UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE, DOCKET NUMBER
Appellant, DA-0752-18-0116-X-1
v.
DEPARTMENT OF THE INTERIOR, DATE: February 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mitch Wine, Mountain View, Arkansas, pro se.
Lindsey Gotkin, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 In a February 20, 2019 compliance initial decision, the administrative judge
found the agency in noncompliance with the April 30, 2018 initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 no t
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
dismissing the appellant’s removal appeal as settled. 2 Wine v. Department of the
Interior, MSPB Docket No. DA-0752-18-0116-C-1, Compliance File (CF), Tab
19, Compliance Initial Decision (CID); Wine v. Department of the Interior, MSPB
Docket No. DA-0752-18-0116-I-1, Tab 56, Initial Decision (ID). For the reasons
discussed below, we find the agency in compliance and DISMISS the petition for
enforcement.
BACKGROUND
¶2 On April 30, 2018, the administrative judge issued an initial decision
dismissing the appellant’s removal appeal on the basis of a settlement agreement
submitted by the parties. ID at 1-2. As explained below, neither party filed a
timely petition for review, and thus the initial decision became the final decision
of the Board with respect to the appellant’s removal and the entry of the
settlement agreement into the record for future enforcement.
¶3 The settlement agreement provided, in relevant part, that the agency would
withdraw its original termination memorandum (which removed the appellant for
misconduct) and replace it with a memorandum terminating the appellant for
inability to perform the essential functions of his position . The agency was
further required to restore the appellant’s pay and leave balances from the date of
his original termination until the date his terminat ion for medical reasons became
effective. See CID at 4-6. The appellant was required to “unequivocally accept
his termination for medical reasons” and waive any appeal, grievance, or other
right he might have to contest the termination for medical reason s. See CID
2
On November 26, 2021—more than 3 years after issuance of the initial decision, and
more than 2 years after issuance of the compliance initial decision underlying the
instant compliance referral matter—the appellant petitioned for review of the initial
decision. On February 10, 2023, the Board dismissed his petition for review as
untimely filed without good cause for the delay. Wine v. Department of the Interior,
MSPB Docket No. DA-0752-18-0116-I-1, Final Order (Feb. 10, 2023). Thus, the
operative decision regarding the parties’ settlement obligations remains the April 30,
2018 initial decision dismissing the removal appeal as settled.
3
at 4-5. Finally, the settlement agreement contained the following language
relevant to this petition for enforcement:
The Agency and the Appellant agree to cooperate with each other
when/if the Appellant applies for disability retirement. The Agency
specifically agrees to supply a Form 3112B (Supervisor’s Statement)
that will express the Agency’s belief that the Appellant is not able to
perform the essential functions of his position due to his medical
condition, that it has attempted to accommodate him but cannot do
more than it has already done due to his medical condition, and that
it has no ability to transfer him to another suitable position due to his
medical condition. The Appellant acknowledges that the Agency is
not guaranteeing he will be deemed eligible for disability retirement,
as that decision is not the Agency’s decision to make.
See CID at 6.
¶4 On September 19, 2018, the appellant filed this petition for enforcement, 3
primarily alleging that the agency had failed to pay him severance pay and that
the revised termination memorandum improperly stated that his removal for
medical inability to perform was taken for the efficiency of the service. See CID
at 7-10.
¶5 On February 20, 2019, the administrative judge issued a compliance initial
decision finding the agency partially noncompliant with the settlement agreement.
The administrative judge rejected the appellant’s claim to severance pay, finding
that the settlement agreement did not require such payment. CID at 10. The
administrative judge further rejected the appellant’s claim that the agency
3
On March 26, 2019, the appellant filed a second petition for enforcement, which the
administrative judge dismissed in part and denied in part. Wine v. Department of the
Interior, MSPB Docket No. DA-0752-18-0116-C-2, Compliance File, Tab 1, Tab 28,
Compliance Initial Decision. On July 1, 2019, the appellant filed a third petition for
enforcement, which the administrative judge dismissed. Wine v. Department of the
Interior, MSPB Docket No. DA-0752-18-0116-C-3, Compliance File, Tab 1, Tab 13,
Compliance Initial Decision. Neither party petitioned for review in either case, and
neither is before us in the present matter. The appellant has three other cases pending
on petition for review that likewise are not before us in the present matter. See Wine v.
Department of the Interior, MSPB Docket No. DA-1221-16-0513-W-2; Wine v.
Department of Veterans Affairs, MSPB Docket No. DA-1221-21-0342-W-1; Wine v.
Department of the Interior, MSPB Docket No. DA-4324-21-0377-I-1.
4
violated the settlement agreement through its language in the revised termination
memorandum, noting that the Board has held that removal for medical inability to
perform the essential functions of one’s position promotes the efficiency of the
service. CID at 10-11.
¶6 However, the administrative judge found that the agency failed to establish
that it fully complied with the cooperation provision set forth above. The
administrative judge faulted the agency’s cooperation with the appellant’s
disability retirement application in two respects. First, although the appellant had
submitted a disability retirement application to the agency for transmission to the
Office of Personnel Management (OPM) on his behalf, the agency had lost the
documentation and was unable to confirm that it had transmitted the entire
application to OPM. CID at 11-12. The administrative judge found that the
agency’s handling of the application was “careless and negligent” but not
bad-faith noncompliance. CID at 16-17. Second, the administrative judge found
that the copy of the Standard Form 3112B (SF-3112B), Supervisor’s Statement,
that the agency located (apparently as part of the materials the agency had
prepared to submit to OPM with the appellant’s lost disability retirement
application) used language incompatible with the cooperation provision of the
settlement agreement. The administrative judge expl ained that the SF-3112B
contained references to the appellant’s “unsatisfactory conduct” and that this was
at odds with the agreement that the agency provide an SF-3112B that would
“express the Agency’s belief that the Appellant is not able to perform the
essential functions of his position due to his medical condition, that it has
attempted to accommodate him but cannot do more than it has already done due
to his medical condition, and that it has no ability to transfer him to another
suitable position due to his medical condition.” CID at 15. The administrative
judge found that the language used by the agency breached the settlement
agreement, but she did not address whether the breach was material . CID at 16.
5
¶7 The administrative judge ordered the agency to provide the appellant the
following: a revised SF-3112B eliminating the information that contravened the
cooperation provision; a SF-3112D (Agency Certification of Reassignment and
Accommodation Efforts) “completed in accordance with the information s et out
in the parties’ settlement agreement”; and a completed copy of SF -3112E
(agency-completed Disability Retirement Application Checklist). CID at 18 -19.
The administrative judge further instructed the appellant to inform the agency
whether he wished to submit his disability retirement application directly, or
resubmit it to the agency for transmittal to OPM on his behalf. CID at 17 -18.
Finally, the administrative judge directed the parties to work to complete the
application and send it to OPM “without further delay,” and advised the appellant
of the relevant deadline and how to meet it, regardless of whether he submitted
his application directly or through the agency and regardless of whether he
received completed copies of the forms from the agency. CID at 18 & n.13.
¶8 In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the actions required by the decision, it must
submit to the Office of the Clerk of the Board, within the time limit for filing a
petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the
actions identified in the compliance initial decision, along with evidence
establishing that it had taken those actions. CID at 19-20; 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
March 27, 2019, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 20; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party filed a petition
for review of the compliance initial decision with the Board.
¶9 The agency timely filed a statement that it had taken the actions identified
in the compliance initial decision, and the appellant’s petition for enforcement
accordingly was referred to the Board for a final decision on issues of
6
compliance. Wine v. Department of Interior, MSPB Docket No. DA-0752-18-
0116-X-1, Compliance Referral File (CRF), Tab 2. The parties subsequently filed
multiple pleadings contesting, among other things, the agency’s obligations, the
scope of the compliance initial decision and its relation to the appellant’s other
MSPB and non-MSPB litigation, and the outcome of the appellant’s disability
retirement application. As explained below, we find that the agency cured any
material breach of the settlement agreement and that, under the circumstances, the
appellant is not entitled to rescission of the settlement agreement.
ANALYSIS
¶10 A settlement agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans Affairs,
121 M.S.P.R. 299, ¶ 8 (2014). 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. When the appellant alleges noncompliance with a set tlement
agreement, the agency must produce relevant material evidence of its compliance
with the agreement or show that there was good cause for noncompliance. Id.
The ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
¶11 Over the course of the compliance referral litigation, the agency submitted
an evolving series of pleadings, supported by documentation, noting that it had
completed the three forms as ordered by the compliance initial decision; that it
had submitted the appellant’s completed disability retirement application to OPM
on April 26 and 29, 2019, before his 1-year filing deadline expired; that it had
attempted to further the success of the appellant’s disability retirement
application by informing him that OPM wanted him to submit a SF-3107, but the
appellant refused to cooperate; and that OPM had approved the appellant’s
disability retirement application and the appellant was receiving interim benefits
7
until OPM could finalize his benefits determination. CRF, Tab 1 at 5, Tab 8 at
4,6,10, Tab 13 at 8-14, Tab 19 at 9-13, 16, 21.
¶12 The appellant countered these submissions with claims that the settlement
agreement was invalid or unlawful; that the agency unlawfully accessed his
medical records to remove him from his job; that the administrative judge should
have awarded him interim relief to remedy delays in processing his disability
retirement application caused by the agency’s actions; that the agency did not
cooperate in submitting his disability retirement application, as ordered by the
administrative judge; that the agency lied about its communications with OPM
and transmitted information to OPM that would doom his disability retirement
application; and that OPM’s eventual grant of benefits was for a shorter time
frame than expected “as a result of the Agency’s ‘careless’ and ‘negligent’ breach
of the settlement agreement.” CRF, Tab 6 at 5-6, Tab 7 at 4-5, Tab 9 at 5-6, Tab
16 at 4, Tab 24 at 5. The appellant also made various claims related to his 2016
workers compensation litigation, argued that he was entitled to consequential or
compensatory damages, and moved for sanctions against the agency. CRF, Tab 7
at 4-5, 7, Tab 18 at 4-5. Finally, in response to the Board’s request that he clarify
the relief he sought if he prevailed, he stated that he wished to rescind the
settlement agreement and reinstate his removal appeal because the agency did not
timely submit his disability retirement application to OPM. CRF, Tab 11, Tab 12
at 4-5.
¶13 Having carefully considered both parties’ submissions, we find that the
agency has fully complied with its obligations under the settlement agreement and
with the instructions in the compliance initial decision. The appellant has not
submitted evidence supporting his arguments that the agency failed to cooperate
with him, lied to OPM, or otherwise impeded the timely submission and
processing of his disability retirement application. By contrast, the agency
submitted evidence that it revised the documents in accordance with the
administrative judge’s instructions and submitted the appellant’s disability
8
retirement application to OPM despite the appellant’s lack of cooperation and
abusive language and behavior toward agency counsel. CRF, Tab 1 at 5, Tab 19
at 9-13. The agency also provided evidence that OPM approved the application.
CRF, Tab 19 at 16, 21. Although the appellant variously insists that the
application was untimely filed or that the benefits awarded were for a shor ter time
frame than expected due to the agency’s original failure to submit his application,
he has not provided anything to substantiate these claims. Moreover, the
settlement agreement expressly disclaimed any guarantee by the agency that the
appellant would be deemed eligible for disability retirement. See CID at 6. It
follows, therefore, that the settlement agreement did not guarantee that the
appellant would receive a certain amount in benefits or that the benefits would
flow from a certain date. The appellant has not pointed to any specific error in
the agency’s portion of the application forms that could have impacted the
starting date or amount of his benefits. Indeed, as the agency pointed out, the
appellant himself refused to submit an updated version of the SF-3107 as
requested by OPM, and it is not clear what effect, if any, such refusal may have
had on his application. Accordingly, we find that the agency has complied with
its obligations.
¶14 Although the appellant seeks to rescind the settlement agreement and
reinstate his removal appeal due to the original breach of the agreement, we hold
that such relief is inappropriate where, as here, the agency has cured the breach
and the appellant has received the full benefit of his bargain. See Tretchick v.
Department of Transportation, 109 F.3d 749, 752 (Fed. Cir. 1997) (rejecting
suggestion that there is an “absolute right” to rescission in response to a breach
and rejecting rescission where any purported breach had been cured) ; King v.
Department of the Navy, No. 98-3342, 1999 WL 37406, at *2 (Fed. Cir. Jan. 12,
9
1999) (unpublished) 4 (affirming denial of rescission where the agency had cured
its breach of the settlement agreement 6 years later, and the appellant provided no
evidence that she was harmed by the breach or the delay in curing it); cf. Lutz v.
U.S. Postal Service, 485 F.3d 1377, 1381-82 (Fed. Cir. 2007) (finding material
breach potentially justifying rescission where “negative statements contained in”
the agency forms “prejudiced the disability proceedings” and resulted in denial of
benefits). Thus, assuming arguendo that the agency’s breach was materia l—
which the administrative judge did not address, and we need not now decide —we
find that, as in Tretchick, rescission is inappropriate because the agency cured its
breach of the agreement and the appellant received all the benefits to which the
agreement entitled him. Although it is conceivable that the appellant might have
received his disability retirement benefits sooner if the agency had not lost his
original application, the settlement agreement did not require that the agency act
within a particular time frame. It merely required that the agency cooperate with
the appellant “when/if” the appellant applied for disability retirement , which the
agency ultimately did, such that the application was granted . This is in contrast
to the situation in Lutz, 485 F.3d at 1381-82. It is also distinguishable from Lary
v. U.S. Postal Service, 472 F.3d 1363 (Fed. Cir. 2006), clarified on denial of
rehearing, 493 F.3d 1355 (Fed. Cir. 2007), in which the agency’s failure to
provide necessary documents within the specific time frame set by the settl ement
agreement caused the appellant’s disability retirement application to be denied as
untimely filed. That is not the case here, where the agency ultimately managed to
timely file the application on the appellant’s behalf. Moreover, the appellant
based his rescission request on his erroneous belief that the agency did not timely
submit his application to OPM. CRF, Tab 12 at 4-5. If the appellant believes
OPM’s annuity calculation is incorrect as to the substance or the starting date of
4
The Board may follow a nonprecedential decision of a court when it finds its
reasoning persuasive, as we do here. Edwards v. Department of Labor, 2022 MSPB 9,
¶ 16 n.6.
10
the benefits, he separately may challenge OPM’s decision in accordance with the
documentation provided to him by OPM with regard to his appeal rights. 5
¶15 We deny the appellant’s various other claims as outside the scope of this
proceeding. His claim that the agency illegally accessed his medical records was
denied in his second compliance proceeding, Wine v. Department of the Interior,
MSPB Docket No. DA-0752-18-0116-C-2, Compliance File, Tab 28, Compliance
Initial Decision at 4-6, and the appellant did not seek further review of that
decision. His claims regarding whistleblower reprisal and violations of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) are before the Board in three
separate appeals, as explained above, supra ¶ 4 n.3, and are not part of this case.
His attempts to relitigate another forum’s denial of his workers compensation
benefits likewise are not properly before us and are not relevant to this case. In
light of the disposition reached in this decision, we deny the various motions to
strike, for sanctions, for transfer of this matter to a United States district court,
and other forms of relief sought by the parties. 6
¶16 Having found the agency in compliance, we dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Boar d in
this compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
5
We express no opinion on whether any such challenge would be timely.
6
We deny the appellant’s request that Member Leavitt recuse himself on the basis of
having “sabotaged” the appellant’s whistleblower claims at the Office of Special
Counsel. See CRF, Tab 21 at 4. Member Leavitt was not employed by the Office of
Special Counsel during the relevant time frame; and even if he had been, the appellant
has offered no specifics regarding the alleged sabotage or other purported conflict of
interest. Although Member Limon has recused himself from this case, his recusal is not
related to the appellant’s claims of conflict or bias.
11
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
13
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at the ir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, t hen you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.