UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JUAN WILLIAM ARREDONDOLOPEZ,

Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH

- 0714

- 17

- 0438

- C

- 1

DATE: June 28, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Juan William Arredondolopez , Shoemakersville, Pennsylvania, pro se. Stacey Conroy , Esquire, Philadelphia , Pennsylvania, for the agency.

BEFORE Cathy A. Harris , Vice Chairman Raymond A. Limon , Member

FINAL OR DER ¶1 The appellant has filed a petition for review and the agency has filed a cross petition for review of the compliance initial decision, which denied the appellant’s petition for enforcement

. Generally, we grant petitions such as these

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

only in the follo wing circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrati ve 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 leg al 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. § 12 01.115 ). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review
and the cro ss petition for review and AFFIRM the compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). We
FORWARD the appellant’s new allegation of noncompliance to the regional office for docketing as a petition for enforcement. 5 C.F.R. § 1201.182 (a).

BACKGROUND ¶2 On September 18, 2017, the appellant appealed the agency’s decis ion to remove him from his position as Chief Supervisory Radiologic Technologist (CSRT), GS

- 11 , at the agency’s Corporal Michael J. Crescenz Medical Center in Philadelphia, Pennsylvania. Arredondolopez v. Department of Veterans Affairs
, MSPB Docket No. PH

- 0714

- 17

- 0438

- I

- 1 , Init ial Appeal File (IAF), Tab 1. After holding a hearing, the administrative judge issued an initial decision finding that the agency failed to prove its charge s and reversing the appellant’ s removal. IAF,
Tab 30. The administrative judge ordered the agency to retroactively restore the appellant, effective September 12, 2017, pay him the appropriate amount of back pay, with interest, and adjust his benefits with appropriate credits and deductions.3

Id. The initial decision became the final decision of the Board on March 20,
2018 , after neither party filed a petition for review. See 5 C.F.R. § 1201.113

. ¶3 On April 13, 2018 , the appellant filed a petition for enforceme nt of the Board’s f

inal decision alleging that the agency had failed to comply with the Board’s order to reinstate him. Compliance File (CF), Tab 1. In particular, he alleged that the agency had improperly abolished his prior position to prevent him
from returning to it and improperly detailed him to a position as an Administrative Specialist in the Research and Deve lopment Service, a position
which he alleged was not substantially similar to his prior position. Id. at 2

- 3. In response, the agency asserted that it had begu n contemplating abolishing the appellant’s position as redundant in fiscal year 2015 and concl uded the process in January 2018

. CF , Tab 3 at 4

- 5. The agency further represented that there were no vacant super visory GS

- 11 positions, but that it was actively searching for one in which to place the appellant permanently and that it planned to reassign him to a supervisory position in Patient Care Services (PCS) , pending classification of the position. Id. at 5. ¶4 On June 18, 2018 , t he administrative judge issued a compliance initi al decision denying the appella n t ’s petit ion for enforcement. CF, Tab 4
, Compliance Initial Decision (CID). 2 The administrative judge found that the agency proved that it had a compellin g reason for not returning the appellant to his former position based on declarations from agency officials attesting that the former position had been abolished. CID at 3

- 4. The administrative judge further found that the appellant was returned as nearl y as possible to the status quo ante because he was in the same position that he would have been had the agency not

2 The compliance initial decision was erroneously dated June 22, 2018. CID at 1. On August 2, 2018, the administrative judge issued an Erratum Order correcting the date to be June 18, 2018. CF, Ta b 6.4

removed him, abolished his position, and exercised its discretion to temporarily detail him while it searched for another position for him. CID at 4

- 5. ¶5 The appellant has filed a petition for review. Petition for Review ( PFR ) File, Tab 1. The agency has filed a cross petition for review asserting that the appellant’s petition is untimely filed
, and it has also filed a response opposing the

a ppellant’s petition on the merits. PFR File, Tab 4. The appellant has filed a reply. PFR File, Tab 6.

DISCUSSION OF ARGUME NTS ON REVIEW We deny the agency’s cross petition for review. ¶6 In its cross petition for review, the agency argues that the appellant’s petition for review was untimely filed on July 26, 2018 , three days after the July 23, 2018 deadline

. PFR File, Tab 4 at 5. The agency further requests
reconsideration of the Office of the Clerk of the Board’s decision to accept the peti tion as timely. Id. at 5

- 6. We reject the agency’s arguments. The record
reflects that the compliance initial decisi on was erroneously dated June 22 , 2018, and thus, erroneously notified the appellant that the deadline for filing his petition
for review was July 27, 2018
, thirty

- five days after June 22, 2018. CID at 5. The appellant filed his petition for rev iew on July 26, 2018. PFR File, Tab 1. On August 2, 2018, the Office of the Clerk of the Board accepted the appellant’s petition as timely, noti ng that it was filed in accordance with the finality date set
forth in the compliance initial decision. 3 PFR File, Tab 2. Also on August 2, 2018, the administrative judge issued an Erratum Order correcting the date of the compliance initial decision to J une 22, 2018. CF, Tab 6.

3 The agency argues t hat it was prejudiced by this 3

- day delay because
, but for the administrative error
, it “would only [have] had to respond to the PFR on the basis of timeliness, not the merits, which would have conserved valuable resources.” PFR File, Tab 4 at 5. We are not persuaded by this argument. It is equally as likely that, had the appellant been informed of the proper deadline, he would have timely filed his petition for review, necessitating the agency to respond to the merits.5

¶7 The Board’ s regulations provide that a petition for review must be filed within 35 days of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the date of i ssuance, within 30 days after the date he received the initial decision. 5 C.F.R. § 1201.114 (e ). However, t he Board will excuse the late filing of a petition for review on a showing of good cause for the delay. 5 C.F.R. § 1201.114 (g ). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force
, 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal relationship to his inability to timely file his petitio n. Moorman v. Department of the Army
, 68 M.S.P.R. 60 , 62

- 63 (1995), aff’ d
, 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶8 Although we find that the appellant’s petition was not filed within 35 days
of the correct date of the i nitial decision, we find that good cause exists to waive
the filing deadline because the administrative judge erred in informing the appellant of the deadline for filing a petition for review and t he appellant’s petition was submitted in accordance with the administrative judge’s instructions. Accordingly, we accept the appellant’s petition as timely filed. We deny the appellant’s petition for review. ¶9 The agenc y bears the burden of establishing that it has complied with a final
Board order. Spates v. U.S. Postal Service
, 70 M.S.P.R. 43 8 , 441 (1996). Compliance requires that the appellant be returned as nearly as possible to the status quo ante consist ent with the terms of the Board’ s final order. Foreman v. U.S. Postal Service
, 82 M.S.P.R. 332 , 336 (1998). Contentions pertaining to the6

enforcement of a final Board decision are initially considered by the regional or
field office that issued the initial decision. 5 C.F.R. § 1201.182 (a); see Smith v. Department of the A rmy , 89 M.S.P.R. 82 , ¶ 6 (2001). ¶10 We discern no error in the administrative judge’s finding that the agency had a compelling reason fo r not returning the appellant to his former position
because it had been abolished. CID at 3

- 4; s ee, e.g. , Currier v. U.S. Postal
Service , 72 M.S.P.R. 191 , 199 (1996)

. On review, the appellant reiterates his argument below that th e agency had improper motives for abolishing his position. PFR File, Tab 1 at 6

- 7. However, the administrative judge considered and rejected such an ar gument. CID at 3

- 4. Thus, the appellant’s argument amounts to mere disagreement with the administrative judge’s finding and does not provide a basis for reversal. See, e.g. , Crosby v. U.S. Postal Service
, 74 M.S.P.R.
98 , 105

- 06 (1997) (finding no reason to d isturb 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
and Human Services , 33 M.S.P. R. 357 , 359 (1987) (same). The appellant also disputes the agency’ s assertion that his former position was abolished due to the lack of funding and submits new evidence
, which he contends shows that the budget for full

- time employees has steadily risen fr om 2015 to 2017. PFR File,
Tab 1 at 7, 119

- 21

. The appellant, however, has not explained why he could not
have submitted such evidence , which appears to date back to 2014 and 2016,
before the record below closed, and we decline to consider it for the fir st time on
review. See Banks v. Department of the Air Force
, 4 M.S.P.R. 268 , 271 (1980) (stating that the Board will not consider evidence or argume nt 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). 4

4 For th e same reason, we also decline to consider the appellant ’s argument raised for the first time in his reply that the agency’s action violates its handbook because the7

¶11 The appellant also contends that the agency did not actually abolish his posi tion because another employee in the Diagnostic I maging Service was assigned his duties. PFR File, Tab 6 at 9, 13. However, this is consistent with the agency’s representation that the administrative duties previously under the appellant’s abolished posi tion were divided bet ween the Administrative Officer
and PACS Administrator. CF , Tab 3 at 22. Finally, t he appellant disputes the merits of the agency’s decision to abolish his position and submits new documentation showing that similar organizational structure s , in which a Chief Technologist oversees supervisors and leads
, exist throughout the agency. PFR File, Tab 6 at 10, 16

- 18. He has not , however, explained why he could not have submitted such information below. Regardless, the Board lacks juris diction over matters concerning the agency’s authority to abolish positions. See D’Leo v. Department of the Navy
, 53 M.S.P.R. 44 , 48 (1992). ¶12 Re garding his temporary assignment , the appellant reiterates his argument that the agency made no showing that the duties and responsibilities of his temporary assignment as an Administrative Specialist in the Research and Development Service are substantial ly similar to his former duties and responsibilities as a Chief Supervisory Radiologic Technologist. 5 PFR File,
Tab 1 at 8. In response, the agency points out that it merely temporarily detailed the appellant to the Administrative Services position. PFR File, Tab 4 at 7. Additionally, t he agency has acknowledged that the appellant’s temporary

detail notice was vague and did not specify the duratio n of the detail. PFR File, Tab 6

a t 8, 11

- 12.

5 The appellant also argues for the first time on review that there was an available GS

- 11 position in the Diagnostic Imaging Service to which he could have been assigned. PFR File, Tab 6 at 10. In support of his argument, he submits new evidence dated after the close of the record below consisting of a vacancy announcement for the position of Diagnostic Radiologic Te chnologist (Quality Management), which was open from June 22 to July 13, 2018

. Id. at 15. This position, however, is not a supervisory position

. Id.8

assignment was not a supervisory position , but that no vacant funded supervisory
GS

- 11 positions were available, and it was actively working to reclassifying the
G S

- 11 PCS position to add supervisory duties. CF, Tab 3 at 8. ¶13 The administrative judge found that the agency had not yet reassigned the appellant to a new position. CID at 4. He further found that the appellant was in no worse position than had the agency not rem oved him but instead had abolished his position and te mporarily assigned him duties. Id. at 4

- 5. W e discern no error in the administrative judge’s finding that the agency reinstated the appellant as nearly as possible to the status quo ante when it temporarily assigned him duties while searching for a comparable supervisory GS

- 11 position to which it could permanently reassign him

. We forward the app ellant’s new allegation of non compliance to the regional

o ffice for docketing

. ¶14 A fter the com pliance initial decision was issued
, on July 6, 2018
, the agency issued the appellant a management directed reassignment to the position of Supervisory Ad ministrative Specialist (GS

- 1 1) with PCS, effective August 5,
2018. PFR File, Tab 6 at 19. However, the record does not contain a description of the duties and responsibilities of this position. Thus, it is not clear whether such a position is substantially similar to the appellant’s former Chief Supervisory Radiologic Technologist position. Additional ly, the agency asserts
that
, in lieu of accepting this position, the appellant applied for and accepted a position as an Administrative Specialist in the Research and Development Service, the same position to which he had been temporarily assigned. PFR Fi le,
Tab 4 at 9

- 10. The appellant appears to concede that he accepted the
Administrative Specialist position, but he argues that he did so rather than risk being removed for not meeting the requirements of the PCS Supervi sory Administrative Specialist position due to not having a nursing background . PFR File, Tab 6 at 9.9

¶15 Thus, the evidence before the Board does not show whether the age ncy has complied with the Board’ s final decision with regard to the appellant’s
reinstatement. B ecause contentions per taining to the enforcement of a final Board decision should be considered first by the regional or field office that issued the initial decision, we forward the appellant’s allegation that the agency’s July 6, 2018 management directed reassignment failed t o comply with the Board’s
order to the Northeastern Regional Office for the administrative judge to consider

as a new petition for enforcement of the Board’s final decision

. See 5 C.F.R. § 1201.182 (a); Smith
, 89 M.S.P.R. 82 , ¶ 6.

NOTICE OF APPEAL RIG HTS 6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all
filin g time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropria te in any matter.10

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circ uit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, 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 Board neither endorses the services provided by any attorney nor warrants that any attor ney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision

— including a disposition of you r discrimination
claims

— by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you11

receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board
, 582 U.S. 420 (2017). If you have a representativ e in this case, and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination base d on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court

- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e

- 5 (f) and 29 U .S.C. § 794a

. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_L ocator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues

. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representati ve in this case, and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. If you submit a request for review to the EEOC by regular U.S . mail, the
address of the EEOC is: Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signatur e, it must be addressed to:12

Office of Federal Operations Equal Employment Opportunity Commission

131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U .S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the Presi dent on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent ju risdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.13

Additional information about the U.S. Cou rt of Appeals for the Federal Circuit 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 , 10, 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 Mer it Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

Washington, D.C

. /s/ for Jennifer Everling Acting Clerk of the Board