                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSE ROSARIO-FABREGAS,                          DOCKET NUMBERS
                   Appellant,                        NY-0752-10-0127-C-2
                                                     NY-0752-10-0127-X-1
                  v.

     DEPARTMENT OF THE ARMY,                         DATE: SEPTEMBER 11, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Jose Rosario-Fabregas, San Juan, Puerto Rico, pro se.

           Elizabeth Vavrica, Esquire, Jacksonville, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         On December 3, 2013, the administrative judge issued a compliance initial
     decision finding the agency in noncompliance with the Board’s November 30,
     2011 Final Order reversing the appellant’s removal.              MSPB Docket No.
     NY-0752-10-0127-C-2 (C-2), Compliance File, Tab 20, Compliance Initial


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Decision (CID) at 4-5; MSPB Docket No. NY-0752-10-0127-I-1 (I-1), Petition
     for Review (PFR) File, Tab 21 at 2, 5. The administrative judge ordered the
     agency to reassess its handling of several matters. C-2, CID at 6-7. The agency
     did not take action under 5 C.F.R. § 1201.183(6) within the time limit for doing
     so, and therefore this matter was referred to the Board for processing under the
     enforcement provisions of 5 C.F.R. § 1201.183(c)(1).             See 5 C.F.R.
     § 1201.183(b).      Meanwhile, the appellant filed a petition for review of the
     compliance initial decision.     C-2, PFR File, Tab 1.    We address both the
     compliance referral action and the petition for review of the compliance initial
     decision in this Order.
¶2         For the reasons discussed below, we find the agency in compliance
     regarding the matters that the administrative judge ordered it to address in her
     compliance initial decision. We therefore DISMISS the petition for enforcement
     concerning those issues. However, we GRANT the petition for review of the
     compliance initial decision and REMAND the petition for enforcement for the
     administrative judge address some other issues with which there are still
     outstanding questions of compliance.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶3         Effective February 12, 2010, the agency removed the appellant from the
     position of GS-12 Project Manager (Biologist). I-1, Initial Appeal File, Tab 4 at
     22, 25-27. On November 30, 2011, the Board issued a Final Order reversing the
     removal on due process grounds. I-1, Final Order at 2, 5 (Nov. 30, 2011). The
     Board’s decision contained the standard language ordering status quo ante relief.
     Final Order at 5-6. The agency retroactively cancelled the appellant’s removal on
     December 2, 2011. MSPB Docket No. NY-0752-10-0127-C-1 (C-1), Compliance
     File, Tab 6 at 7.
¶4         The appellant filed a petition for enforcement on January 30, 2012, arguing
     that the agency had not complied with the Board’s order in several ways. C-1,
                                                                                            3

     Compliance File, Tab 1. On May 30, 2012, the administrative judge issued a
     compliance initial decision finding the agency in compliance and denying the
     petition. C-1, CID (May 30, 2012). The appellant attempted to file a petition for
     review of that decision.     However, he sent the petition to the U.S. Court of
     Appeals for the Federal Circuit by mistake; therefore, the Board never received it
     nor docketed it.    C-2, Compliance File, Tab 3 at 4.         That compliance initial
     decision became final on July 4, 2012. C-1, CID at 5; see 5 C.F.R. § 1201.113.
¶5         On February 19, 2013, the appellant filed another petition for enforcement.
     C-2, Compliance File, Tab 1. He alleged that the agency was in noncompliance
     as to his (1) back pay, C-2, Compliance File, Tab 3 at 5, Tab 5 at 5, Tab 13 at 5;
     (2) Thrift Savings Plan (TSP) contributions, id., Tab 1 at 4-5, Tab 3 at 5, Tab 5 at
     6-7, Tab 7 at 4-6, Tab 13 at 7-8; (3) Federal Employee Health Benefit (FEHB)
     deductions, id., Tab 1 at 5-6, Tab 3 at 5, Tab 5 at 6-19, Tab 7 at 5-6, Tab 13 at
     5-6, 11; (4) Federal Employee Group Life Insurance (FEGLI) deductions, id., Tab
     13 at 6-7; (5) Social Security (OASDI) tax deductions, id., Tab 13 at 8; and (6)
     and income tax reporting requirements, id., Tab 13 at 8-10, Tab 17 at 4-5.
¶6         The administrative judge detected discrepancies in several matters and
     granted the petition for enforcement in part.        C-2, CID at 4-5.     She issued a
     compliance initial decision ordering the agency to reassess its handling of the
     TSP contributions, FEHB deductions, and OASDI and Medicare tax deductions,
     provide explanatory statements clarifying its handling of these matters, and make
     and explain any necessary corrections. C-2, CID at 6-7. The appellant has filed a
     petition for review and the agency has filed a response. 2 C-2, PFR File, Tabs 1,
     5.



     2
       The appellant filed three additional submissions as well. C-2, PFR File, Tabs 3, 4, 6.
     These submissions were filed outside the time limit for filing a petition for review, and
     the Board’s regulations do not otherwise provide for them. See 5 C.F.R. § 1201.114(a).
     Therefore, we have not considered these submissions.
                                                                                          4

¶7         Meanwhile, the agency failed to make a timely submission with the Clerk of
      the Board under 5 C.F.R. § 1201.183(a)(6) as required when the administrative
      judge made her finding of noncompliance.        Therefore, while the petition for
      review was pending, the matter was referred for processing under the enforcement
      provisions of 5 C.F.R. § 1201.183(c). MSPB Docket No. NY-0752-10-0127-X-1
      (X-1), Compliance Referral File, Tab 1; see 5 C.F.R. § 1201.183(b). The agency
      responded, asserting that it is in substantial compliance, with the exception of the
      OASDI and Medicare tax deductions, for which it is awaiting action from the
      Social Security Administration (SSA). X-1, Compliance Referral File, Tabs 2-4.
      The appellant has replied, arguing that the agency is still in noncompliance. X-1,
      Compliance Referral File, Tabs 5-6.

      Compliance Referral File (X-1)
¶8         In accordance with the orders issued by the Clerk of the Board and the
      administrative judge, the agency reviewed the actions taken in connection with
      the appellant’s TSP account and confirmed that they had been processed correctly
      as of March 14, 2014. X-1, Compliance Referral File, Tab 3 at 5-6. The agency
      explained the discrepancy between its initial attempt to allocate the TSP
      deductions and its March 14, 2013 allocation, the latter of which the Defense
      Finance and Accounting Service (DFAS) confirmed was correct.            Id. at 5-6,
      18-41.
¶9         The agency also reviewed the FEHB deductions and determined that the
      appellant requested and was entitled to a refund of the premiums from the pay
      period ending on February 27, 2010, through the pay period ending on
      December 3, 2011. Id. at 4-5. It calculated the total premiums from this period
      as amounting to $3,649.08 and paid this amount to the appellant. Id. at 4, 10-12.
¶10        Finally, the agency explained that DFAS had requested SSA to process the
      appellant’s OASDI and Medicare tax deductions and provided SSA complete and
      accurate information to carry out this request.     Id. at 6, 13-17.   The agency
                                                                                               5

      asserted that this was the last step within DFAS’s control to accomplish
      compliance with the administrative judge’s order. Id. at 6.
¶11         The appellant responded, arguing that the agency’s evidence of compliance
      pertains only to the administrative judge’s December 13, 2013 compliance initial
      decision and not to the Board’s November 30, 2011 Final Order.                        X-1,
      Compliance Referral File, Tab 1 at 4. In this regard, we find that the purpose of
      the compliance action and the compliance initial decision is to ensure the
      agency’s compliance with the original status quo ante relief order.              5 C.F.R.
      §§ 1201.182-1201.183.       The only issue in the compliance referral action is
      whether the agency has carried out the administrative judge’s order in the
      compliance initial decision. 3 5 C.F.R. § 1201.183(c)(1).
¶12         The appellant also argues that the agency’s original erroneous removal
      action and its erstwhile failure to comply with the Board’s November 11, 2013
      Final Order should cast doubt on its present assertions of compliance.                X-1,
      Compliance Referral File, Tab 5 at 4-5, 18-19. We understand the appellant’s
      frustration with the agency’s missteps, but we must objectively evaluate the
      agency’s evidence of compliance on the record evidence and argument.
¶13         The appellant further argues that the errors that the agency committed in the
      underlying removal action and its compliance efforts lend support to his



      3
         In the compliance referral matter, the appellant makes numerous allegations of
      deficiencies in the compliance initial decision and raises several issues of
      noncompliance for the first time. X-1, Compliance Referral File, Tab 5 at 5, 8-14, Tab
      6 at 4-6. To the extent that the appellant believes that the compliance initial decision
      did not address all issues of noncompliance, the appropriate action is either to file a
      petition for review of the compliance initial decision or a new petition for enforcement.
      See 5 C.F.R. §§ 1201.182(a), 1201.183(a)(4). Thus, these matters are not properly
      before the Board in this compliance referral action. We will review these allegations in
      connection with the appellant’s petition for review of the compliance initial decision to
      the extent that he raised them in a proper filing related to his petition for review of the
      compliance initial decision. To the extent that the appellant is attempting to raise new
      allegations of noncompliance, he must file a new petition for enforcement. If he
      chooses to do so, he must show good cause for his filing delay. 5 C.F.R. § 1201.182(a).
                                                                                       6

      arguments on the merits of his other pending appeals. 4 X-1, Compliance Referral
      File, Tab 5 at 5-6, 9-10, 15-18, 20, Tab 6 at 7. To the extent that the appellant
      believes that this is the case, he must raise this argument in those appeals. The
      instant compliance referral is not the proper place to make arguments related to
      those other appeals.
¶14        The appellant also alleges that the agency’s difficulty in complying with the
      Board’s November 30, 2011 Final Order was the result of agency officials
      purposely using an incorrect code on the Standard Form (SF) 50 cancelling his
      removal. X-1, Compliance Referral File, Tab 5 at 6-7. It is unclear what remedy
      the appellant seeks for this alleged conduct. To the extent that he wishes the
      Board to sanction agency officials for this under 5 U.S.C. § 1204(e)(2)(A), we
      decline to do so.      The purpose of sanctions under this provision is to obtain
      compliance and, once compliance is achieved, sanctions are inappropriate.
      Martin v. Department of Justice, 99 M.S.P.R. 59, ¶ 16 (2005), aff’d, 188 F. App’x
      994 (Fed. Cir. 2006). Because we find the agency in compliance under the terms
      of the compliance initial decision, there is no basis to impose sanctions in the
      context of the compliance referral action.
¶15        The appellant also requests that the Board order the agency to provide the
      name of the agency official responsible for complying with its order in
      accordance with 5 C.F.R. § 1201.183(a)(2). X-1, Compliance Referral File, Tab 5
      at 14-15. In light of our finding, infra ¶ 25, that the administrative judge shall
      order the agency to provide this information on remand, and because we find that
      the agency has carried out the order in the compliance initial decision, we need
      not resolve this issue here. See Martin, 99 M.S.P.R. 59, ¶ 16.

      4
        The appellant currently has three other appeals pending before the Board: an
      individual right of action appeal, Rosario-Fabregas v. Department of the Army, MSPB
      Docket No. NY-1221-11-0253-B-1; a constructive suspension appeal, Rosario-Fabregas
      v. Department of the Army, MSPB Docket No. NY-0752-13-0167-I-1; and a second
      removal appeal, Rosario-Fabregas v. Department of the Army, MSPB Docket No.
      NY-752-13-0142-I-2.
                                                                                                7

¶16         The appellant requests that the Board order an audit of the agency’s
      compliance actions by an independent firm. X-1, Compliance Referral File, Tab
      5 at 20-21. Even assuming that the Board has the authority to order such an
      audit, we have no procedures in place for doing so. We deny the appellant’s
      request.      The extant record in this case is sufficient to resolve the issue of
      compliance with the December 3, 2013 compliance initial decision.
¶17         Finally, the appellant requests that the Board sanction various agency
      officials for the agency’s noncompliance. X-1, Compliance Referral File, Tab 5
      at 20-21, Tab 6 at 5-6. Because the agency is now in compliance, pending actions
      from SSA, we decline to impose sanctions. See Martin, 99 M.S.P.R. 59, ¶ 16.
¶18         Having reviewed the agency’s and the appellant’s submissions, we find that
      the agency adequately addressed all of the issues that the administrative judge
      ordered it to address, and that the appellant has not rebutted the agency’s proof of
      compliance. Accordingly, we find that the agency is in compliance under the
      terms of the administrative judge’s December 3, 2013 compliance initial
      decision. 5

      Petition for Review of the Compliance Initial Decision (C-2, PFR File)
¶19         On review, the appellant argues that the administrative judge failed to
      acknowledge that the agency did not meet the original 60-day deadline for
      complying with the Board’s November 30, 2011 Final Order. C-2, PFR File, Tab
      1 at 5; I-1, PFR File, Tab 21 at 5-6. We acknowledge that the agency did not
      achieve compliance by the original deadline, but the significance of that fact is
      unclear in the context of this petition for review.


      5
        In its response to the appellant’s petition for review of the compliance initial decision,
      the agency argues that the FEHB issue was addressed in the first compliance initial
      decision dated May 30, 2012, that the appellant was precluded from raising it again in
      the instant petition for enforcement, and that the administrative judge should not have
      addressed it in her December 3, 2013 compliance initial decision. C-2, PFR File, Tab 5
      at 5-6. Because we find that the agency is now in compliance on this matter, the issue
      is moot.
                                                                                          8

¶20         The appellant also argues that the administrative judge failed to address his
      argument regarding FEGLI deductions. C-2, PFR File, Tab 1 at 5-6. We agree.
      An initial decision must identify all material issues of fact and law,      summarize
      the evidence, resolve issues of credibility, and include the administrative judge’s
      conclusions of law and her legal reasoning, as well as the authorities on which
      that reasoning rests. Spithaler v. Office of Personnel Management, 1 M.S.P.R.
      587, 589 (1980). Although the agency argues that the appellant has not yet made
      an election as to whether he wants continuous coverage or a reimbursement of his
      FEGLI premiums, C-2, PFR File, Tab 5 at 7-9, we will remand for the
      administrative judge to adjudicate this issue in the first instance.
¶21         The appellant also alleges that various actions that the agency took during
      the compliance proceedings were acts of retaliation. C-2, PFR File, Tab 1 at 6.
      The appellant requests that the Board issue “straightforward” orders so that the
      agency has less opportunity to commit such actions. Id. Apart from this, it does
      not appear that the appellant wishes the Board to take any action based on this
      information.
¶22         The appellant disagrees with the administrative judge’s analysis of his
      claim regarding restoration of TSP withdrawals. C-2, PFR File, Tab 1 at 6-7.
      Specifically, the appellant alleged below that he withdrew funds from his TSP
      account to cover living expenses during his period of unemployment, and that the
      agency incorrectly advised him that it was not possible to restore the withdrawals.
      C-2, Compliance File, Tab 13 at 8. Thus, he argues that he missed his 90-day
      window to restore the withdrawn funds.              See 5 C.F.R. § 1605.13. The
      administrative judge correctly found, however, that agencies do not have a duty to
      provide notice of that right. C-2, CID at 6 n.3 (citing Crazy Thunder-Collier v.
      Department of the Interior, 115 M.S.P.R. 82, 86-87 (2010)).              The appellant
      argues on review that his situation is different because he is not merely alleging
      that the agency failed to inform him of his right to restore his TSP withdrawals;
                                                                                        9

      he is alleging that it affirmatively misled him into believing that he could not do
      so. C-2, PFR File, Tab 1 at 6-7.
¶23        We agree with the appellant. The Board has recognized a distinction in
      other areas between agencies failing to provide information and agencies
      affirmatively providing misleading or incorrect information.      For example, the
      Board will waive the deadline to make a deposit for post-1956 military service if
      the appellant inquires of the agency on the matter and the agency provides
      misinformation that induces him not to make the deposit. However, the Board
      will not waive the deadline where the appellant’s failure to make the deposit is
      due to a lack of information and he never consulted the agency on the matter.
      Thomas v. Office of Personnel Management, 107 M.S.P.R. 334, ¶ 18 (2007). We
      find it appropriate to apply the same distinction in this case, and that the instant
      appeal is therefore unlike Crazy Thunder-Collier. The administrative judge shall
      address this matter on remand.
¶24        The appellant also argues that some of the agency’s erstwhile compliance
      problems are attributable to an improper coding of the SF-50 documenting the
      cancellation of his removal. C-2, PFR File, Tab 1 at 7-8. To the extent that the
      appellant is asking the Board to order a correction of the SF-50, we decline to do
      so because he did not raise the issue below. See Banks v. Department of the Air
      Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an
      argument 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).
¶25        The appellant also requests that the Board order the agency to provide
      information regarding the agency official responsible for compliance. C-2, PFR
      File, Tab 1 at 8. Under 5 C.F.R. § 1201.183(a)(2), if an appellant files a petition
      for enforcement alleging that the agency is in noncompliance, the agency shall
      submit the name, title, grade, and address of the agency official charged with
      complying with the Board’s order, and inform such official in writing of the
                                                                                          10

      potential sanction for noncompliance as set forth in 5 U.S.C. §§ 1204(a)(2) and
      (e)(2)(A), even if the agency asserts it has fully complied. To the extent that the
      agency has not complied with this regulation, the administrative judge shall order
      it to do so on remand.
¶26           The appellant argues that the agency is in noncompliance because it
      initiated an improper Debt Collection Act claim against him that has not yet been
      resolved. C-2, PFR File, Tab 1 at 8-9, 11. We decline to address this issue
      because the appellant did not raise it below. See Banks, 4 M.S.P.R. at 271.
¶27           The appellant also makes some arguments that appear to pertain to his other
      pending Board appeals. C-2, PFR File, Tab 1 at 9-10. As we stated above, this
      petition for review of the compliance initial decision is not the proper place to
      make arguments related to these other appeals.
¶28           Finally, the appellant requests that the Board join Rosario-Fabregas v.
      Department of the Army, MSPB Docket No. NY-0752-10-0127-P-1 with
      Rosario-Fabregas v. Department of the Army, MSPB Docket No. NY-1221-11-
      0253-W-2. C-2, PFR File, Tab 1 at 10. We deny the request for joinder on the
      basis that the Board has already issued a final order in the former matter.

                                              ORDER
¶29           For the reasons discussed above, we REMAND this case to the field office
      for further adjudication in accordance with this Remand Order. On remand, the
      administrative judge shall consider the appellant’s arguments that the agency is in
      noncompliance because it has not reimbursed him his FEGLI deductions for his
      period of unemployment, and his argument that the agency misled him into not
      restoring his TSP withdrawals within the time limit for doing so. She shall also
      order    the   agency    to   provide   the   information   required   under   5 C.F.R.
      § 1201.183(a)(2), if the agency has not already provided such information.
      Finally, to the extent that there remains any dispute regarding the OASDI and
                                                                                 11

Medicare deductions, the administrative judge shall order the parties to apprise
her of the status of the DFAS’s request to SSA to process this matter.

                  NOTICE TO THE APPELLANT REGARDING
                        YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
                  IN MSPB DOCKET NO. NY-0752-10-0127-X-1
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
                  IN MSPB DOCKET NO. NY-0752-10-0127-X-1
      You have the right to request review of this final decision in MSPB Docket
No. NY-0752-10-0127-X-1, by the United States Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order.    See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
                                                                                 12

      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional     information     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, and 11.
      If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
