United States Court of Appeals for the Federal Circuit
2006-3050
ROBERT H. LARY, SR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Paul F. Prentiss, Timmermier, Gross & Prentiss, of Omaha, Nebraska, for
petitioner.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC for respondent. On the brief
were Peter D. Keisler, Assistant Attorney General, and Lori J. Dym, Chief Counsel Law
Department Civil Practice, United States Postal Service, of Washington, DC. Of
counsel were Jeanne E. Davidson, Director; Kathryn A. Bleecker, Assistant Director;
and James D. Colt, Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, and Ray E. Donahue, Attorney, Law
Department Civil Practice, United States Postal Service, of Washington, DC.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2006-3050
ROBERT H. LARY, SR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
___________________________
DECIDED: July 3, 2007
___________________________
ON PETITION FOR REHEARING.
Before NEWMAN, DYK, and PROST, Circuit Judges.
DYK, Circuit Judge.
Petitioner Robert H. Lary, Jr. (“Lary”) died on February 17, 2007, after our
original opinion had issued. Lary’s personal representative moved to have Robert H.
Lary, Sr., his father and personal representative, substituted as the petitioner, and the
government moved to vacate our original opinion and dismiss the appeal as moot. In a
separate order issued today, we have granted the motion to substitute and denied the
government’s motion, and the revised official caption is reflected above. In light of the
grant of the motion to substitute and in view of the likelihood of further proceedings
before the Merit Systems Protection Board (“Board”), we think it is appropriate to clarify
our original opinion.
In our original opinion we held that the United States Postal Service (“USPS”)
materially breached its settlement agreement with Lary by failing to provide required
documents in a timely fashion. Lary v. U.S. Postal Serv., 472 F.3d 1363, 1365 (Fed.
Cir. 2006). We vacated the decision of the Board and remanded for entry of a decree of
specific performance and also (in the event that OPM determined, on the merits, that
Lary was entitled to disability retirement payments) an order of back pay and other
relief. Id.
In its petition for rehearing the USPS once again argues that its breach of the
settlement agreement was not material because Lary could have filed a timely
application for retirement benefits even though the application would not have been
complete until the government supplied the necessary documents. We rejected that
argument on two alternative grounds, each of which was sufficient. First, we held that
the government’s argument only went to the question of whether Lary could have
mitigated damages, and not to the materiality of the breach. Second, we stated that
Lary was harmed by the government’s breach because “disability benefits do not begin
to accrue until all application requirements have been met and the application is
complete.” Id. at 1368. The government barely addressed the first alternative ground in
its petition. As to the second it argues the Lary would have received retirement benefits
retroactively to the date of his separation.
Even assuming that retirement benefits would have been awarded retroactively,
this does not call into question our first ground of decision. Even as to our second
2006-3050 2
ground for our decision, it is clear that the government’s breach at least caused Lary’s
actual receipt of any disability retirement benefits to be delayed because his application
would not have been complete as required by the regulations until the USPS supplied
the necessary documents.
The USPS also argues that the Board did not have jurisdiction to order specific
performance. We again disagree. The Board’s power to enforce a settlement
agreement comes from its authority to enforce its own orders, set forth by statute. See
5 U.S.C. § 1204(a)(2) (2006); see also King v. Reid, 59 F.3d 1215, 1218 (Fed. Cir.
1995). The statute broadly grants the Board power to “order any Federal agency . . . to
comply with any order or decision . . . and enforce compliance with any such order.” 5
U.S.C. § 1204(a)(2). On its face, the statute does not limit the Board’s authority to any
particular means of enforcing compliance with its orders or prevent it from ordering
specific performance. See also 5 C.F.R. § 1201.41(c)(2)(i) (regulation relating to
settlements providing that “the Board will retain jurisdiction to ensure compliance with
the agreement”).
The Back Pay Act, 5 U.S.C. § 5596(b)(1), is not inapplicable to this situation if
Lary would have been entitled to disability retirement benefits. 1 Lary would have been
entitled to recover back pay for an employment period for which he was not properly
compensated. See Drummer v. Gen. Servs. Admin., 22 M.S.P.R. 432, 435 n.2 (1984)
(“Cancellation of the removal action includes an award of back pay and other benefits
for the time period involved.”); 5 C.F.R. § 550.805(a) (“When an appropriate authority
1
Of course, as we noted in our original opinion, in order to avoid a windfall,
in the event that the Board determined that Lary was not entitled to disability retirement
payments, Lary would not have been entitled to back pay.
2006-3050 3
corrects or directs the correction of an unjustified or unwarranted personnel action . . .
the agency shall compute . . . the pay . . . the employee would have received if the
unjustified or unwarranted personnel action had not occurred.”).
In clarifying our original opinion, we express no view as to the ultimate outcome
of this proceeding on remand. The petition for rehearing is denied.
2006-3050 4