Rosario-Fabregas v. Merit Systems Protection Board
2016 U.S. App. LEXIS 14990
| Fed. Cir. | 2016Background
- Rosario was a biologist and project manager for the Army Corps of Engineers until being fired in February 2010.
- In November 2011, the MSPB found the termination violated due process and ordered restoration.
- Rosario suffered depression from the improper removal and took sick leave to recover.
- In May 2012, Rosario provided a doctor’s letter recommending either partial hospitalization, relocation, or accommodation for three months.
- In June 2012, the Corps asked for further information to clarify the proposed accommodation; Rosario later said he intended to return full time.
- On July 2, 2012, the Corps conditioned any return on a medical release addressing history, prognosis, and any restrictions; Rosario did not provide the requested release and remained on leave, with the agency suggesting possible AWOL risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board jurisdiction hinged on involuntary absence vs. enforced leave | Rosario argues involuntariness and coercion show a constructively suspended status. | The Board found absence was not involuntary because Rosario failed to meet return-to-work conditions. | The Board properly treated the absence as a non-constructive suspension issue for jurisdiction. |
| Whether agency action was improper and thus supported jurisdiction | Rosario asserts agency coercion and wrongful actions deprived meaningful choice. | Agency had reasonable grounds and actions were merits-based, not improper for jurisdiction. | Even if true, improper agency action is needed to establish involuntariness; the Board’s finding was supported by substantial evidence. |
| Whether absence from July–November 2012 was involuntary due to agency action | Rosario claims forced leave after non-return due to medical issues. | Agency refused return until medical documentation; this is not a constructive suspension. | Substantial evidence supports the agency’s refusal as proper, so no constructive suspension. |
Key Cases Cited
- Holloway v. U.S. Postal Serv., 993 F.2d 219 (Fed. Cir. 1991) (jurisdictional focus on voluntary vs. involuntary absence in suspension analysis)
- Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (involuntariness requires improper acts by agency and loss of meaningful choice)
- Shoaf v. Dep’t of Agric., 260 F.3d 1336 (Fed. Cir. 2001) (involuntariness framework for coercive agency actions)
- Pittman v. Merit Sys. Prot. Bd., 832 F.2d 598 (Fed. Cir. 1987) (enforced leave treated as suspension with MSPB jurisdiction)
- Abbott v. United States Postal Service, 121 M.S.P.R. 294 (M.S.P.B. 2014) (enforced leave suspensions are not constructive; merits review may differ)