Ricardo J. Rivera v. Social Security Administration
Background
- Appellant Rivera, a GS-7 translator (English/Spanish), was removed by SSA on five charges: conduct unbecoming, statement causing workplace disruption, AWOL, failure to follow leave procedures, and lack of candor.
- Rivera appealed to the MSPB, requested an interpreter claiming limited English proficiency (LEP); the AJ initially denied but later authorized an interpreter for the hearing only.
- Rivera failed to comply with discovery and several Board orders (missed prehearing conferences; provided what the agency deemed deficient responses). The AJ imposed discovery sanctions limiting affirmative defenses and evidence.
- The AJ cancelled the hearing as a sanction for Rivera’s repeated failures and found the case on the written record. The AJ sustained the charges (all but one specification), rejected Rivera’s affirmative defenses, found nexus to the efficiency of the service, and imposed removal as a reasonable penalty.
- On petition for review, Rivera argued (inter alia) constitutional due process and harmful error from denial of interpreter services, abuse of discretion in interlocutory denial and sanctions, and contested credibility and sufficiency findings. The Board denied review and affirmed the initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial/lack of interpreter — due process & LEP entitlement | Rivera: denial of interpreter throughout process violated constitutional due process and EO 13166 protections for LEP persons. | Agency/Board: Rivera, a translator required to be native-level bilingual, wrote coherent English submissions; he is not LEP and received meaningful notice and opportunity to respond. | Board: No due process violation; Rivera not LEP; meaningful opportunity to respond satisfied. |
| Harmful procedural error from interpreter denial | Rivera: lack of interpreter likely affected outcome. | Agency/Board: Rivera produced coherent English responses; no evidence of substantial prejudice from any alleged error. | Board: No showing of harmful error under 5 U.S.C. § 7701(c)(2)(A); claim fails. |
| Sanctions (discovery limits; hearing cancellation) | Rivera: AJ abused discretion imposing sanctions and cancelling hearing. | Agency/Board: Rivera repeatedly failed to comply with discovery and Board orders, gave false/misleading reasons, and was warned; sanctions were within AJ discretion and appropriate. | Board: No abuse of discretion; discovery sanctions and hearing cancellation appropriate given record; cancellation less severe than available dismissal with prejudice. |
| Sufficiency of evidence, credibility, penalty nexus | Rivera: evidence insufficient; credibility findings flawed and influenced by alleged LEP. | Agency/Board: AJ examined written record, applied Hillen factors, relied on admissions and consistent evidence; penalty reasonable with nexus to efficiency. | Board: AJ’s factual and credibility findings supported by record; charges sustained and removal reasonable. |
Key Cases Cited
- Stephen v. Department of the Air Force, 47 M.S.P.R. 672 (MSPB 1991) (due process requires notice and meaningful opportunity to respond)
- Curtin v. Office of Personnel Management, 846 F.2d 1373 (Fed. Cir. 1988) (sanction decisions are within AJ’s sound discretion)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (MSPB 1987) (factors for weighing credibility)
- Ryan v. Department of the Air Force, 117 M.S.P.R. 362 (MSPB 2012) (interlocutory certification not required where review later available)
- Davis v. Department of Commerce, 120 M.S.P.R. 34 (MSPB 2013) (dismissal with prejudice justified for serious procedural misconduct)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court’s strict enforcement of statutory filing deadlines)