, and July 1, 2016. X-3 CRF, Tab 18 at 11. The
appellant did not provide any support for his claim that additional SF-50s were
required to effectuate the Board’s order regarding back pay and OASDI
contributions. In the absence of any basis for the issuance of new SF -50s, we
decline to grant the appellant’s request for a Board order on this issue.
¶20 On May 9, 2019, the appellant submitted a “Motion for Adjudication
Ripeness,” in which he stated that two of his later-filed Board appeals were
pending settlement and requested adjudication of his compliance matters. X-3
CRF, Tab 19. As this instant decision constitutes the Board’s adjudication of this
compliance matter, the appellant’s motion is moot. Moreover, the appellant’s
later-filed removal appeals do not bear on the adjudication of this compliance
matter. Accordingly, we deny the appellant’s motion.
8
¶21 As noted above, the agency has provided evidence that it is now in
compliance with the Board’s order. The agency has cancelled the appellant’s
removal and reinstated him, effective February 12, 2010, and has provided the
appellant with back pay, interest, and other benefits. The agency indicated that it
paid the appellant back pay in the amount of $150,406.08, deducting $4,719.91
for OASDI benefits and $2,180.89 for Medicare. The appellant has not alleged
any specific error in these amounts. Therefore, we find that the agency has paid
the appellant the appropriate amount of back pay and deducted the appropriate
amount of OASDI benefits. We also find that the agency h as provided an
adequate explanation of how the back pay and benefits amounts were determined .
¶22 In light of the agency’s evidence of compliance, we find the agency in
compliance and dismiss the petitions for enforcement. This is the final decision
of the Merit Systems Protection Board in this compliance proceeding. Title 5 of
the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R.
§ 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS 2
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 below 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
2
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.
9
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 choice s 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.
(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 par ticular
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.
10
(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
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____, 137 S. Ct. 1975 (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 based on race, color, religion, sex, nationa l 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, th e
address of the EEOC is:
11
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:
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 3. 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).
3
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 President 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 jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
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
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.