This morning, the Federal Circuit released one nonprecedential opinion. It addresses a pro se challenge to a judgment of the Merit Systems Protection Board. Here is the introduction to the opinion.
Rosario-Fábregas v. Department of the Army (Nonprecedential Opinion)
In 2018, José Rosario-Fábregas was removed from his position as a Biologist (Project Manager) with the United States Army Corps of Engineers (Army or agency) based on charges of absence without leave (AWOL), excessive absence, and insubordination. Supplemental Appendix (SAppx)225–26. Mr. Rosario-Fábregas appealed the agency’s removal decision to the Merit Systems Protection Board. SAppx232–37. The assigned administrative judge issued an initial decision, which sustained the AWOL and excessive-absence charges but not the insubordination charge, and which sustained the removal penalty. SAppx37–64. The full Board, on Mr. Rosario-Fábregas’s petition and the agency’s cross-petition in turn, sustained the insubordination charge and affirmed the penalty of removal on that basis, thus finding no need to reach a decision on the AWOL and excessive-absence charges. SAppx1–31, Rosario-Fábregas v. Department of the Army, No. NY-0752-18-0221-I-1, 2023 WL 4034398 (M.S.P.B. June 15, 2023) (Final Order).
On Mr. Rosario-Fábregas’s appeal, we reject all but one of his challenges to the Board’s decision. The exception concerns the application of a provision of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(13). On that issue, we see deficiencies in the Board’s analysis and a need for fuller consideration before a sound conclusion about the application of § 2302(b)(13) here can be reached. We therefore vacate the Board’s decision insofar as it found no violation of § 2302(b)(13) and remand for further proceedings, which may include the § 2302(b)(13) issue and the AWOL and excessive-absence issues the Board did not resolve.