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ROSARIO-FABREGAS v. MERIT SYSTEMS PROTECTION BOARD

2015-3102.

833 F.3d 1342 (2016)

Jose E. ROSARIO-FABREGAS, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Department of the Army, Intervenor.

United States Court of Appeals, Federal Circuit.

Decided: August 16, 2016.

Attorney(s) appearing for the Case

ROBERT J. GAJARSA , Latham & Watkins LLP, Washington, DC, argued for petitioner. Also represented by BRETT MATTHEW SANDFORD , Menlo Park, CA.

STEPHEN FUNG , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by BRYAN G. POLISUK.

KRISTIN McGRORY , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for intervenor. Also represented by BENJAMIN C. MIZER , ROBERT E. KIRSCHMAN, JR. , ELIZABETH M. HOSFORD ; JOHN KASBAR , U.S. Army Corps of Engineers, Jacksonville, FL.

Dissenting opinion filed by Circuit Judge Dyk.

Mr. Jose Rosario-Fabregas seeks review of a final decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction after concluding that Mr. Rosario was not constructively suspended during his four month absence from work. Because the Board's decision applied the correct legal standard to determine...

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