UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICARDO J. RIVERA,

Appellant,

v. 

SOCIAL SECURITY 

ADMINISTRATION,

Agency. 

DOCKET NUMBER

DC-0752-15-0053-I-1

DATE: January 6, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ricardo J. Rivera, Waldorf, Maryland, pro se. 

Daniel Hutman, Esquire, and Michael Davio, Baltimore, Maryland, for the 

agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

sustained his removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 The appellant was employed as a Translator, GS-1040-7, with the Social 

Security Administration, Office of Disability Adjudication and Review, Office of 

Appellate Operations in Baltimore, Maryland. Initial Appeal File (IAF), Tab 12

at 104. His position description required him to have knowledge of both English 

and Spanish at the level of a native-born speaker, and his job duties required him 

to translate documents in claim files from Spanish into English. IAF, Tab 15 

at 33, 35. The agency removed the appellant from this position on five charges: 

(1) conduct unbecoming a Federal employee (four specifications); (2) making a 

statement that resulted in anxiety or disruption in the workplace (two

specifications); (3) absence without leave; (4) failure to follow leave procedures; 

and (5) lack of candor (eight specifications). IAF, Tab 12 at 106-09.

¶3 The appellant filed an appeal of his removal disputing the charges. IAF,

Tab 1. During the adjudication of his appeal, the appellant motioned for the 

appointment of an interpreter, arguing that English is not his first language and he 

needed the assistance of an interpreter to proceed with his appeal. IAF, Tab 31 

at 4. The administrative judge denied the motion on the basis that the appellant 

could not credibly assert that he required an interpreter to proceed with his appeal 

because he was employed by the agency as a translator and was required to speak 
3

both English and Spanish at the level of a native-born speaker. IAF, Tab 35. The 

appellant moved for certification of the issue as an interlocutory appeal. IAF,

Tab 36. The administrative judge denied the motion, finding that the appellant 

failed to meet any of the criteria established for granting interlocutory 

certification. IAF, Tab 38. Following the administrative judge’s denial, the 

appellant introduced additional evidence regarding his English proficiency. IAF,

Tabs 39, 41. Despite finding no evidence to support the appellant’s claim of a 

lack of English proficiency, the administrative judge granted the appellant’s 

motion for an interpreter but limited the assistance to the hearing only. IAF,

Tab 42 at 1. 

¶4 In the midst of the pleadings regarding interpreter assistance, the parties 

also engaged in several discovery disputes. Upon an agency motion to compel 

the appellant to comply with discovery requests, the administrative judge ordered 

him to comply and warned that failing to comply with discovery orders may result 

in the imposition of sanctions. IAF, Tabs 23-26, 28. The appellant submitted 

discovery responses, but, after deeming them duplicative and deficient, the 

agency filed a motion for sanctions against the appellant. IAF, Tab 30, Tab 33

at 5, 13-14. Without yet issuing an order on the agency’s motion, the 

administrative judge again warned the appellant that a failure to comply could 

result in the imposition of sanctions. IAF, Tab 43 at 1, Tab 48 at 1. The 

appellant failed to comply, and the agency renewed its motion. IAF, Tab 51. The 

administrative judge granted the motion and prohibited the appellant from 

asserting any additional affirmative defenses and from submitting evidence and 

argument regarding his existing affirmative defenses. IAF, Tab 53 at 2-3. 

¶5 Subsequently, in addition to discovery sanctions, the administrative judge 

also cancelled the hearing as a sanction against the appellant for failure to follow 

Board orders. IAF, Tab 74. Prior to the hearing, the appellant failed to follow at 

least two Board orders, both requiring him to appear for prehearing conferences 

and to demonstrate good cause for his failure to do so. IAF, Tabs 67-68. The 
4

administrative judge warned the appellant that, if he failed to appear for the 

prehearing conference or failed to demonstrate good cause for his failure to do so, 

his hearing could be cancelled or his appeal could be dismissed. IAF,

Tabs 68-69. The appellant ultimately responded, stating that he lost his 

telephone, which was his only means to communicate and check the Board’s 

repository and, therefore, he was not aware of the Board’s orders. IAF, Tab 70 

at 4. The agency submitted evidence showing that the appellant was able to 

communicate and had sent an email during the time he said his telephone was 

lost. IAF, Tab 71 at 4, 7. As a result, the administrative judge issued sanctions 

against the appellant and cancelled his hearing. IAF, Tab 74 at 4-5. Accordingly, 

an initial decision was issued on the written record. IAF, Tab 80, Initial 

Decision (ID). 

¶6 In the initial decision, the administrative judge sustained all five charges 

(including all specifications except for one) and determined that the appellant 

failed to prove his affirmative defenses. ID at 5-15. She also found that the 

agency established a nexus between the appellant’s removal for the charged 

misconduct and the efficiency of the service and that the penalty of removal was 

within the bounds of reasonableness. ID at 15-19. 

¶7 The appellant has filed a petition for review alleging a due process

violation, harmful error, and multiple claims of an abuse of discretion. Petition 

for Review (PFR) File, Tab 1 at 5. He also challenges the administrative judge’s 

factual and legal findings regarding the merits of his appeal. Id. The agency has 

filed an opposition to the appellant’s petition, PFR File, Tab 3, to which the 

appellant has replied, PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 On review, the appellant asserts that the agency’s and the Board’s failure to 

provide interpreter services throughout the removal and appeals processes is a
5

constitutional due process violation, constitutes harmful error,

2

and is an abuse of 

discretion by the administrative judge. PFR File, Tab 1 at 5, 10. Constitutional 

due process requires only notice and a meaningful opportunity to respond to an 

agency’s charges. See Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 

680 (1991). Here, it is undisputed that the appellant received notice of the 

charges against him, but he appears to assert that any response without the 

assistance of an interpreter was not a meaningful opportunity to respond. PFR 

File, Tab 1 at 10. We have not found any evidence in the record showing that the 

appellant requested, and was denied, the assistance of an inte rpreter prior to his 

removal. Moreover, the appellant’s response to the proposal was substantive, 

comprehensive, and in fully coherent English, and there is no evidence that the 

deciding official could not understand or was unable to rely on that response. 

IAF, Tab 12 at 104-06, 150-52. Accordingly, we find that the appellant was 

provided with a meaningful opportunity to respond and that his constitutional d ue 

process claim has no merit. 

¶9 The appellant also asserts that the administrative judge’s failure to 

invalidate the agency action due to the agency’s alleged constitutional due 

process violation constitutes harmful error. PFR File, Tab 1 at 5, 12. A 

successful claim of harmful error under 5 U.S.C. § 7701(c)(2)(A) requires the 

appellant to show that an agency’s procedural error was likely to have caused the 

 

2

The basis for the appellant’s due process and harmful error claims on review and his 

due process and harmful error claims before the administrative judge are not the same. 

Before the administrative judge, the appellant argued that the agency violated his 

procedural due process rights and engaged in harmful error by failing to provide him 

with all the material upon which it relied to support the proposed removal, in violation 

of 5 C.F.R. § 752.404(b)(1). IAF, Tab 12 at 137-41, Tab 13 at 45. The administrative 

judge found that the appellant failed to prove these claims by preponderant evidence. 

ID at 13-15. On review, the appellant does not reassert these claims as the basis for the 

due process violation and harmful error claims, but rather he asserts that the agency’s 

and the Board’s failure to appoint an interpreter is a violation of his constitutional due 

process rights and a harmful error. PFR File, Tab 1 at 5, 10. We address these 

assertions only, as the administrative judge’s findings on the appellant’s initial claims 

are unchallenged on review, and we see no reason to disturb them. 
6

agency to reach a conclusion different from the one it would have reached in the 

absence or cure of the error. Stephen, 47 M.S.P.R. at 681, 685; 5 C.F.R. 

§ 1201.4(r). Although the appellant claims that the administrative judge’s actions 

constitute harmful error, the appellant has not presented any evidence to suggest 

that the agency committed an error that caused a substantial prejudice to his 

rights. As such, the appellant’s harmful procedural error claim has no merit. 

¶10 The appellant further asserts that the administrative judge’s denying the 

appellant’s request for an interpreter during Board proceedings was an abuse of 

discretion. PFR File, Tab 1 at 5. He argues that he was entitled to interpreter 

services because he is a Limited English Proficient (LEP) individual and 

Executive Order (EO) 13166 requires all agencies to provide a system by which 

an LEP person can meaningfully access the agency’s services. PFR File, Tab 4

at 4. One earns LEP status if one speaks primarily a language other than English 

and has a limited ability to read, write, speak or understand English. See

LEP.gov, https://www.lep.gov/faqs/faqs.html (last visited January 4, 2017). We 

find the appellant does not qualify as an LEP individual. He was employed by the 

agency as a translator whose job description includes the ability to understand 

and communicate in both English and Spanish. IAF, Tab 15 at 35. Moreover, all 

of the appellant’s pleadings have been written in coherent English. Accordingly, 

we find that the appellant is not limited in his ability to read, write, and 

understand English and is, therefore, not entitled to any alleged protection under

EO 13166 or any other proffered authority.

¶11 Further, after considering the appellant’s new evidence, the administrative 

judge approved the use of an interpreter during the hearing. IAF, Tab 42. 

Cancelling the hearing as a sanction is inconsequential to the question of whether 

the administrative judge abused her discretion in denying the use of an 

interpreter. Given the administrative judge’s primary responsibility for ruling on 

motions and the deferential standard under which the Board reviews such rulings, 
7

we find no abuse of discretion under these circumstances. See 5 C.F.R. 

§ 1201.41(b). 

¶12 The appellant also argues that the administrative judge abused her

discretion when she denied the appellant’s motion for interlocutory certification. 

PFR File, Tab 1 at 5. In her ruling, the administrative judge conscientiously 

considered the issue in question in conjunction with the criteria set forth by the 

Board to certify interlocutory review. IAF, Tab 38; see Robinson v. Department 

of the Army, 50 M.S.P.R. 412, 418 (1991); 5 C.F.R. § 1201.92. She determined 

that the issue did not warrant such review. IAF, Tab 38. We find no abuse of 

discretion in this ruling. After denying the appellant’s request, the administrative 

judge agreed to provide an interpreter for the appellant during the hearing, 

making a substantial portion of the appellant’s argument moot. IAF, Tab 42. 

Further, the appellant has now had an opportunity to challenge the administrative 

judge’s underlying ruling on review, and thus any interlocutory certification 

was not necessary. See Ryan v. Department of the Air Force, 117 M.S.P.R. 362, 

¶ 5 n.1 (2012). As such, we find this claim to be without merit. 

¶13 The appellant argues, moreover, that the administrative judge abused her

discretion when she imposed sanctions against him. PFR File, Tab 1 at 5. 

Regarding the sanction of limiting submissions and affirmative defenses, we find 

that the administrative judge did not abuse her discretion. On several occasions, 

the administrative judge ordered the appellant to provide documents to the 

agency. IAF, Tabs 28, 43, 48. We agree with her finding that the record contains 

evidence that the appellant refused to comply with these orders and additionally 

find that it was within her discretion to impose this sanction as a result. See

5 C.F.R. § 1201.43. Such a determination is left to the sound discretion of the 

administrative judge, and we find no abuse of that discretion. See Curtin v.

Office of Personnel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988); 5 C.F.R. 

§ 1201.41(a)-(b). 
8

¶14 Regarding the sanction of cancelling the hearing, we similarly find that the 

administrative judge did not abuse her discretion. The record demonstrates that 

the appellant failed to appear for two prehearing conferences and was warned that 

a failure to respond to an order to show cause could result in cancelling his 

hearing or his appeal being dismissed with prejudice. IAF, Tabs 67-69. The 

appellant responded to the order to show cause, but the administrative judge 

found that the appellant’s response blatantly provided false information. IAF,

Tab 70 at 4, Tab 74 at 3-4. Despite finding that the appellant exhibited both 

negligence and bad faith in complying with her orders, findings that could justify 

a dismissal with prejudice, see Davis v. Department of Commerce, 120 M.S.P.R. 

34, ¶ 18 (2013), the administrative judge instead cancelled the requested hearing,

IAF, Tab 74. Given these extraordinary circumstances, we find the administrative 

judge’s sanction to be appropriate and not an abuse of discretion. See Hart v.

Department of Agriculture, 81 M.S.P.R. 329, ¶ 5 (1999) (stating that an 

appellant’s right to a hearing should not be denied as a sanction absent 

extraordinary circumstances). 

¶15 The appellant also alleges that the administrative judge abused her 

discretion when she denied his motions for reconsideration and admitted 

deposition testimony into evidence. PFR File, Tab 1 at 5. We find no merit in 

these claims, as the administrative judge has wide discretion to control the 

proceedings in front of her and to receive relevant evidence. Tisdell v.

Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. 

§ 1201.41(b)(3). The appellant has provided no evidence or compelling argument 

to support his claims that the administrative judge’s rulings extended beyond this 

well-established discretion. 

¶16 Next, the appellant challenges the administrative judge’s credibility 

findings, arguing that the administrative judge found him less credible because of 

his alleged limited English proficiency and that the credibility findings were 

incomplete. PFR File, Tab 1 at 10-11. When, as here, no hearing was held and 
9

the administrative judge’s findings were based solely on the written record, the 

Board will give those findings only the weight warranted by the record and the 

strength of her conclusions. Donato v. Department of Defense, 34 M.S.P.R. 385, 

389 (1987). 

¶17 Here, the administrative judge’s credibility findings were appropriately 

based on the factors set forth in Hillen v. Department of the Army, 35 M.S.P.R. 

453, 458 (1987). ID at 5-7, 10. She considered whether the witnesses made 

sworn or unsworn statements and whether they were internally and externally 

consistent with other statements in the record. Id. She relied specifically on the 

appellant’s own admissions to some of the conduct as well as admissions in his 

deposition that the agency’s witnesses had no reason to lie about him. ID at 6. 

We find that there are no other, more persuasive, indicia of credibility in the 

record than those relied upon by the administrative judge that would form a basis 

to disturb her findings. Moreover, the appellant has not presented any specific 

evidence in the record that demonstrates error in the administrative judge’s 

findings, nor has he presented any evidence to support his claim that the 

administrative judge’s credibility findings were based on his alleged limited 

English proficiency. Accordingly, we find this challenge to be without merit. 

¶18 The appellant also makes broad and general challenges to the sufficiency of 

the evidence, the nexus between the penalty for the charges and the efficiency of 

the service, and the reasonableness of the penalty of removal. PFR File, Tab 1 

at 4, 10. The appellant has failed to identify any specific evidence in the record 

that demonstrates error in the administrative judge’s findings. The administrative 

judge thoroughly examined each specification of all the charges, weighed and 

discussed the evidence, and determined that the agency met its burden of proof to 

sustain the charges. ID at 5-12. She also considered and discussed record 

evidence in finding that the agency demonstrated a nexus to the efficiency of the 

service and that the penalty of removal was reasonable. ID at 15-19. We find 

that the appellant’s generalized assertions on review amount to nothing more than 
10

mere disagreement with these conclusions, and we find no basis to disturb these 

findings. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) 

(finding no reason to disturb the administrative judge’s findings when she 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same). 

¶19 Finally, the appellant argued briefly on review that the administrative judge 

should be “disqualified from any further involvement in the appeal based on 

demonstrated personal bias.” PFR File, Tab 1 at 5. In making a claim of bias, an 

appellant must overcome the presumption of honesty and integrity on the part of 

the administrative judge. Protopapa v. Department of Transportation, 

14 M.S.P.R. 455, 459 (1983). The mere fact that the administrative judge 

does not accept the appellant’s assertions or interpret testimony in the fashion the 

appellant claims is correct does not constitute bias. Id. Here, the appellant’s 

contention of bias is not based on any evidence of record but rather only 

demonstrates his disagreement with the administrative judge. Thus, we find the 

appellant’s claim of bias to be without merit. 

¶20 We have considered the appellant’s arguments on review but have 

concluded that a different outcome is not warranted. Accordingly, we affirm the 

initial decision. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the 

U.S. 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
11

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). 

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 U.S. 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 U.S. 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 an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. 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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board