Ricardo J. Rivera v. Social Security Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICARDO J. RIVERA,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2017-1585
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-15-0053-I-l.
______________________
Decided: July 14, 2017
______________________
RICARDO J. RIVERA , Orlando, FL, pro se.
K ARA WESTERCAMP , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
P ATRICIA M. MCCARTHY , ROBERT E. K IRSCHMAN, J R., CHAD
A. READLER .
______________________
Before P ROST , Chief Judge, CHEN and HUGHES , Circuit
Judges.

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RIVERA v. SSA 2
P ER CURIAM .
Ricardo Rivera was removed from his position as a
Translator for the Social Security Administration. On
appeal, he makes a number of arguments for why the
Merit Systems Protection Board improperly sustained his
removal, but his primary arguments focus on a lack of due
process in the agency removal process and at the board
hearing because he lacked proficiency in English—a
somewhat ironic contention given that he was employed
as an English/Spanish Translator. Because substantial
evidence supports the Board’s finding that Mr. Rivera is
English-proficient as well as the facts underlying the
removal, we affirm.
I
As noted, Mr. Rivera was employed at the Social Se-
curity Administration as a Translator. That position
required him to possess knowledge of both Spanish and
English equivalent to that of a native speaker. He was
removed from his Translator position on September 26,
2014, based on charges that he shouted at his supervisor
and mentor during a performance review, made a threat-
ening remark to his supervisor, was absent without leave,
and provided false information to a superior.
Mr. Rivera appealed his removal to the Merit Systems
Protection Board. During his appeal, Mr. Rivera request-
ed the assistance of an interpreter. The Administrative
Judge initially denied that request, but eventually grant-
ed him an interpreter to aid only with the hearing. How-
ever, after Mr. Rivera provided false information in
response to why he failed to appear for two scheduled pre-
hearing conferences, the Administrative Judge sanctioned
Mr. Rivera by cancelling the hearing. The Administrative
Judge also sanctioned Mr. Rivera for repeatedly failing to
comply with discovery orders by denying him the oppor-
tunity to assert additional affirmative defenses and to
submit evidence of his existing affirmative defenses.

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RIVERA v. SSA 3
Based on the written record, the Administrative
Judge found evidence sufficient to support the Agency’s
charges. The Board affirmed the decision and Mr. Rivera
appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
We may set aside a Board decision only when it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.’” 5
U.S.C. § 7703(c). “Substantial evidence is more than a
mere scintilla of evidence, but less than the weight of the
evidence.” Jones v. Dep’t of Health & Human Servs., 834
F.3d 1361, 1366 (Fed. Cir. 2016) (internal citations and
quotation marks omitted). To find an abuse of discretion,
we must find an error caused substantial harm or preju-
dice “such that the outcome of the case could have been
affected.” Becker v. Office of Pers. Mgmt., 853 F.3d 1311,
1315 (Fed. Cir. 2017).
A
Mr. Rivera first claims that his Fifth Amendment Due
Process rights were violated when he was denied an
interpreter during his initial removal proceedings. The
Due Process Clause requires that employees removed
from federal service receive notice of the charges underly-
ing their removal and an opportunity to respond to those
charges. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546–48 (1985). Although Mr. Rivera was provided
with all the materials forming the basis of his removal
and given time to respond, he argues that his notice and
opportunity to respond were insufficient because the
Agency did not afford him the aid of an interpreter.
The Board concluded that Mr. Rivera’s removal satis-
fied the requirements of the Fifth Amendment Due Pro-

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RIVERA v. SSA 4
cess Clause because the lack of an interpreter did not
hamper his ability to respond to the proposed removal.
Substantial evidence supports this finding because his
position as a Translator required him to possess
“knowledge of both English and Spanish at the level of a
native-born speaker.” Resp. Appx. (R.A.) 54. Likewise,
there is additional evidence that Mr. Rivera was profi-
cient in English. For example, he did not request an
interpreter during his proposed removal proceedings, but
managed to respond to the charges and to correspond with
the deciding official in coherent English. See R.A. 116–18,
132–36, 138, 148. Because substantial evidence supports
the conclusion that Mr. Rivera was capable of compre-
hending and responding to the evidence forming the basis
of his removal, we affirm the Board’s conclusion that the
removal did not violate his Due Process rights.
Mr. Rivera also contends that the Administrative
Judge abused her discretion when she denied his request
for an interpreter to aid him during his appeal. He claims
that Executive Order No. 13166, titled “Improving Access
to Services for Persons with Limited English Proficiency
(LEP),” entitles him to an interpreter. 65 Fed. Reg.
50,121, 50,121 (Aug. 11, 2000). Executive Order No.
13166 does not provide criteria to determine who qualifies
as a person with limited English proficiency. Id. Instead,
Mr. Rivera and the Board both relied on the definition
found on LEP.gov, which provides that LEP individuals
are those who “do not speak English as their primary
language and who have a limited ability to read, speak, or
understand English.” https://www.lep.gov/faqs/faqs.html
(last visited June 23, 2017).
Further, Mr. Rivera contends that it was an abuse of
discretion to impose sanctions because his failure to
comply with discovery orders was due to his limited
English proficiency. Based on the evidence that Mr.
Rivera can read, write, speak, and understand English,
we find that the Administrative Judge did not abuse her

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RIVERA v. SSA 5
discretion in denying Mr. Rivera an interpreter or impos-
ing sanctions.
B
Mr. Rivera also broadly challenges the sufficiency of
the evidence supporting his removal, claiming that he did
not engage in the conduct leading to his removal. But we
conclude that substantial evidence supports the Board’s
finding that Mr. Rivera engaged in the alleged conduct
that led to his removal. R.A. 69–81, 93–96.
III
We have considered Mr. Rivera’s remaining argu-
ments but find them unpersuasive. Because the Board’s
decision is supported by substantial evidence and free
from legal error, we affirm.
AFFIRMED
No costs.

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