                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     VICTOR E. MORETTA,                              DOCKET NUMBERS
                   Appellant,                        DE-0752-14-0334-I-1
                                                     DE-4324-14-0335-I-1
                  v.

     DEPARTMENT OF HEALTH AND
       HUMAN SERVICES,                               DATE: February 2, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Victor E. Moretta, North Fort Myers, Florida, pro se.

           Bennett R. Tuchawena, Aberdeen, South Dakota, for the agency.


                                           BEFORE

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


                                           ORDER

¶1        The appellant has filed what was styled as a petition for review of the initial
     decision that dismissed these appeals pursuant to a settlement agreement. For the
     reasons discussed below, we FORWARD the appellant’s pleadings to the Denver
     Field Office for docketing as a petition for enforcement.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                        BACKGROUND
¶2         As recounted in the initial decision in these joined appeals, the appellant
     asserted that:   (1) his resignation of February 3, 2014, was involuntary and
     therefore tantamount to an appealable removal action; and (2) the agency violated
     the Uniformed Services Employment and Reemployment Rights Act of 1994 by
     improperly denying him approved leave without pay for a service-connected
     injury.   MSPB Docket Nos. DE-0752-14-0334-I-1 & DE-0752-14-0335-I-1,
     Initial Decision (ID) at 1-2.      At the hearing, the parties reached a settlement
     agreement that resolved both appeals, the terms of which are recited in the initial
     decision. Among other things, the appellant agreed to withdraw both of his Board
     appeals and a discrimination claim pending at the Equal Employment Opportunity
     Commission; the agency agreed to cancel the appellant’s resignation and to purge
     all documents related to it from his Official Personnel File (OPF), and to
     substitute in its place approved leave without pay status from February 3, to May
     31, 2014, when it would effect his voluntary resignation. See ID at 2 n.3. 2
¶3         In a pleading filed with the Clerk of the Board 1 day after the deadline
     listed in the initial decision for filing a petition for review, 3 the appellant alleged
     that the agency breached the terms of the settlement agreement by: (1) failing to
     purge his OPF of any reference to his being in an absent without leave status;
     (2) creating a negative performance evaluation; and (3) listing his position as
     “Substance Abuse Therapist” instead of his proper title, “Family Therapist.”
     Petition for Review (PFR) File, Tab 1. He asked the Board to order the agency to
     cure these alleged breaches. Id.




     2
      The parties subsequently reduced the settlement agreement to writing. MSPB Docket
     No. DE-0752-14-0334-I-1, Initial Appeal File (IAF), Tab 18.
     3
       Because of our determination that the appellant’s pleading should be viewed as a
     petition for enforcement rather than as a petition for review, we need not decide
     whether there was good cause for the untimely filing of a petition for review.
                                                                                             3

                                           ANALYSIS
¶4         As recounted above, the appellant’s contentions are that the agency
     breached the settlement agreement that formed the basis for his appeals being
     dismissed, and he seeks enforcement of the terms of the settlement agreement as
     he understands them.      Such contentions and requests constitute a petition for
     enforcement.     See 5 C.F.R. § 1201.182(a).        A petition for enforcement of a
     settlement agreement must be filed in the first instance with the regional or field
     office that issued the initial decision. Id. Accordingly, the appropriate course of
     action is to forward the appellant’s pleadings to the Denver Field Office for
     docketing as a petition for enforcement. 4 See Shipp v. Department of Health &
     Human Services, 107 M.S.P.R. 264, ¶ 8 (2007).




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



     4
       Should the terms of the settlement agreement not be enforceable according to the
     appellant’s interpretation of the agreement, he asks that the Board declare the
     settlement agreement to be null and void and reinstate the underly ing appeals. PFR
     File, Tab 3 at 21. The Board may not reopen and reinstate an adverse action appeal that
     was dismissed pursuant to a settlement agreement unless that settlement agreement has
     been set aside as invalid. See Linares-Rosado v. U.S. Postal Service, 112 M.S.P.R. 599,
     ¶ 10 (2009). An attack on the validity of a settlement agreement cannot be challenged
     in a petition for enforcement; such an attack must be made in the form of a petition for
     review of the initial decision dism issing the case as settled. See Weldon v. Department
     of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013); Lange v. Department of the Interior,
     98 M.S.P.R. 146, ¶ 3 (2005). A party may challenge the validity of a settlement
     agreement if he believes that the agreement is unlawful, involuntary, or the result of
     fraud or mutual mistake. Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580,
     583 (1994). Should the appellant be unsuccessful in his petition for enforcement, he
     may file a petition for review of the in itial decision dismissing the original appeals as
     settled if he believes he has grounds for setting aside the settlement agreement as
     invalid.
