                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL D. CROWELL,                             DOCKET NUMBER
                   Appellant,                        DE-1221-11-0535-C-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: October 29, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Michael D. Crowell, Kansas City, Missouri, pro se.

           Natalie Holick, Kansas City, Kansas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 filed a petition for enforcement alleging that the agency had
     breached the settlement agreement in his underlying individual right of action
     (IRA) appeal.    MSPB Docket No. DE-1221-11-0535-C-1, Compliance Appeal
     File (CAF), Tab 1. The settlement agreement had been entered into the record for
     enforcement purposes.     See MSPB Docket No. DE-1221-11-0535-W-1, Initial
     Appeal File (IAF), Tab 17, Initial Decision.       The appellant alleged that, by
     denying his request for a waiver of the mandatory retirement age for his chaplain
     position, which is a law enforcement officer position with a mandatory retirement
     age of 57, the agency breached the provision of the agreement that it would not
     retaliate against him for filing the IRA appeal and/or exercising his right under
     the Whistleblower Protection Act. See CAF, Tab 1; IAF, Tab 15.
¶3         The administrative judge denied the appellant’s petition.       CAF, Tab 7,
     Compliance Initial Decision (CID). The administrative judge found that, even
     assuming the truth of the appellant’s allegations supporting his assertion of
     breach, the appellant failed to show that the agency’s stated reason for denying
     his request for waiver, i.e., that there were qualified candidates available to fill
     the position, was not the true reason for its denial. CID at 6. The administrative
                                                                                      3

     judge found that the appellant conceded that his position could readily be filled
     by another chaplain. CID at 6.
¶4        A settlement agreement is a contract, and, as such, will be enforced in
     accord with 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 which has been entered into the record in the same manner
     as a final Board decision or order.          Id.     Where the appellant alleges
     noncompliance with a settlement 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.
¶5        In his petition, the appellant states that he did not know that he could call
     witnesses in the compliance proceeding. Petition for Review (PFR) File, Tab 1.
     The administrative judge informed the appellant that he had the ultimate burden
     to prove breach by preponderant evidence. CAF, Tab 2. To the extent that the
     appellant’s statement regarding witnesses is an assertion that the administrative
     judge should have held a hearing, his assertion is unavailing. The appellant did
     not request a hearing, and, in any event, the Board’s regulations provide that the
     decision to hold a hearing in a compliance matter is discretionary and there is no
     right to a hearing regarding a petition for enforcement. See King v. Department
     of the Navy, 98 M.S.P.R. 547, ¶ 9 (2005), aff’d, 167 F. App’x 191 (Fed. Cir.
     2006); see also 5 C.F.R. § 1201.183(b)(3).         The administrative judge in his
     discretion may hold a hearing in a petition for enforcement, if necessary to
     resolve disputed facts. See Madison v. Department of Defense, 111 M.S.P.R. 614,
     ¶ 8 (2009), aff’d, 363 F. App’x 26 (Fed. Cir. 2010) (Table); see also 5 C.F.R.
     § 1201.183(a)(3). Here, there were no disputed facts because the administrative
     judge assumed the truth of the appellant’s allegation that the officials who denied
     his request were aware of his protected activity. CID at 6.       As a result, the
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     administrative judge properly exercised his discretion to not hold a hearing in this
     petition for enforcement.
¶6        The appellant submitted additional documents with his petition for review.
     Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted for
     the first time with the petition for review absent a showing that it was unavailable
     before the record was closed despite the party’s due diligence. Avansino v. U.S.
     Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant submitted an email to
     the warden of his facility and correspondence with the office of Senator Pat
     Roberts regarding his situation, all dated before the close of the record below.
     PFR File, Tab 1. These documents were available before the close of the record
     and so we have not considered them.
¶7        The appellant also submits a response to a Freedom of Information Act
     (FOIA) request that he received after the close of the record. Because the FOIA
     request response was unavailable before the close of the record, and thus is new
     evidence, we have considered it. That response document shows that, between
     2001 and 2013, nine chaplains (two Protestants, one Catholic, and six Muslims) at
     various agency facilities were granted age waivers. The Board will not grant a
     petition for review based on new evidence absent a showing that it is of sufficient
     weight to warrant an outcome different from that of the initial decision. Russo v.
     Veterans Administration, 3 M.S.P.R. 345, 349 (1980).       The appellant has failed
     to provide evidence of the circumstances surrounding the age waivers in these
     cases. The appellant’s submission does not include any information that would
     allow a meaningful comparison of these other chaplain’s situations to the
     appellant’s situation. Thus, considering the record as a whole, including the new
     evidence submitted on petition for review, we agree with the administrative
     judge’s finding that the appellant failed to meet his burden to show that
     retaliation in violation of the settlement agreement, and not the availability of
     qualified candidates to fill the chaplain position, was the true reason for the
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agency’s denial of his request for a waiver of the mandatory law enforcement
officer retirement age.

                 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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
                                                                           6

Merit Systems Protection Board appellants before the court. 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.
