UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSE E. ROSARIO-FABREGAS,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

NY-0752-17-0147-I-1

DATE: June 14, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jose E. Rosario-Fabregas, San Juan, Puerto Rico, pro se.

Elizabeth Moseley and Elizabeth Vavrica, Jacksonville, Florida, for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his constructive suspension appeal for lack of jurisdiction . On petition 

for review, the appellant argues that the administrative judge erred in construing 

his appeal as a constructive suspension. He further argues, in the alternative, that 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the administrative judge erred in finding that he was not constructively suspended 

because his decision to use leave for the alleged constructive suspension period 

was involuntary and the result of improper agency actions. Generally, we grant 

petitions such as this one only in the following 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 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. Except as 

expressly MODIFIED by this Final Order to address the time period before 

September 27, 2016, we AFFIRM the initial decision.

¶2 Although the appellant’s arguments do not provide a basis for review, we 

find it necessary to clarify the basis for concluding that the appellant was not 

constructively suspended for a portion of the alleged constructive suspension 

period—the period from September 6-26, 2016. The agency attempted to return 

the appellant to duty on September 6, 2016, after imposing his Board ordered 

30-day suspension. Initial Appeal File (IAF), Tab 4 at 26-27, Tab 17 at 7; see 

Rosario-Fabregas v. Department of the Army, MSPB Docket No. NY-0752-13-

0142-I-2, Final Order, ¶ 49 (July 1, 2016). The appellant has identified no 

medical documentation showing that his medical condition had changed between 

2012, when the agency last refused to allow him to return to duty because of his 

medical condition, and September 6, 2016. On September 29, 2016, he submitted 

a note, signed on September 27, 2016, from his treating psychiatrist certifying 
3

that he was medically unable to return to duty. IAF, Tab 4 at 162-63. Thus, for 

the period of September 6-26, 2016, the agency’s request effectively was a 

continuation of its previous requests for medical documentation issued in 2011 

and 2012. See Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468, 

¶¶12-19 (2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016).

¶3 The Board found nothing improper about the agency’s decision not to return 

the appellant to duty in 2011 and 2012, despite his request to return, until he 

provided additional medical documentation confirming his ability to work with or 

without a reasonable accommodation.

2

 Id. The Board further found that the 

agency’s request for medical documentation was an appropriate response to the 

appellant’s reasonable accommodation request, was consistent with the agency’s 

leave procedures and regulations, and was in compliance with the Americans with 

Disabilities Act Amendments Act of 2008 (ADAAA).

3

 Id. Even if the appellant 

was no longer a threat, as previously feared, id., ¶ 17, the question of whether his 

ability to perform the essential functions of his job was impaired by his 

psychiatric condition had not been resolved. IAF, Tab 4 at 26-29. We therefore 

find that the agency did not act improperly when it continued to request a medical 

 

2

The appellant is collaterally estopped from relitigating issues related to his absences 

in 2011 and 2012 because: (1) they are identical to those at issue here; (2) those issues 

were actually litigated; (3) those issues were necessary to the dismissal of his prior 

constructive suspension appeal; and (4) he had a full and fair opportunity to litigate 

those issues in that action. See Rosario-Fabregas, 122 M.S.P.R. 468, ¶¶8-19; McNeil v. 

Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005) (setting forth the four factor test 

for determining when it is appropriate to apply the collateral estoppel doctrine).

3 A disability-related inquiry or medical examination may be job-related and consistent 

with business necessity, and thereby permissible under the ADAAA, if an employer has 

a reasonable belief, based on objective evidence, that: (1) an employee’s ability to 

perform essential job functions will be impaired by a medical condition; or (2) an 

employee will pose a direct threat due to a medical condition. Rosario-Fabregas,

122 M.S.P.R. 468, ¶ 14. Moreover, an agency may request information in order to 

make a decision on a reasonable accommodation request. Id., ¶ 13; 42 U.S.C. 

§ 12111(9)(B) (providing that a modified or part-time work schedule is a type of 

reasonable accommodation); see also 29 C.F.R. § 1630.2(o)(2)(ii) (same).
4

certification clarifying the appellant’s ability to return to duty in September 2016, 

and for refusing his return when he failed to provide it. Id. at 26-29, 87-88, 

146-48. Rather, as the Board found in the appellant’s compliance matter 

regarding the same alleged failure to return to duty, the agency’s request for 

medical information was reasonable. Rosario-Fabregas v. Department of the 

Army, MSPB Docket No. NY-0752-13-0142-C-1, Initial Decision at 5-7, 10

(May 11, 2017), aff’d, Order, ¶ 1 (Dec. 5, 2022); see generally Senior v. U.S. 

Postal Service, 85 M.S.P.R. 283, 287-88 (2000) (recognizing that a physical 

inability to perform constitutes a legitimate reason for an agency’s failure to 

return an appellant to her position after cancellation of an adverse action);

Connor v. U.S. Postal Service, 50 M.S.P.R. 389, 392-93 (1991) (finding that an 

agency did not violate the Board’s reinstatement order by requiring the appellant 

to undergo a fitness-for-duty exam or submit current medical documentation 

before returning him to duty after a lengthy absence and prior history of medical 

inability to work).

¶4 Accordingly, the appellant has not shown that he was constructively 

suspended for this or any of the other time periods at issue. The administrative 

judge’s failure to properly address his allegations regarding the time period 

before September 27, 2016, in particular is not a basis for review. See Panter v. 

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an 

adjudicatory error that is not prejudicial to a party’s substantive rights provides 

no basis for reversal of an initial decision).

NOTICE OF APPEAL RIGHTS4

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

 

4

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 appropriate in any matter.
5

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 below 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 filing 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 your 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. 

(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 Circuit 

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 
6

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 Merit 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. 

(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 your 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 you 

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 representative 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 based 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_Locator/CourtWebsites.aspx. 
7

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 representative 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 signature, it must be addressed to: 

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) other 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 
8

of appeals of competent jurisdiction.5The 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 

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 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 Merit 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.

 

5

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 President 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 jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

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