NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOSE ROSARIO-FABREGAS,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2022-2280

______________________ 

Petition for review of the Merit Systems Protection 

Board in Nos. NY-0752-10-0127-X-2, NY-0752-10-0127-X3. 

______________________ 

Decided: May 30, 2023

______________________ 

JOSE EVARISTO ROSARIO-FABREGAS, San Juan, PR, pro 

se. 

 BRITTNEY M. WELCH, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. 

 ______________________ 

Before LOURIE, CLEVENGER, and TARANTO, Circuit Judges.

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2 ROSARIO-FABREGAS v. ARMY

CLEVENGER, Circuit Judge

Mr. Jose Rosario-Fabregas, acting pro se, timely appeals a final decision of the Merit Systems Protection 

Board (“Board” or “MSPB”) dismissing his petitions for enforcement of two compliance initial decisions issued by the 

Board’s administrative judge (“AJ”). See Rosario-Fabregas 

v. Dep’t of the Army, Nos. NY-0752-10-0127-X-2, NY-0752-

10-0127-X-3, 2022 WL 3073707 (M.S.P.B. Aug. 1, 2022) 

(hereinafter Final Decision). We have jurisdiction under 

28 U.S.C. § 1295(a)(9). For the reasons set forth below, we 

vacate the Board’s final decision and remand for specific 

further proceedings. 

BACKGROUND

Mr. Rosario-Fabregas was employed as a Biologist 

(Project Manager), GS-12 by the U.S. Army Corps of Engineers (“Agency”) in the Regulatory Division, San Juan, 

Puerto Rico. The Agency removed Mr. Rosario-Fabregas 

from his position effective February 12, 2010. Final Decision at *1. He successfully challenged his removal at the 

Board, obtaining an Order dated November 30, 2011 directing the Agency to reinstate him to his former position

within 20 days and to provide him within 60 days with the 

correct amount of back pay, interest on back pay, and other 

benefits under the Office of Personnel Management 

(“OPM”)’s regulations. Rosario-Fabregas v. Dep’t of the 

Army ̧ No. NY-0752-10-0127-I-1, 2011 WL 12516590, at *3-

4 (M.S.P.B. Nov. 30, 2011). The Board also ordered the 

Agency to provide the Defense Finance and Accounting 

Service (“DFAS”) with all information necessary to accomplish the award of back pay, interest, and benefits. Satisfaction of the Board’s Order would require DFAS to provide 

Mr. Rosario-Fabregas with back pay for the pay periods between his termination in early 2010 and his reinstatement 

in late 2011, and to coordinate with the Social Security Administration (“SSA”) to enable SSA to correctly allocate Mr. 

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ROSARIO-FABREGAS v. ARMY 3

Rosario-Fabregas’ back pay to secure the correct benefits 

under the Social Security and Medicare programs.

FIRST PETITION FOR ENFORCEMENT

On January 30, 2012, Mr. Rosario-Fabregas filed a petition with the Board to enforce its November 30, 2011 Order, alleging that the Agency had not fully complied 

because, inter alia, it had used certain incorrect authority 

codes on the OPM Standard Form 50 (“SF-50”) canceling 

his removal, and asking that the Agency be ordered to correct the alleged error. C-1 Compliance File, Tab 1 at 2-3, 

Attach. 3. His petition was assigned to an AJ of the Board. 

On February 22, 2012, the Agency responded that it had 

issued the SF-50 canceling Mr. Rosario-Fabregas’ removal 

on December 2, 2011, and thereafter worked with DFAS to 

provide “the majority” of his owed back pay, interest, and 

benefits on January 26, 2012. The Agency response did not 

address the alleged error in the issued SF-50. C-1 Compliance File, Tab 6 at 1-2. On May 30, 2012, upon review of 

the Agency’s submissions, the AJ found the Agency in compliance and that, inter alia, “the adjusted gross back pay 

was $173,139.59 and with interest of $6,148.65 . . . totaled 

$179,288.24.” Rosario-Fabregas v. Army, No. NY-0752-10-

0127-C-1, 2012 WL 2870054, slip op. at 3-4 (M.S.P.B. May 

30, 2012). The AJ thus denied the petition, and her initial 

decision became final on July 4, 2012.

SECOND PETITION FOR ENFORCEMENT

Mr. Rosario-Fabregas remained convinced that the 

Agency had not fully complied with the Board’s November 

30, 2011 Order, and thus filed a second enforcement petition on February 19, 2013. The second petition, coupled 

with supplementary filings, noted that the Agency’s submissions in the first enforcement action contained multiple 

inconsistent values for the amount of back pay owed and 

actually paid: the amount stated by the AJ in the decision 

denying the first petition for enforcement ($179,288.24)

and five other amounts ($168,515.12, $154,738.32, 

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4 ROSARIO-FABREGAS v. ARMY

$158,219.12, $158,905.52, and $175,815.35). Mr. RosarioFabregas asked the Board to order clarification of these 

discrepancies and payment of any difference owed. C-2 

Compliance File, Tab 3, Attach. at 2. He also cited an April 

26, 2013 earnings statement that he had received from SSA 

to allege that the Agency had failed to allocate back pay to 

the correct years for Social Security purposes—thereby 

harming future Social Security benefits—and asked the 

Board to order the Agency to report the correct allocations 

to SSA. C-2 Compliance File, Tab 11 at 1-2, 5, 7. In addition, the second enforcement action raised, once again, the 

Agency’s alleged SF-50 coding error. The Agency responded that Mr. Rosario-Fabregas had received the correct back pay and benefits, which were accurately reflected 

in the SSA earnings statement, and attached a May 10, 

2013 memorandum from DFAS employee Ms. Casey 

Prunier for support. Mr. Rosario-Fabregas replied that Ms. 

Prunier was wrong and that the annual allocation of his 

back pay to Medicare may also be incorrect. C-2 Compliance File, Tab 13 at 5-7. The AJ agreed, finding on December 3, 2013, that the Agency was not in full compliance, 

granting the second enforcement petition in part, and ordering the Agency to reconcile the discrepancies between 

its data and the SSA earnings report, make any necessary 

corrections, and explain them. Rosario-Fabregas v. Army, 

No. NY-0752-10-0127-C-2, 2013 WL 6705702, slip op. at 6-

7 (M.S.P.B. Dec. 3, 2013); Final Decision at *1.

The Agency responded with a declaration from Ms. 

Prunier dated January 22, 2014. Her declaration now 

agreed with Mr. Rosario-Fabregas’ challenge to the accuracy of the April 26, 2013 SSA earnings statement and 

stated that she had submitted a request to SSA with significantly different Social Security and Medicare allocations to correct Mr. Rosario-Fabregas’ record. X-1 

Compliance Referral File, Tab 3 at 3, Attach. 1 at 1-2, Attach. 1 (Ex. B). In the interim, on January 6, 2014, Mr. 

Rosario-Fabregas had filed a petition seeking full-Board 

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ROSARIO-FABREGAS v. ARMY 5

review of the AJ’s December 3, 2013 initial decision, attaching two June 29, 2013 letters from DFAS and one September 5, 2013 letter from the Agency, which together stated 

that he owed at least $4833.27 in overpaid 2011 back pay. 

Mr. Rosario-Fabregas argued that this attempted clawback called into question the Agency’s earlier guarantees 

that his back pay and benefits were correct. C-2 Petition 

for Review File, Tab 1 at 5-6; id., Attach. 1, 2. He also alleged the incorrect coding on his SF-50 caused the allocation problems. On January 31, 2014, the Agency responded 

that he had waived both arguments by not raising them in 

his petition, and, in any case, had not been harmed by any 

SF-50 coding errors, as he had been reinstated with back 

pay and benefits as required, and the SF-50 was no longer 

in his personnel file. On September 11, 2014, the full Board 

dismissed the petition for enforcement regarding the SSAallocations issue, finding that the Agency had complied 

with the AJ’s December 3, 2013 initial decision, and advising Mr. Rosario-Fabregas to raise any new compliance issues in a third petition for enforcement if he could show 

good cause for delay. Rosario-Fabregas v. Dep’t of Army, 

Nos. NY-0752-10-0127-C-2, NY-0752-10-0127-X-1, 2014 

WL 5410707, at *1, *2 n.3, *3-4 (M.S.P.B. Sept. 11, 2014). 

But the Board granted Mr. Rosario-Fabregas’ petition for 

review on other issues related to his life insurance and retirement plan, remanding those issues to the AJ, and, in so 

doing, also ordered the AJ to have the parties provide an 

update on the status of Ms. Prunier’s January 22, 2014 reallocation request to SSA. Id. at *6; Final Decision at *1. 

On remand, the Agency filed another declaration from 

Ms. Prunier—this one dated October 9, 2014—reaffirming 

that her January 22, 2014 request to SSA was sufficient to 

correct Mr. Rosario-Fabregas’ allocations.1

 On December 

1

 A day earlier, on October 9, 2014, Mr. Rosario-Fabregas filed a third petition for enforcement (discussed

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6 ROSARIO-FABREGAS v. ARMY

24, 2014, the Agency, however, reported to the AJ that 

SSA, for unexplained reasons, had not timely received the 

adjusted Social Security and Medicare allocations Ms. 

Prunier sent on January 22, 2014. Instead, SSA received 

her reallocation request nearly a year later, on December 

16, 2014. SSA produced new Social Security and Medicare 

allocations on December 23, 2014 and December 30, 2014, 

which differed in their amounts from those in Ms. Prunier’s 

January 22, 2014 request. When filing these SSA reports, 

Mr. Rosario-Fabregas renewed his complaint that the 

Agency still was not in compliance with the Board’s November 30, 2011 Order. B-1 Remand File, Tab 8 at 2-4, 

Attach.; B-1 Remand File, Tab 10, Attach. at 5. On September 6, 2016, the AJ ordered the Agency to “(1) have 

DFAS contact SSA in order to determine whether SSA 

made the correct allocations covering the period between 

the appellant’s removal and his reinstatement and (2) provide the Board with documentation as to DFAS’s action in 

this regard.” Rosario-Fabregas v. Army, No. NY-0752-10-

0127-B-1, 2016 WL 4743987, slip op. at 6-7 (M.S.P.B. Sept. 

6, 2016); Final Decision at *2.

The Agency then filed another declaration from Ms. 

Prunier—this one dated October 11, 2016—stating that 

Mr. Rosario-Fabregas’ “total gross back pay” was 

$174,568.34 and that she had submitted still more reallocations to SSA on October 5, 2016, this time applying an 

annual Social-Security wage cap before reallocating back 

pay received in 2012 to 2010 and 2011. X-2 Compliance 

infra), attaching an SSA earnings report showing Social 

Security and Medicare allocations that were still unchanged from the earlier-filed April 26, 2013 report that 

predated Ms. Prunier’s January 22, 2014 alleged corrections. See C-3 Compliance File, Tab 1 at 622 of 635. 

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ROSARIO-FABREGAS v. ARMY 7

Referral File, Tab 1, Ex. A (¶¶ 3, 10); id., Ex. A (Attach. 2).2 

Mr. Rosario-Fabregas responded that the annual wage cap 

did not apply to his case under the controlling regulations, 

and Ms. Prunier’s reliance on it made for a request with 

unreasonable non-incremental Social Security allocations. 

See X-3 Compliance Referral File, Tab 4 at 3-4. He then 

filed a report from SSA dated November 18, 2016 showing 

allocations that differed not only from those persisting in 

each SSA report he had received since the one dated December 30, 2014, but also from Ms. Prunier’s latest request. 

X-3 Compliance Referral File, Tab 5, Attach. 1. Citing Mr. 

Rosario-Fabregas’ concerns, on June 9, 2017, the Board’s 

acting clerk ordered the Agency to provide the Social Security and Medicare deductions made for each pay period, a 

narrative explanation of how they were determined, and a 

clear explanation that they were properly allocated to the 

year of the relevant pay period and not as a lump sum to 

the year of the back pay payment. X-2 Compliance Referral 

File, Tab 3 at 2.

In response, the Agency filed an October 20, 2017 declaration from DFAS employee Mr. Erron Jackson stating 

that the “total back pay to be allocated”—or “total allocable 

back pay”—was $150,406.08, of which $148,862.48 had 

been paid in 2012 and $1543.60 had been paid in 2013. Mr. 

Jackson agreed with Mr. Rosario-Fabregas that the Social 

Security wage cap should not apply before reallocation of 

2

 Ms. Prunier also listed various payments and refunds made to Mr. Rosario-Fabregas and deductions from 

his gross back pay. Among these, she identified that, on 

March 19, 2013, Mr. Rosario-Fabregas “was erroneously 

paid back pay for 11 pay periods” resulting in him being 

“paid a gross amount of $1,543.60 for January 16, 2010 

through June 5, 2010,” and that “[a]n indebtedness will be 

created for this erroneous money.” Id. (¶ 8); see also id. 

(Attach. 1 at 1).

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8 ROSARIO-FABREGAS v. ARMY

back pay in his case and, accordingly, DFAS had prepared 

and attempted to submit another reallocation request to 

SSA, which differed substantially from each of Ms. 

Prunier’s prior ones. See X-2 Compliance Referral File, 

Tab 12, Attach. (¶ 2). But, this time, SSA allegedly responded to DFAS by insisting that DFAS wait until Mr. 

Rosario-Fabregas’ tax year wages appear on SSA’s records 

and then resubmit the newest reallocation request. Mr. 

Jackson further declared that DFAS was awaiting confirmation from SSA that this condition had been met—which 

SSA advised could take until early 2019 (i.e., “up to a year 

after the end of a current tax year”)—to resubmit its reallocation request. See id. (¶ 4). Mr. Rosario-Fabregas responded by asking that the Agency be ordered to correct his 

SF-50 to aid in remedying his allocations and by attaching 

an SSA report dated August 31, 2018 showing the same allegedly erroneous allocations that had been in place since 

at least the earlier-filed November 18, 2016 report, which 

predated Mr. Jackson’s declaration. X-2 Compliance Referral File, Tab 20, Attach. 1 at 2.

THIRD PETITION FOR ENFORCEMENT 

On October 9, 2014, taking the Board’s advice from the 

September 11, 2014 remand Order, Mr. Rosario-Fabregas 

filed a third petition for enforcement realleging that the 

Agency’s submissions in the first enforcement action reported several inconsistent values for the amount of back 

pay owed and actually paid—repeating the numbers he 

had cited in the second enforcement action—and again asking the Board to order clarification of these discrepancies 

and payment of any difference owed. See C-3 Compliance 

File, Tab 1 at 30-31, 33 of 635. Likewise, the petition also 

re-alleged that the Agency’s SF-50 coding errors caused its 

compliance failures and asked the Board to order issuance 

of a corrected form. The Agency conceded that the issued 

SF-50 contained a coding error and provided a declaration 

stating that the error was harmless. The Agency also provided a separate declaration by Ms. Prunier asserting that 

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ROSARIO-FABREGAS v. ARMY 9

DFAS relied on the Board’s November 30, 2011 Order to 

process Mr. Rosario-Fabregas’ back pay and benefits, not 

the incorrect coding on the SF-50. C-3 Compliance File, 

Tab 3, Exs. A (¶ 3), C (¶ 2). Mr. Rosario-Fabregas criticized 

this response for not clarifying the amount of his back pay 

and insisted that the Agency first resolve the back-pay issue before correcting his SSA allocations to ensure that the 

latter would be correct. C-3 Compliance File, Tab 4 at 15 

of 18; C-3 Compliance File, Tab 5 at 3. On September 8, 

2016, the AJ acknowledged Mr. Rosario-Fabregas’ claim 

that the Agency had variously stated his back pay as 

$168,515.12, $154,738.32, $158,219.12, $158,905.52, 

$179,288.24, and $175,815.35, and, accordingly, ordered 

the Agency to “(1) have DFAS determine the amount of the 

gross back pay and (2) submit a clear explanation of 

DFAS’s computations,” and provided Mr. Rosario-Fabregas 

with 20 days to respond thereafter. Rosario-Fabregas v. 

Army, No. NY-0752-10-0127-C-3, 2016 WL 4743988, slip 

op. at 6-7 (M.S.P.B. Sept. 8, 2016) (hereinafter C-3 Initial 

Decision); Final Decision at *2. But the AJ declined to order correction of the SF-50, finding that the coding error 

was not a “pivotal issue” for the Agency’s compliance. C-3 

Initial Decision, slip op. at 6.

In response, on October 24, 2016, the Agency refiled 

Ms. Prunier’s October 11, 2016 declaration, which it had 

recently submitted in the second enforcement action and 

which indicated that Mr. Rosario-Fabregas’ “total gross 

back pay” was a different number—$174,568.34. X-3 Compliance Referral File, Tab 3, Ex. A. Mr. Rosario-Fabregas 

responded on November 21, 2016 that he had “serious concerns” about the Agency’s new back pay computations but 

without identifying any specific errors in the calculated 

2010 to 2012 back pay. See X-3 Compliance Referral File, 

Tab 5 at 2-4. The parties’ remaining substantive filings in 

the third enforcement action duplicated all but one of their 

subsequent filings in the second enforcement action, including Mr. Jackson’s October 20, 2017 declaration that 

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10 ROSARIO-FABREGAS v. ARMY

the “total back pay to be allocated” was $150,406.08. The 

Agency’s concurrent filings did not address the inconsistencies between Mr. Jackson’s declaration and Ms. 

Prunier’s October 11, 2016 declaration. 

THE BOARD’S DECISION

On August 1, 2022, in a consolidated decision, the full 

Board found the Agency in compliance with the AJ’s September 6, 2016 SSA-related order and the AJ’s September 

8, 2016 back-pay-related order and dismissed both compliance actions. Final Decision at *1. 

Regarding the back-pay issue, the Board found Ms. 

Prunier’s October 11, 2016 declaration “detail[ed] the 

amount of back pay paid to [Mr. Rosario-Fabregas]” by 

“set[ting] forth her calculations regarding gross and net 

back pay, including interest paid on the back pay amount.” 

Id. at *2. The Board noted that Mr. Rosario-Fabregas did 

not “present[] a specific objection to [Ms. Prunier’s] back 

pay or interest calculations,” and found “[a]ccordingly, . . . 

that the [A]gency properly calculated and paid the back 

pay and interest due.” Id. But the Board also found that 

Mr. Jackson’s October 20, 2017 declaration “reported that 

[Mr. Rosario-Fabregas’] total back pay was $150,406.08,” 

of which “$148,862.48 was paid to [him] in January 2012” 

and “[t]he remaining $1543.60 was paid in 2013.” Id. at *3. 

Second, the Board found that Mr. Rosario-Fabregas’ October 26, 2017 filing “alleg[ed] that the [A]gency’s calculations of back pay were incorrect” but “did not specify what 

he believed the correct back pay amounts to be.” Id. at *3. 

Finally, the Board found the Agency in compliance with the 

AJ’s September 8, 2016 order to ascertain and explain Mr. 

Rosario-Fabregas’ gross back pay because: (1) the Agency 

“indicated that it paid [him] back pay in the amount of 

$150,406.08”; (2) the Agency “provided an adequate explanation of how the back pay . . . amount[ was] determined”; 

and (3) “[Mr. Rosario-Fabregas] ha[d] not alleged any specific error in these amounts.” Id. at *4. The Board’s 

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ROSARIO-FABREGAS v. ARMY 11

decision made no attempt to explain how Ms. Prunier and 

Mr. Jackson could both be accurately reporting Mr. Rosario-Fabregas’ back pay. Instead, the Board faulted Mr. 

Rosario-Fabregas for failing to identify a correct back pay 

number, even though its original November 30, 2011 Order 

directed the Agency, not Mr. Rosario-Fabregas, to identify 

the correct back pay amount.

Regarding the SSA-allocations issue, the Board found 

that Mr. Jackson’s declaration stated that DFAS “had confirmed that it had provided all necessary documentation to 

SSA to enable it to properly allocate [Mr. Rosario-Fabregas’] wages,” “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 

*3. The Board also found that “the [A]gency ha[d] provided 

an adequate explanation of how the . . . benefits amounts 

were determined.” Id. at *4. Second, the Board found that, 

although various of Mr. Rosario-Fabregas’ subsequent filings alleged SSA’s allocations were not correct, they did not 

identify which allocations he believed to be incorrect or any 

specific errors or inaccuracies. Id. As with the back-pay 

issue, the Board faulted Mr. Rosario-Fabregas for failing to 

know the correct Social Security and Medicare allocations. 

Finally, although not so expressly stated, these findings 

were presumably the Board’s basis for holding the Agency 

in compliance with the AJ’s September 6, 2016 order to contact SSA to ensure the allocations were correct. See id. at 

*3-4.

The Board denied Mr. Rosario-Fabregas’ request for a 

corrected SF-50, finding that his April 9, 2019 filing “did 

not provide any support for [his] claim that [an] additional 

SF-50[ was] required to effectuate the Board’s [O]rder regarding back pay and [Social Security] contributions.” Id. 

at *4.

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12 ROSARIO-FABREGAS v. ARMY

DISCUSSION

“The Board’s decision must be sustained unless 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.” Conant 

v. Off. of Pers. Mgmt., 255 F.3d 1371, 1374 (Fed. Cir. 2001); 

5 U.S.C. § 7703(c). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Consol. Edison Co. of New York v. 

Nat'l Lab. Rels. Bd., 305 U.S. 197, 229 (1938).

From shortly after the Board’s reinstatement Order of 

November 30, 2011, and before this court, Mr. Rosario-Fabregas has argued that the Agency did not correctly compute his back pay and related benefits. As shown above, at 

many points along the way, the AJ and the Board agreed 

with him and remanded the case to the Agency for correction or explanation of the underlying calculations. 

Throughout this lengthy process, Mr. Rosario-Fabregas 

identified, inter alia, three errors by the Agency.

First, he argues that the Agency erred when issuing 

the SF-50 that canceled his removal by coding it to indicate 

that he was being reinstated by an appointing officer without back pay, rather than by order of the Board with back 

pay. Mr. Rosario-Fabregas alleges that, because of the incorrect coding, the SF-50 did not trigger proper restoration 

of his benefits and back pay as it otherwise would have. 

Instead, the Agency, DFAS, and SSA were allegedly only 

prompted to attempt to manually restore his back pay and 

benefits via a complicated and error-prone ad-hoc process 

only after he noticed the errors and sought enforcement. 

See Add. Pet. Inf. Br. at 5-7, 21, 25. Accordingly, Mr. RosarioFabregas argues that, given SSA earnings statements 

showing that this ad-hoc process has not properly restored 

his benefits, the Board erred in not ordering the Agency to 

issue a corrected SF-50. See Pet. Inf. Br., ¶¶ 2, 4, 6. The 

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ROSARIO-FABREGAS v. ARMY 13

Agency admits the coding error but asserts that it had no 

impact on restoring Mr. Rosario-Fabregas’ back pay or benefits. Resp. Inf. Br. at 10-11. Throughout the lengthy enforcement proceedings, and in his briefs to this court, Mr. 

Rosario-Fabregas has provided no evidence that a correctly 

coded SF-50 would have had any impact on the Agency’s 

attempt to satisfy the Board’s November 30, 2011 reinstatement Order. Accordingly, we agree with the Board 

that Mr. Rosario-Fabregas has not provided any support 

for his claim that an additional SF-50 is needed to effectuate compliance with the Board’s reinstatement Order, and 

we therefore hold that the Board did not err in denying his 

request to order one. 

But Mr. Rosario-Fabregas is correct that the Board

erred regarding his other two issues, namely the Agency’s 

failure to correctly establish the amount of his gross back 

pay and calculate the related Social Security and Medicare 

allocations.

Regarding the back-pay issue, the Board repeats the 

Agency’s own mistakes, finding compliance by arbitrarily 

relying on inconsistent back pay calculations and making 

no attempt to explain those inconsistencies. As noted 

above, in the third enforcement action, the Agency resubmitted Ms. Prunier’s October 11, 2016 declaration to show 

compliance with the AJ’s September 8, 2016 order requiring the Agency to calculate and clearly explain the correct 

amount of gross back pay. This declaration stated, inter 

alia, that “total gross back pay” was $174,568.34 and that 

Mr. Rosario-Fabregas was paid $1543.60 in error in 2013, 

for which an equivalent indebtedness would be created on 

his account. The Board expressly relied on this declaration 

to resolve the back-pay issue, citing it to find that “the 

[A]gency properly calculated and paid the back pay and interest due.” Final Decision at *2. Separately, in the second 

enforcement action, the Agency submitted Mr. Jackson’s 

October 20, 2017 declaration to show compliance with the 

AJ’s September 6, 2016 order and the acting clerk’s June 9, 

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14 ROSARIO-FABREGAS v. ARMY

2017 follow-up order requiring the Agency to determine 

and explain the correct Social Security and Medicare allocations. This declaration stated that “total back pay to be 

allocated”—or “total allocable back pay”—was $150,406.08, 

and that this number properly included the $1543.60 paid 

to Mr. Rosario-Fabregas in 2013. The Board, despite already relying on Ms. Prunier’s calculations, also expressly 

cited Mr. Jackson’s declaration as stating that “total back 

pay” was $150,406.08 and that the Agency had instead paid 

Mr. Rosario-Fabregas this amount. See id. at *3. In other 

words, the Board found that both $174,568.34 and 

$150,406.08 were the amount of back pay to be paid, and 

even, by implication, that Mr. Rosario-Fabregas both did 

and did not owe the Agency $1543.60.3

 

On appeal, Mr. Rosario-Fabregas continues to point 

out the inconsistent calculations of back pay made by the 

Agency and accepted by the Board, asking that we find that 

the Board erred in not ordering the Agency to correctly recalculate his back pay. See Add. Pet. Inf. Br. at 10-11, 18, 

20-21, 25; Pet. Inf. Br., ¶ 6. The Agency argues that the 

Board relied on Ms. Prunier’s October 11, 2016 declaration 

for the computation of Mr. Rosario-Fabregas’ back pay, see

Resp. Inf. Br. at 13, and cites Mr. Jackson’s declaration for 

the SSA-allocation issue but without any recognition that 

Mr. Jackson’s declaration includes a significantly different 

back pay calculation, id. at 7. The Agency’s contention that 

the Board relied on Ms. Prunier’s $174,568.34 back pay 

3

 Indeed, the AJ credited Mr. Rosario-Fabregas’ allegation 

that the Agency has stated at least six different back pay amounts. 

Including the two additional values cited thereafter by Ms. Prunier 

and Mr. Jackson and relied on by the Board, this suggests that the 

Agency has stated at least eight different back pay amounts—ranging from as low as $150,406.08 to as high as $179,288.24—over the 

course of this dispute without meaningfully explaining the differences. 

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ROSARIO-FABREGAS v. ARMY 15

number is undermined by the Boards’ finding that the 

Agency correctly paid Mr. Rosario-Fabregas $150,406.08 in 

back pay. Final Decision at *3-4. The Agency thus fails to 

address and defend the Board’s final decision that the 

Agency has fully complied with the November 30, 2011 reinstatement Order. Notably, the Agency does not support 

the Board’s view that Mr. Rosario-Fabregas is at fault for 

failure to identify the correct back pay number and related 

allocations of back pay to provide for Social Security and 

Medicare benefits. Mistakenly, the Agency argues that 

“Mr. Rosario-Fabregas does not explain why he believes 

the Army is noncompliant.” Resp. Inf. Br. at 15. For Mr. 

Rosario-Fabregas, compliance requires the Agency to produce correct back pay numbers for the relevant years, with 

Social Security and Medicare allocations that correctly reflect those numbers.

Throughout the enforcement proceedings, Mr. RosarioFabregas has asked the Board to require the Agency to produce correct back pay award numbers, and to work with 

DFAS and SSA to achieve correct allocations of awarded 

back pay to provide for Social Security and Medicare benefits. In the extended back-and-forth exchanges between 

the AJ, the Board, and the Agency, numerous possible 

back-pay numbers and numerous possible SSA allocations 

have been asserted by the Agency to be correct. In the end, 

the evidence before the Board pointed to the declarations 

of both Ms. Prunier and Mr. Jackson as being correct, and 

the Board accepted both declarations as accurate, with no 

recognition of or justification for the inconsistencies. No 

evidence has been adduced by the Agency or relied upon by 

the Board to justify the arbitrary conclusion that the 

Agency has complied with regard to the back-pay issue.

Regarding the SSA-allocations issue, it is not clear on 

the record before this court that SSA’s allocation of Mr. Rosario-Fabregas’ back pay to Social Security and Medicare

is correct. This is particularly so when the Agency and 

DFAS have repeatedly submitted sworn declarations that 

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16 ROSARIO-FABREGAS v. ARMY

their allocations are correct, only to cite new regulations or 

procedures—many of which were first raised by Mr. Rosario-Fabregas—and drastically change the allocations. 

This happened no fewer than five times in as many years. 

In any case, the parties do not appear to dispute that the 

related allocations depend at least in part on the amount 

of gross back pay, nor did the Board find otherwise. Thus, 

just as Mr. Rosario-Fabregas argued below, the Agency 

must resolve the outstanding back-pay issue before it can 

definitively resolve the SSA-allocations one. Accordingly, 

because the Board lacked substantial evidence to resolve 

the back-pay issue, it also lacked substantial evidence to 

find that the Agency had complied with the AJ’s September 

6, 2016 order to determine and show that SSA had correctly 

allocated Mr. Rosario-Fabregas’ back pay to Social Security 

and Medicare.4

 

4 To the extent the Board drew any conclusions by 

relying on its finding that Mr. Jackson “stated that DFAS 

had confirmed that it had provided all necessary documentation to SSA to enable it to properly allocate [Mr. RosarioFabregas’] wages,” those conclusions are not supported by

substantial evidence. As Mr. Rosario-Fabregas argues on 

appeal, Mr. Jackson went on to say that DFAS was still 

awaiting confirmation from SSA that his 2017 tax year 

wages had appeared on SSA records—which could happen 

as late as early 2019—after which DFAS would need to “resubmit” its reallocation request to SSA. Mr. Rosario-Fabregas correctly notes that there is nothing in the record 

showing that DFAS has since received such confirmation 

and resubmitted its request, let alone that such resubmitted request has been successfully processed by SSA. As Mr. 

Rosario-Fabregas points out, his August 31, 2018 SSA 

earnings report—the most recent one of record in this 

case—does not reflect the reallocation request included 

with Mr. Jackson’s October 20, 2017 declaration. See Add. 

Pet. Inf. Br. at 15-16. Indeed, as noted above, it includes 

the same values for the 2010 to 2012 period as his November 18, 2016 report, which predated Mr. Jackson’s declaration. 

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ROSARIO-FABREGAS v. ARMY 17

CONCLUSION

The Agency was supposed to comply with the Board’s 

reinstatement Order in 60 days, not 11 years (and counting). Although we affirm the Board’s decision that Mr. Rosario-Fabregas has provided no evidence to merit ordering 

the Agency to issue a new or corrected SF-50, we vacate its 

decision that the Agency has complied with the AJ’s September 6, 2016 and September 8, 2016 orders and remand

to the Board for the limited purpose of, for the 2010 to 2012 

period: (a) determining the correct amounts for Mr. Rosario-Fabregas’ back pay; (b) determining the correct 

amounts for Mr. Rosario-Fabregas’ Social Security and 

Medicare allocations; and (c) correcting any errors in Mr. 

Rosario-Fabregas’ back pay, Social Security allocations, or 

Medicare allocations. 

Accordingly, the final decision of the Board is vacated, 

and the case is remanded to the Board for further proceedings as specified in this opinion.

VACATED AND REMANDED

COSTS

No costs.

Case: 22-2280 Document: 25 Page: 17 Filed: 05/30/2023