Rosario-Fabregas v. Merit Systems Protection Board

833 F.3d 1342, 2016 U.S. App. LEXIS 14990, 2016 WL 4363176
CourtCourt of Appeals for the Federal Circuit
DecidedAugust 16, 2016
Docket2015-3102
StatusPublished
Cited by53 cases

This text of 833 F.3d 1342 (Rosario-Fabregas v. Merit Systems Protection Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosario-Fabregas v. Merit Systems Protection Board, 833 F.3d 1342, 2016 U.S. App. LEXIS 14990, 2016 WL 4363176 (Fed. Cir. 2016).

Opinions

Dissenting opinion filed by Circuit Judge DYK.

HUGHES, Circuit Judge.

Mr. Jose Rosario-Fabregas seeks review of a final decision 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 Engineers (Corps) until he was fired in February 2010. In November 2011, the Board determined that the termination 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 supervisor, Mr. Sindul-fo- Castillo, stating that his symptoms, which included severe anxiety, paranoia, chronic insomnia, marked irritability, frequent panic attacks, and aggressive episodes, were not improving. Dr. Rodriguez-Velez recommended either: (1) referring Mr. Rosario for partial hospitalization; (2) relocating Mr. Rosario’s working area; or (3) providing reasonable accommodation for three months to evaluate whether Mr. Rosario was emotionally stable to continue working.

One month later, Mr. Rosario submitted another letter to Mr. Castillo from Dr. Rodriguez-Velez, which recommended 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 proposed schedule, and if he was requesting leave for the hours he was not working each week or if he was requesting 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 continue 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 aggressive 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. [1345]*1345Rosario 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 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 adequate medical documentation that would allow the agency to evaluate his request to return to work.

On November 14, 2012, Mr. Rosario forwarded a report from Dr. Rodriguez-Velez which outlined his treatment regimen, and explained that Mr. Rosario could exercise necessary impulse control and perform his duties at an intermediate capacity, if in a structured and predictable 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 constructively 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 jurisdiction.

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) arbitrary, 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 adjudicate 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). Appeal-able agency 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 [1346]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Andrea Pearson v. Department of the Treasury
Merit Systems Protection Board, 2026
Shantella Barge v. Department of Defense
Merit Systems Protection Board, 2026
Bryant v. MSPB
Federal Circuit, 2025
Faris v. MSPB
Federal Circuit, 2025
Carl Newhouse v. Department of the Air Force
Merit Systems Protection Board, 2025
Christopher T Gabree v. United States Postal Service
Merit Systems Protection Board, 2025
Rocky Freudenberg v. Department of Veterans Affairs
Merit Systems Protection Board, 2024
Kirk I Shepperd v. Department of the Army
Merit Systems Protection Board, 2024
Shannon K Nishimura v. Department of the Navy
Merit Systems Protection Board, 2024
Joel Turner v. United States Postal Service
Merit Systems Protection Board, 2024
Alfredo Ortiz v. United States Postal Service
Merit Systems Protection Board, 2024
Joel Erickson v. Department of Transportation
Merit Systems Protection Board, 2024
Kyle Milowski v. Department of Homeland Security
Merit Systems Protection Board, 2024
Kyle Shirley v. Department of Justice
Merit Systems Protection Board, 2024
Harris v. Defense
Federal Circuit, 2024
Jimmy Davis v. United States Postal Service
Merit Systems Protection Board, 2024
Keron Sealey v. Department of Defense
Merit Systems Protection Board, 2024
Joyce Bullock v. Department of the Air Force
Merit Systems Protection Board, 2024

Cite This Page — Counsel Stack

Bluebook (online)
833 F.3d 1342, 2016 U.S. App. LEXIS 14990, 2016 WL 4363176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosario-fabregas-v-merit-systems-protection-board-cafc-2016.