UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICTOR E. MORETTA, DOCKET NUMBERS
Appellant, DE-0752-14-0334-I-1
DE-4324-14-0335-I-1
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, DATE: February 2, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Victor E. Moretta, North Fort Myers, Florida, pro se.
Bennett R. Tuchawena, Aberdeen, South Dakota, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
ORDER
¶1 The appellant has filed what was styled as a petition for review of the initial
decision that dismissed these appeals pursuant to a settlement agreement. For the
reasons discussed below, we FORWARD the appellant’s pleadings to the Denver
Field Office for docketing as a petition for enforcement.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 As recounted in the initial decision in these joined appeals, the appellant
asserted that: (1) his resignation of February 3, 2014, was involuntary and
therefore tantamount to an appealable removal action; and (2) the agency violated
the Uniformed Services Employment and Reemployment Rights Act of 1994 by
improperly denying him approved leave without pay for a service-connected
injury. MSPB Docket Nos. DE-0752-14-0334-I-1 & DE-0752-14-0335-I-1,
Initial Decision (ID) at 1-2. At the hearing, the parties reached a settlement
agreement that resolved both appeals, the terms of which are recited in the initial
decision. Among other things, the appellant agreed to withdraw both of his Board
appeals and a discrimination claim pending at the Equal Employment Opportunity
Commission; the agency agreed to cancel the appellant’s resignation and to purge
all documents related to it from his Official Personnel File (OPF), and to
substitute in its place approved leave without pay status from February 3, to May
31, 2014, when it would effect his voluntary resignation. See ID at 2 n.3. 2
¶3 In a pleading filed with the Clerk of the Board 1 day after the deadline
listed in the initial decision for filing a petition for review, 3 the appellant alleged
that the agency breached the terms of the settlement agreement by: (1) failing to
purge his OPF of any reference to his being in an absent without leave status;
(2) creating a negative performance evaluation; and (3) listing his position as
“Substance Abuse Therapist” instead of his proper title, “Family Therapist.”
Petition for Review (PFR) File, Tab 1. He asked the Board to order the agency to
cure these alleged breaches. Id.
2
The parties subsequently reduced the settlement agreement to writing. MSPB Docket
No. DE-0752-14-0334-I-1, Initial Appeal File (IAF), Tab 18.
3
Because of our determination that the appellant’s pleading should be viewed as a
petition for enforcement rather than as a petition for review, we need not decide
whether there was good cause for the untimely filing of a petition for review.
3
ANALYSIS
¶4 As recounted above, the appellant’s contentions are that the agency
breached the settlement agreement that formed the basis for his appeals being
dismissed, and he seeks enforcement of the terms of the settlement agreement as
he understands them. Such contentions and requests constitute a petition for
enforcement. See 5 C.F.R. § 1201.182(a). A petition for enforcement of a
settlement agreement must be filed in the first instance with the regional or field
office that issued the initial decision. Id. Accordingly, the appropriate course of
action is to forward the appellant’s pleadings to the Denver Field Office for
docketing as a petition for enforcement. 4 See Shipp v. Department of Health &
Human Services, 107 M.S.P.R. 264, ¶ 8 (2007).
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
4
Should the terms of the settlement agreement not be enforceable according to the
appellant’s interpretation of the agreement, he asks that the Board declare the
settlement agreement to be null and void and reinstate the underly ing appeals. PFR
File, Tab 3 at 21. The Board may not reopen and reinstate an adverse action appeal that
was dismissed pursuant to a settlement agreement unless that settlement agreement has
been set aside as invalid. See Linares-Rosado v. U.S. Postal Service, 112 M.S.P.R. 599,
¶ 10 (2009). An attack on the validity of a settlement agreement cannot be challenged
in a petition for enforcement; such an attack must be made in the form of a petition for
review of the initial decision dism issing the case as settled. See Weldon v. Department
of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013); Lange v. Department of the Interior,
98 M.S.P.R. 146, ¶ 3 (2005). A party may challenge the validity of a settlement
agreement if he believes that the agreement is unlawful, involuntary, or the result of
fraud or mutual mistake. Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580,
583 (1994). Should the appellant be unsuccessful in his petition for enforcement, he
may file a petition for review of the in itial decision dismissing the original appeals as
settled if he believes he has grounds for setting aside the settlement agreement as
invalid.