                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     VALDO K. VAHER,                                 DOCKET NUMBERS
                  Appellant,                         NY-0752-12-0174-C-1
                                                     NY-1221-12-0191-C-1
                  v.

     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.                             DATE: February 25, 2015



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

           Jack P. DiTeodoro, Esquire, Brooklyn, New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed petitions for review of the compliance initial
     decisions in MSPB Docket No. NY-1221-12-0191-C-1 and MSPB Docket No.
     NY-0752-12-0174-C-1, which denied his petitions for enforcement of the
     settlement agreement resolving both appeals.          We JOIN these appeals for

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     adjudication pursuant to 5 C.F.R. § 1201.36. 2 For the reasons that follow, we
     GRANT the petitions for review, REVERSE the compliance initial decisions as to
     the restoration of the appellant’s annual leave, AFFIRM the compliance initial
     decisions AS MODIFIED as to the replacement of the appellant’s badge,
     credentials, and cap device, and REFER the matter to the Office of General
     Counsel to obtain agency compliance.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        To resolve the appellant’s prior individual right of action and removal
     appeals, the parties entered into a settlement agreement, wherein, among other
     things, the agency agreed to restore the appellant to status quo ante and to provide
     the appellant his “previous shield and credentials to the extent that they can be
     located.” MSPB Docket No. NY-1221-12-0191-C-1 (0191-C-1), Compliance File
     (CF), Tab 1 at 5-8; MSPB Docket No. NY-0752-12-0174-C-1 (0174-C-1), CF,
     Tab 1 at 6-9. The administrative judge entered the agreement into the record for
     enforcement purposes and dismissed the appeals as settled. MSPB Docket No.
     NY-1221-12-0191-W-1 (0191-W-1), IAF, Tab 37, Initial Decision; MSPB Docket
     No. NY-0752-12-0174-I-1 (0174-I-1), IAF, Tab 47, Initial Decision.
¶3        The appellant subsequently filed petitions for enforcement in both appeals,
     alleging that the agency was in noncompliance with paragraph 2(b) of the
     settlement agreement, which required the agency to “restore the appellant to
     status quo ante with no break in service.” 0191-C-1, CF, Tab 1; 0174-C-1, CF,
     Tab 1.     Specifically, the appellant argued that the agency had failed to:
     (1) restore 139.25 hours of annual leave that he had accrued in excess of 240
     hours at the end of fiscal year 2012; and (2) return or provide replacements of his



     2
       The joinder of two or more appeals filed by the same appellant is appropriate where
     doing so would expedite processing of the cases and will not adversely affect the
     interests of the parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9
     (2010); 5 C.F.R. § 1201.36(a)(2), (b).
                                                                                           3

     badge, credentials, and cap device. 3 0191-C-1, CF, Tab 1 at 2-3; 0174-C-1, CF,
     Tab 1 at 3-4.    The agency responded that it had complied with the terms and
     intent of the settlement agreement. 0191-C-1, CF, Tab 3 at 3; 0174-C-1, CF, Tab
     3 at 3. The administrative judge denied the petitions for enforcement, finding
     that the agency was in compliance with the settlement agreement because there
     was nothing in the record to suggest either that the agency agreed to reimburse
     the appellant in excess of the allowable 240 hours of annual leave or to reproduce
     his badge or credentials if the originals could not be found. 0191-C-1, CF, Tab 5,
     Compliance Initial Decision (CID) at 6; 0174-C-1, CF, Tab 5, CID at 6. The
     appellant has filed petitions for review of the compliance initial decisions,
     reasserting the arguments raised below.       0191-C-1, Petition for Review (PFR)
     File, Tab 1 at 4-5; 0174-C-1, PFR File, Tab 1 at 4-5.            The agency has not
     responded.
¶4         A settlement agreement is a contract, and the Board will adjudicate an
     enforcement proceeding relevant to a settlement agreement in accordance with
     contract law.    Rivera v. U.S. Postal Service, 107 M.S.P.R. 542, ¶ 4 (2007).
     Where a term of art is used in a settlement agreement, the Board will apply the
     ordinary meaning of that term found in case law, statute, or regulation, unless it is
     shown    that   the   parties   intended    otherwise.      Sweet    v.   U.S.   Postal
     Service, 89 M.S.P.R. 28, ¶ 11 (2001); see Bergquist v. Department of the
     Interior, 99 M.S.P.R. 516, ¶ 9 (2005). In the instant case, the parties agreed to
     restore the appellant to status quo ante without defining the term. 0191-C-1, CF,
     Tab 1 at 6; 0174-C-1, CF, Tab 1 at 7. We find that status quo ante is a term of
     art, and, accordingly, we will apply its ordinary meaning unless there is some
     indication that the parties intended otherwise. See Bergquist, 99 M.S.P.R. 516, ¶
     8 (“back pay” is a term of art).

     3
        We note that the parties appear to use the words “badge” and “shield”
     interchangeably. We further note that it is unclear, and the parties have not explained,
     what the term “cap device” entails.
                                                                                           4

¶5         The Board typically construes “status quo ante” in accordance with the
     Back Pay Act, 5 U.S.C. § 5596.         See id.; see also Forrest v. Department of
     Agriculture, 74 M.S.P.R. 213, 219-21 (1997). In the instant case, we discern no
     indication that the parties intended to accord this term any other meaning. 4 We
     further find that the Back Pay Act applies to the appellant, as he was an employee
     of the agency.    See 5 C.F.R. § 550.803; see also 0174-I-1, IAF, Tab 32 at 14
     (Standard Form 50). Thus, because the appellant is an employee to whom the
     Back Pay Act applies and the agreement reveals no contrary intent, we find that
     the Back Pay Act governs the appellant’s entitlement to be returned to status quo
     ante. 5 See Bergquist, 99 M.S.P.R. 516, ¶ 8; see also Kellihan v. Department of
     the Navy, 72 M.S.P.R. 47, 50 (1996).
¶6         As discussed above, the appellant alleges that the agency is in
     noncompliance with paragraph 2(b) of the settlement agreement because it has not
     restored 139.25 hours of his accrued annual leave. 0191-C-1, PFR File, Tab 1 at
     4-5; 0174-C-1, PFR File, Tab 1 at 4-5. The agency does not dispute that the


     4
       Our finding that the agreement does not indicate any contrary intent is further
     supported by the language of the settlement agreement, which closely parallels the
     applicab le provisions of the Back Pay Act. Specifically, both the settlement agreement
     and the Back Pay Act articulate intent to return the reinstated employee to the position
     he would have been in but for the personnel action at issue. The settlement agreement
     provides that the appellant was “entitled to all benefits and privileges of employment
     that he would have received had he not been removed[.]” See 0191-C-1, CF, Tab 1 at 6;
     0174-C-1, CF, Tab 1 at 7. Likewise, the Back Pay Act provides that, when an adverse
     action is corrected, the employee is entitled the pay, allowances, or differentials he
     “would have earned or received during the period if the personnel action had not
     occurred.” 5 U.S.C. § 5596(b)(1).
     5
       Although the Back Pay Act requ ires a finding that the personnel action was
     unwarranted or unjustified, such a finding is not necessary under the circumstances
     here. See Bergquist, 99 M.S.P.R. 516, ¶ 9. The basis for the appellant’s entitlement to
     back pay is the settlement agreement and not the statute. Id. Where there is no
     indication that the parties intended otherwise, the Board has interpreted provisions for
     back pay in a settlement agreement to mean payment consistent with the Back Pay Act
     without requiring a finding that the personnel action was unwarranted or unjustified.
     See id.; see also Carter v. U.S. Postal Service, 89 M.S.P.R. 45, ¶ 20 (2001).
                                                                                        5

     appellant had 379.25 hours of accrued annual leave at the end of fiscal year 2012,
     but states that he could only carry over a maximum of 240 hours to the next fiscal
     year. 0191-C-1, CF, Tab 3 at 3; 0174-C-1, CF, Tab 3 at 3. Under the Back Pay
     Act, however, status quo ante relief requires restoration of annual leave in excess
     of   the   maximum     leave   accumulation    permitted    by   law.     5   U.S.C.
     § 5596(b)(1)(B)(i); see 5 C.F.R. § 550.805(g); see also Hawkins v. U.S. Postal
     Service, 56 M.S.P.R. 633, 638-39 (1993). Pursuant to the Office of Personnel
     Management’s implementing regulations, the agency must credit any annual leave
     in excess of the maximum leave accumulation authorized by law to a separate
     leave account for use by the appellant within 2 years after the date on which the
     annual leave is credited to the separate account.          5 C.F.R. § 550.805(g)(1).
     Because the agency’s obligation under the settlement agreement to return the
     appellant to status quo ante requires the return of all annual leave in excess of the
     maximum leave accumulation, we find that the agency is not in compliance with
     paragraph 2(b) of the settlement agreement.
¶7         The appellant also alleges that the agency is in noncompliance with
     paragraph 2(b) because it has failed to return or replace his pre-dismissal badge,
     credentials, and cap device. 0191-C-1, PFR File, Tab 1 at 4-5; 0174-C-1, PFR
     File, Tab 1 at 4-5.    Below, the agency responded that it had complied with
     paragraph 2(n) of the settlement agreement by attempting to locate the appellant’s
     badge and credentials because the settlement agreement only required the agency
     to provide his badge and credentials “to the extent that they can be located.”
     0191-C-1, CF, Tab 3 at 3; 0174-C-1, CF, Tab 3 at 3.              We agree with the
     administrative judge that paragraph 2(n) of the settlement agreement does not
     impose an obligation on the agency to provide the appellant with his prior badge
     and credentials if they cannot be located, nor does it impose an obligation on the
     agency to duplicate them. 0191-C-1, CID at 5-6; 0174-C-1, CID at 5-6. We note,
     however, that the administrative judge did not consider the appellant’s argument
     that the agency’s failure to return his badge and credentials violated paragraph
                                                                                        6

     2(b), i.e., constituted a failure to restore him to status quo ante. See id. This was
     error. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589
     (1980) (an initial decision must identify all material issues of fact and law,
     summarize the evidence, resolve issues of credibility, and include the
     administrative judge’s conclusions of law and legal reasoning, as well as the
     authorities on which that reasoning rests). We therefore will consider it now.
¶8        Placing the appellant in status quo ante means restoring him, as nearly as
     possible, to the situation he would have been in had the wrongful personnel action
     not occurred.    Tubesing v. Department of Health & Human Services, 112
     M.S.P.R. 393, ¶ 5 (2009). While the Board does not require perfect consistency
     with all aspects of an appellant’s pre- and post-removal positions, a return to
     status quo ante requires that the agency place the appellant in a position with all
     the essential privileges of his previous position.         Black v. Department of
     Justice, 85 M.S.P.R. 650, ¶ 6 (2000). In Black, the Board held that a criminal
     investigator’s law enforcement badge and credentials must be returned as part of
     the agency’s obligation to return her to status quo ante because they were a
     privilege of the position, even though the agency contended they were not needed
     for her new assignment. Id. In the instant case, however, the appellant does not
     argue that the agency has failed to issue him a badge, credentials, and/or cap
     device carrying the same privileges that he had before the removal; rather, he
     argues that the agency has failed to return or provide replacements of his specific
     badge number, credentials, and cap device. See 0191-C-1, PFR File, Tab 1 at 4-5;
     0174-C-1, PFR File, Tab 1 at 4-5. Absent any allegation that the appellant has
     been deprived of some privilege of his pre-removal position, he has failed to
     show noncompliance insofar as the agency has not returned or made exact copies
     of his pre-dismissal badge, credentials, and cap device.
                                                                                     7

                                           ORDER
¶9        We ORDER the agency to submit to the Clerk of the Board within 20 days
     of the date of this decision satisfactory evidence of compliance with this
     decision.   The agency’s submission must include proof that it credited the
     appellant with all annual leave he would have accrued but for the removal action
     to his annual leave account, or to a separate leave account, if necessary, as
     provided in 5 C.F.R. § 550.805(g). The agency must serve all parties with copies
     of its submission. If the agency has not fully complied, it must show cause why
     sanctions, pursuant to 5 U.S.C. § 1204(a)(2) and (e)(2)(A) and 5 C.F.R.
     § 1201.183, should not be imposed.

                             NOTICE TO THE APPELLANT
           You may respond to the agency’s evidence of compliance within 15 days of
     the date of service of that evidence. If you do not respond, the Board will assume
     you are satisfied and will dismiss the petition for enforcement as moot.

                     NOTICE TO THE APPELLANT REGARDING
                           YOUR RIGHT TO REQUEST
                          ATTORNEY FEES AND COSTS
           You may be entitled to be paid by the agency for your reasonable attorney
     fees and costs. To be paid, you must meet the requirements set out at Title 5 of
     the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
     or 38 U.S.C. § 4324(c)(4).       The regulations may be found at 5 C.F.R.
     §§ 1201.201, 1201.202, and 1201.203.          If you believe you meet these
     requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
     DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
     motion with the Clerk of the Board.
                                                                                   8

                 NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS IN
                  MSPB DOCKET NO. NY-0752-12-0174-C-1
      This is the Board’s final decision as to the appellant’s allegation of agency
noncompliance in failing to fully credit his annual leave. The initial decision, as
supplemented by this Final Order, constitutes the Board’s final decision as to the
appellant’s allegation of agency noncompliance in failing to return or provide
exact replicas of his pre-dismissal badge, credentials, and cap device. 5 C.F.R.
§ 1201.113. You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
                                 Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
                                                                                    9

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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 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.


                NOTICE TO THE APPELLANT REGARDING
                  YOUR FURTHER REVIEW RIGHTS IN
                 MSPB DOCKET NO. NY-1221-12-0191-C-1
      This is the Board’s final decision as to the appellant’s allegation of agency
noncompliance in failing to fully credit his annual leave. The initial decision, as
supplemented by this Final Order, constitutes the Board’s final decision as to the
appellant’s allegation of agency noncompliance in failing to return or provide
exact replicas of his pre-dismissal badge, credentials, and cap device. 5 C.F.R.
§ 1201.113. You have the right to request the United States Court of Appeals for
the Federal Circuit to review this final decision. 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
                                                                                 10

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.




FOR THE BOARD:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
