                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT M. SALEM,                                DOCKET NUMBER
                   Appellant,                        SF-0752-15-0081-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: November 25, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Robert M. Salem, Janesville, California, pro se.

           Kevin D. Cox, Herlong , California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his removal appeal as settled.      For the reasons set forth below, the
     appellant’s petition for review is DISMISSED as untimely filed without good
     cause shown for the delay. 5 C.F.R. § 1201.114(e), (g).



     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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         Effective October 9, 2014, the agency removed the appellant from his
     position as a GS-9 Production Controller for excessive absence without leave
     (AWOL) and failure to follow established leave procedures. Initial Appeal File
     (IAF), Tab 5 at 9-11. The appellant timely appealed the removal to the Board,
     and the parties subsequently reached an agreement to settle the appeal.         IAF,
     Tabs 1, 13. In the settlement agreement, the appellant agreed to the dismissal
     with prejudice of his Board appeal, and the agency agreed, among other things, to
     remove the Standard Form 50 showing his removal from his record and to replace
     it with one showing that he resigned due to disability retirement.      IAF, Tab 13
     at 1-2. The administrative judge found that the settlement agreement appeared
     lawful on its face, the parties had indicated that they understood the terms of the
     agreement, and the agreement was reached freely. IAF, Tab 14, Initial Decision
     (ID) at 1. Accordingly, in a March 5, 2015 initial decision, the administrative
     judge entered the settlement agreement into the record for purposes of
     enforcement by the Board and dismissed the appeal as settled. ID at 1-2. The
     administrative judge notified the appellant that the initial decision would become
     final on April 9, 2015, unless a petition for review was filed by that date. ID at 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶3         On August 27, 2015, the appellant wrote to the administrative judge stating
     that he had not understood the effect the settlement agreement would have on his
     disability retirement benefits and asking the administrative judge to correct the
     injustice.   Petition for Review (PFR) File, Tab 1 at 1-2.      The regional office
     forwarded the appellant’s letter to the Office of the Clerk of the Board, which
     docketed it as a petition for review of the initial decision dismissing the appeal as
     settled. PFR File, Tab 2 at 2. The Clerk of the Board notified the appellant that
     his petition for review was untimely filed and explained that he must file a
     motion asking the Board to accept the petition for review as timely and/or to
                                                                                           3

     waive the time limit for good cause. Id. at 1-2. The appellant responded, asking
     the Board to excuse his late filing because he did not discover that there had been
     no “meeting of the minds” as to the effect of the settlement agreement on his
     disability retirement benefits until he received correspondence from the agency
     on August 6, 2015. 2     PFR File, Tab 3 at 4-6.        He further stated that, upon
     receiving the agency’s correspondence, he realized for the first time that the
     settlement agreement was invalid and sent a letter to the administrative judge
     within 21 days. Id. at 5-6. The agency responded in opposition to the appellant’s
     petition for review. PFR File, Tab 4.
¶4         A petition for review must be filed within 35 days after the issuance of the
     initial decision or, if the petitioner shows that the initial decision was received
     more than 5 days after the date of issuance, within 30 days after the date the
     petitioner received the initial decision.     5 C.F.R. § 1201.114(e).       The initial
     decision was issued on March 5, 2015, and sent to the appellant, who is a
     registered e-filer, the same day. ID at 1; IAF, Tab 15. The appellant has not
     alleged that he received the initial decision more than 5 days after issuance, PFR
     File, Tab 3, and so he had until April 9, 2015, to file a petition for review,
     5 C.F.R. § 1201.114(e); ID at 3.       The appellant’s letter to the administrative
     judge, which we construe as the petition for review, was not mailed until
     August 28, 2015. PFR File, Tab 1 at 9. Thus, the appellant’s petition for review
     was untimely filed by approximately 4.5 months.

     2
        Specifically, the appellant asserted that, when he entered into the settlement
     agreement, he believed that the agency would remove the absences designated as
     AWOL from his record as part of the settlement agreement. PFR File, Tab 3 at 3, 5.
     However, in June 2015, he discovered that the agency had not done so and that, as a
     result, his disability retirement benefits began on October 8, 2014, instead of May 28,
     2013, when he had stopped going to work due to his health problems, and he had not
     received service credit for the 1.5-year period he was in AWOL status. Id. at 3-5, 9.
     The appellant wrote to the agency suggesting that there had been a “mutual mistake”
     regarding the effect of the settlement agreement on his retirement benefits. Id. at 4-5,
     19-20. On August 6, 2015, the agency responded, rejecting his suggestion that there
     had been a mutual mistake. Id. at 4-5, 21.
                                                                                        4

¶5         The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the filing delay.         5 C.F.R. § 1201.114(g).
     Discovery of new evidence may establish good cause for the untimely filing of a
     petition for review if the appellant shows that the newly discovered evidence was
     not readily available before the record closed below and that it is of sufficient
     weight to warrant an outcome different from that of the initial decision. Owen v.
     U.S. Postal Service, 87 M.S.P.R. 449, ¶ 6 (2000). Where, as here, an appeal has
     been dismissed as settled, newly discovered evidence would constitute good cause
     for untimely filing a petition for review if the newly discovered evidence
     establishes that the settlement agreement was invalid. Id. Nevertheless, newly
     discovered evidence may be the basis of a waiver of the time limit only when the
     appellant shows that his failure to discover such evidence was not through lack of
     diligence. Id. In the instant case, however, we need not determine whether the
     appellant’s evidence meets the Board’s criteria for “new” evidence because, as
     discussed below, we find that the appellant has failed to show that the evidence is
     material to the validity of the settlement agreement, i.e., that it has enough weight
     to warrant a finding of invalidity. Id.
¶6         A party seeking to set aside a settlement agreement bears the heavy burden
     of showing that it is tainted with invalidity by fraud or mutual mistake. Id., ¶ 7.
     Here, the appellant asks the Board to excuse his untimely filing because he did
     not have sufficient information to know that the settlement agreement was invalid
     until he received the agency’s correspondence on August 6, 2015.          PFR File,
     Tab 3 at 4-5.     Specifically, he contends that the agency’s correspondence
     informed him, for the first time, that “[he] did not have the same understanding of
     the agreement or the consequences of those terms as [the agency]” and that “[he]
     really didn’t understand it when [he] signed it.” Id. at 5. However, it is well
     settled that a unilateral mistake is not a basis for finding a settlement agreement
     invalid. Pawlowski v. Department of Veterans Affairs, 96 M.S.P.R. 353, ¶ 15
     (2004).   The appellant has not alleged that the newly discovered evidence
                                                                                      5

     establishes that the settlement agreement is tainted with invalidity by fraud or
     mutual mistake. PFR File, Tabs 1, 3; see Owen, 87 M.S.P.R. 449, ¶ 7. Thus, he
     has not shown good cause for his untimely filed petition for review on the basis
     of newly discovered evidence establishing that the settlement agreement was
     invalid. See Owen, 87 M.S.P.R. 449, ¶ 6.
¶7        The appellant has not alleged, and we do not discern, any alternate basis for
     finding good cause for his untimely filed petition for review. PFR File, Tabs 1, 3.
     Accordingly, we dismiss the petition for review as untimely filed without good
     cause shown for the delay.      This is the final decision of the Merit Systems
     Protection Board regarding the timeliness of the petition for review. The initial
     decision remains the final decision of the Board regarding the removal appeal.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
     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
                                                                                    6

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.

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.




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