UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CALVIN J. MOSLEY, DOCKET NUMBER
Appellant, CH-0752-10-0469-C-1
v.
DEPARTMENT OF VETERANS DATE: September 28, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Calvin J. Mosley, Gary, Indiana, pro se.
Janet M. Kyte, Esquire, Hines, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant appealed his removal from a position as a Social Worker,
GS 0185-09, with the agency’s Gary Area Vet Center in Gary, Indiana. Mosley v.
Department of Veterans Affairs, MSPB Docket No. CH-0752-10-0469-I-1, Initial
Appeal File (IAF), Tab 1, Tab 9, Subtabs 4a-4b. He was removed for failure to
obtain licensure as a social worker, which was required for his position. IAF,
Tab 9, Subtab 4e. After the parties executed a settlement agreement, which was
entered into the record, the Board dismissed the appeal as settled. See IAF,
Tabs 13-14. In the settlement agreement, the appellant agreed to withdraw his
Board appeal. IAF, Tab 13 at 2. In return, the agency agreed to remove the
Standard Form 50 (SF-50) reflecting the appellant’s removal from his Official
Personnel Folder and replace it with an SF-50 reflecting that he voluntarily
resigned from the agency for personal reasons. Id. at 2. The agency also agreed
not to object to his application for Illinois unemployment insurance benefits. Id.
¶3 The appellant sought review of the initial decision dismissing the appeal as
settled. Petition for Review (PFR) File, Tab 1. The Board considered the
appellant’s petition for review and found that he failed to meet his burden of
showing that the settlement agreement should be invalidated. Mosley v.
3
Department of Veterans Affairs, MSPB Docket No. CH-0752-10-0469-I-1, Final
Order at 2-3 (Jan. 21, 2011) (located at PFR File, Tab 4). The appellant filed this
petition for enforcement, claiming that the agency breached the settlement
agreement when it failed to pay him 1 year’s salary in the amount of $57,193.00
or make any other monetary settlement. See Compliance File (CF), Tab 1. He
admitted, however, that the agency had met the other terms of the settlement
agreement. Id. He also asked the Board to invalidate the settlement agreement
and reopen his appeal. Id.; CF, Tab 8 at 3.
¶4 The administrative judge properly denied the petition for enforcement. See
CF, Tab 9, Compliance Initial Decision. To the extent that the appellant is still
seeking to invalidate the settlement agreement, see Compliance Petition for
Review File (CPFR), Tab 1 at 1, 3, the issue was litigated when the Board
reviewed the administrative judge’s dismissal of the appeal as settled. The
doctrine of res judicata precludes parties from relitigating issues that were, or
could have been, raised in the prior action, and is applicable if: (1) the prior
judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 337 (1995). Here, all prongs of the test have
been met.
¶5 As for the appellant’s petition for enforcement, a settlement agreement is a
contract, and as such, the Board will enforce it according to contract law. Allen
v. Department of Veterans Affairs, 112 M.S.P.R. 659, ¶ 7 (2009), aff’d,
420 F. App’x 980 (Fed. Cir. 2011). The Board will enforce a settlement
agreement that has been entered into the record in the same manner as a final
Board decision or order. Id. The agreement here has been entered into the record
for enforcement purposes, as the parties intended. IAF, Tab 14 at 1-2; see IAF,
Tab 13 at 2. Where the appellant alleges noncompliance with the agreement, the
agency must produce relevant material evidence of its compliance or show that
4
there was good cause for noncompliance. Allen, 112 M.S.P.R. 659, ¶ 7. The
ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
¶6 In construing a settlement agreement, the Board looks first to the terms of
the agreement itself to determine the intent of the parties at the time they
contracted. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.
1988). The Board will consider extrinsic evidence of intent (evidence from
outside of the four corners of the agreement) only if the terms of the agreement
are ambiguous. Id.; see, e.g., Mital v. Department of Agriculture, 116 M.S.P.R.
589, ¶¶ 6-9 (2011).
¶7 The settlement agreement required the agency to undertake only the two
actions that the appellant acknowledged have been performed: revising his SF-50
to indicate he resigned for personal reasons and refraining from contesting his
application for unemployment benefits. See IAF, Tab 13 at 2. The settlement
agreement does not state that the agency agreed to pay the appellant a monetary
settlement. Id. at 2-4. Indeed, in paragraph 2, the appellant specifically waived
“any and all rights to seek any personnel records adjustment or any other
remedies for any matters arising out of or related to his employment with the
Agency.” Id. at 2 (emphasis added). In paragraph 10, he acknowledged that the
agreement constituted “the entire understanding between the parties, and there are
no other terms or commitments, verbal or written.” Id. at 3. Finally, in
paragraph 9, the appellant acknowledged he entered into the agreement
“knowingly and voluntarily.” Id.
¶8 After the record closed on review, the appellant submitted two motions for
leave to submit additional pleadings. In the first motion, he requests an
opportunity to submit “additional evidence and an additional witness to establish
that due process was obstructed in the initial ruling.” The motion simply restates
the arguments he made in his petition for review. CPFR File, Tab 1 at 1, 3,
Tab 8. As we have explained, he has already litigated the matter of whether the
5
settlement agreement should be invalidated and the appeal reopened. In the
second, he asks for an opportunity to restructure his petition for review so that the
Board might better understand his arguments. CPFR File, Tab 10. Again, it
appears that he is requesting one more opportunity to present arguments that have
been addressed above. We deny both motions.
¶9 Because the agreement set forth the agency’s obligations clearly and
without ambiguity, the Board will not look beyond the four corners of the
agreement. Mital, 116 M.S.P.R. 589, ¶ 6. The appellant’s arguments are
unavailing and we thus deny the petition for review and affirm the initial
decision. 2
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
2
The petition for review includes several attached documents pertaining to the
appellant’s underlying removal appeal. The oldest of these documents is dated
February 4, 2010. The documents do not meet the Board’s definition of new and
material evidence, or otherwise justify the granting of this petition for review. See
5 C.F.R. § 1201.115(d) (“Situations in which the Board may grant a petition or cross
petition for review include . . . a showing that [n]ew and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not available
when the record closed.”).
6
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.