Case: 20-133   Document: 13    Page: 1    Filed: 07/20/2020




          NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

               In re: MITCHELL WINE,
                        Petitioner
                 ______________________

                        2020-133
                 ______________________

   On Petition for Writ of Mandamus to the Merit Sys-
tems Protection Board in No. DA-0752-18-0116-X-1.
                 ______________________

                     ON PETITION
                 ______________________

 Before O’MALLEY, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
                       ORDER
    Mitchell Wine petitions for a writ of mandamus
ordering the Merit Systems Protection Board to rescind
his settlement agreement with the Department of the
Interior (“the agency”), to reinstate his adverse action
appeal, and to order the United States Fish and Wildlife
Service (“FWS”) to produce, without redaction, documents
he requested under the Freedom of Information Act and
Privacy Act (collectively, “FOIA”). Mr. Wine also requests
costs associated with the petition. The Board and the
agency oppose the petition. Mr. Wine replies.
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2                                              IN RE: WINE




                      BACKGROUND
    In December 2017, the agency removed Mr. Wine
from his position at the FWS, and Mr. Wine filed an
appeal at the Board challenging that adverse action. In
April 2018, an administrative judge (“AJ”) dismissed Mr.
Wine’s appeal after the parties entered into a settlement
agreement. As relevant here, the agency agreed to pro-
vide the Standard Form (“SF”) 3112B and to cooperate if
Mr. Wine elected to apply for disability retirement.
    Mr. Wine subsequently filed a petition for enforce-
ment (“PFE”), which the AJ granted in part on February
20, 2019. Specifically, the AJ found that, while the agen-
cy provided Mr. Wine with the SF 3112B, the agency
included information concerning unsatisfactory conduct in
the form that was beyond the parameters of the agree-
ment. Accordingly, the AJ ordered the agency to provide
Mr. Wine with a revised form. 1
    Neither party appealed the ruling. Subsequently, the
agency filed a notice of compliance. Mr. Wine responded
by disputing the agency’s claims and asked to reopen the
compliance decision. The case was referred to the Board.
On July 10, 2019, the Acting Clerk of the Board issued an
order asking Mr. Wine to clarify how he would like to
proceed and, in particular, whether he was asking for the
Board to rescind the settlement agreement based on a
breach found in the AJ’s decision.




    1  The AJ further found that, although the agency
made a good faith effort to cooperate, its handling of Mr.
Wine’s disability retirement application up to that point
was careless and negligent. The AJ noted that the agency
had suggested for Mr. Wine to resubmit his application
and directed the agency to cooperate if Mr. Wine wanted
the agency to submit his application on his behalf.
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IN RE: WINE                                                    3



    In response, Mr. Wine stated that he “wishes to re-
scind the [agreement] and reinstate his original appeal.”
Attach. to Am. Pet., ECF No. 3 at 9. The agency opposed
rescission, arguing that the breach was not material. See
Agency’s Resp. at Appx79–80. The agency has also in-
formed the Board that it fully complied with the February
2019 decision and that Mr. Wine is receiving disability
benefits. See Board’s Resp. at Appx42–43. Not having
heard anything further from the Board, Mr. Wine filed
this petition.
                       DISCUSSION
    The remedy of mandamus may be “invoked only in
extraordinary situations.” Kerr v. U.S. Dist. Court for the
N. Dist. of Cal., 426 U.S. 394, 402 (1976) (citations omit-
ted). A party seeking mandamus must show a “clear and
indisputable” right to relief, no adequate alternative
means to obtain the relief desired, and that issuance of
the writ is appropriate under the circumstances. Cheney
v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367,
380–81 (2004) (internal quotation marks and citations
omitted).
    Mr. Wine appears to premise his right to rescission on
the Board having found the agency materially breached
the agreement. See Am. Pet. at 1 (contending that the AJ
“found the Agency breached the settlement agreement”
and the “MSPB stated in writing” in the Clerk’s July 2019
order “that Petitioner had a right to reinstate his underly-
ing appeal due to the negligent settlement breach citing
Burke v. Department of Veterans Affairs, 121 M.S.P.R.
299, ¶ 12 (2014).”); see also Burke, 121 M.S.P.R. at 307
¶ 12 (“When one party commits a material breach of a
settlement agreement, the other party ordinarily is enti-
tled to either enforce the settlement agreement or to
rescind it and to reinstate his appeal.”).
    In fact, however, the Board’s February 2019 decision
did not make a finding regarding whether any breach by
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4                                                IN RE: WINE




the agency was material. Nor did the July 10, 2019 order
of the Board inform Mr. Wine that he has the right to
rescission and reinstatement. The Clerk’s order merely
stated the holding of Burke. It did not find that he was
entitled to that relief. To the contrary, the order sought
clarification as to whether Mr. Wine was seeking rescis-
sion and the basis for that request. See Board’s Resp. at
Appx32 (noting that “[Mr. Wine]’s submissions and intent
are unclear” and asking for clarification whether he is
seeking rescission or enforcement).
     Although Mr. Wine subsequently clarified that he is
seeking rescission, we cannot say that Mr. Wine has
shown entitlement to compel granting that request. The
issues of material breach and whether Mr. Wine is enti-
tled to a rescission and reinstatement of his action are
still before the full Board. Mr. Wine has not shown that
the Board, which currently lacks a quorum, has unlawful-
ly refused to act or that the delay here has been so egre-
gious as to warrant mandamus relief. 2 We also cannot
agree with Mr. Wine’s suggestion that resolution of these
issues are merely ministerial functions that may be
delegated to the Clerk or Office of General Counsel.
    To the extent Mr. Wine is also seeking to challenge
the FWS’s response to his FOIA request, this court lacks
jurisdiction. This court is a court of limited jurisdiction,
which does not include jurisdiction over FOIA actions.
See 28 U.S.C. § 1295. Instead, United States district
courts have exclusive jurisdiction to review disputes
under FOIA. See 5 U.S.C. § 552(a)(4)(B).
    Accordingly,




    2   The court notes that new Board members have
been nominated and that their nominations are pending
before the Senate.
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IN RE: WINE                                                        5



      IT IS ORDERED THAT:
      (1) The petition is denied.
      (2) The request for costs is denied.
                                    FOR THE COURT

          July 20, 2020             /s/ Peter R. Marksteiner
              Date                  Peter R. Marksteiner
                                    Clerk of Court

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