In Rivera v. Social Security Administration, CAFC No. 2017-1585, 7/14/17, a Translator argued that due process was denied him during his removal appeal because he was not proficient in English and his request for a translator was denied.
The MSPB administrative judge ordered up a translator to help with the hearing. When Mr. Rivera failed to comply with discovery orders and failed to appear for two pre-hearing conferences, the judge found his explanations contained false information.
As a result, the judge sanctioned Rivera by cancelling the hearing and ruling against him based on the written record. The full Board affirmed and Mr. Rivera went to the appeals court.
In its recent ruling, the court pointed out that Mr. Rivera’s Translator position required him to possess Spanish and English “equivalent to that of a native speaker.” (p. 2) However, his main argument on appeal centered on lack of due process since he “lacked proficiency in English—a somewhat ironic contention given that he was employed as an English/Spanish Translator,” says the court. (p. 2)
According to the court’s decision, Rivera’s removal was based on several charges, including shouting at his boss and making a threatening comment to him, not to mention absence without leave and providing false information to a supervisor.
Rivera argued that the MSPB judge abused her discretion when she imposed sanctions by canceling his hearing. He claimed his shortcomings in responding to the judge’s orders were due to his lack of English proficiency. Not so, ruled the court: “Based on the evidence that Mr. Rivera can read, write, speak, and understand English, we find that the Administrative Judge did not abuse her discretion in denying Mr. Rivera an interpreter or imposing sanctions.” (pp. 4-5)
MSPB decision is affirmed.