                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL L. HAMLIN,                              DOCKET NUMBER
                  Appellant,                         DC-531D-12-0254-C-1

                  v.

     DEPARTMENT OF EDUCATION,                        DATE: February 4, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Michael L. Hamlin, Springfield, Virginia, pro se.

           Schwanda Rountree, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the compliance initial
     decision, which denied his petition for enforcement. For the reasons discussed
     below, we REMAND the case to the regional office for further adjudication in
     accordance with this order.



     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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        The appellant filed a Board appeal challenging the agency’s decision to
     grant his within-grade increase (WIGI) in July 2011, rather than March 2011.
     Hamlin v. Department of Education, MSPB Docket No. DC-531D-12-0254-I-1,
     Initial Appeal File (IAF), Tab 1.    While the appeal was pending, the parties
     reached a settlement agreement resolving the appeal.         IAF, Tab 20.      The
     agreement provided, among other things, that the agency would grant the 2011
     WIGI retroactive to March 2011. IAF, Tab 21 at 5. The administrative judge
     issued an initial decision in May 2012, finding that: (1) the appeal was within the
     Board’s jurisdiction; (2) the agreement was lawful on its face; and (3) the parties
     understood the agreement’s terms and freely and voluntarily entered into it. IAF,
     Tab 22, Initial Decision (ID) at 1. She therefore accepted the agreement into the
     record for enforcement purposes and dismissed the appeal as settled. ID at 1-2.
¶3        In May 2015, the appellant filed a petition for enforcement in which he
     asserted that the agency violated the terms of the agreement by delaying his
     subsequent WIGIs until June instead of granting them in March.          Hamlin v.
     Department of Education, MSPB Docket No. DC-531D-12-0254-C-1, Compliance
     File (CF), Tab 1. The agency responded in opposition to the appellant’s petition,
     asserting that the appellant failed to file his petition within a reasonable time
     because his last WIGI of record was in June 2013. CF, Tab 3 at 5. The agency
     also asserted that, even if the appellant’s petition was timely filed, it had fully
     complied with the agreement.     Id. at 5-6.   The administrative judge issued a
     compliance initial decision denying the appellant’s petition for enforcement. CF,
     Tab 6, Compliance Initial Decision (CID). Specifically, the administrative judge
     found that the agency was in compliance with the agreement because: (1) the
     appellant did not provide any evidence substantiating his claim that his “correct”
     WIGI eligibility date was March rather than June or July; (2) nothing in the
     agreement addressed the eligibility date for any future WIGI to which he might be
                                                                                         3

     entitled; and (3) the appellant did not dispute that he received the WIGI for which
     he bargained in the May 2012 agreement. CID at 3-4.
¶4        The appellant has filed a timely petition for review of the compliance initial
     decision. Petition for Review (PFR) File, Tab 1. He argues, inter alia, that all
     his WIGIs should be granted in March, which is the anniversary of his Federal
     start date because, otherwise, he would be penalized for the agency’s previous
     improper delay in granting his 2011 WIGI.         Id. at 8-9.   He also argues that,
     contrary to the agency’s assertion, he was never placed on a performance
     improvement plan (PIP). Id. at 8. Finally, the appellant argues that the agency’s
     delay in updating his electronic personnel file delayed notice to him that his
     WIGI had been delayed. Id. at 9. The agency has responded in opposition to the
     appellant’s petition for review. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        The Board has the authority to enforce a settlement agreement that, like the
     agreement in this case, has been entered into the record, in the same manner as
     any final Board decision or order.      Haefele v. Department of the Air Force,
     108 M.S.P.R. 630, ¶ 7 (2008).        As the party asserting noncompliance, the
     appellant bears the burden of proving by preponderant evidence that the agency
     breached the settlement agreement. 2     Id.   However, following the appellant’s
     filing of a petition for enforcement, the agency must produce relevant, material
     evidence of its compliance with the agreement. Id.
¶6        The agreement stated that the agency would grant the appellant a WIGI
     retroactive to March 2011. IAF, Tab 21 at 5. However, the appellant’s Standard
     Form 50 documenting his 2013 WIGI reflects that his last equivalent increase was
     in July 2011. CF, Tab 3 at 11. For the appellant to be eligible for his WIGI in


     2
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        4

     2013, he would have needed to complete 104 weeks of service since the last
     equivalent increase. See 5 U.S.C. § 5335(a). The appellant’s 2013 WIGI from
     step 4 to step 5 thus could have been delayed solely on the basis that the agency’s
     records reflected that his last WIGI was granted in July 2011, rather than
     March 2011.     Therefore, it appears that the agency may have violated the
     agreement by failing to document that it had granted the 2011 WIGI effective in
     March.
¶7        The agency asserts that the appellant’s 2013 WIGI was delayed for
     unsatisfactory performance when he was placed on a PIP, CF, Tab 3 at 5-6, but it
     provides no evidence to support this assertion. 3 On review, the appellant asserts
     that he was never on a PIP. PFR File, Tab 1 at 8. In support of his assertion, he
     attaches a performance appraisal that reflects he received an overall “Results
     Achieved” rating for the appraisal period from October 2012 to September 2013.
     Id. at 11-14. This appraisal alone, however, does not rebut the agency’s assertion
     that the appellant was on a PIP after his 2011 WIGI and prior to receiving his
     WIGI in June 2013. We therefore are unable to determine on the existing record
     whether the agency breached the settlement agreement by granting the appellant’s
     2013 WIGI in June rather than March. Accordingly, we find that the appeal must
     be remanded to the administrative judge.
¶8        Before adjudicating the merits of the petition for enforcement, however, the
     administrative judge should address the timeliness of the petition. A petition for
     enforcement alleging a breach of a settlement agreement must be filed within a
     reasonable amount of time of the date the petitioning party becomes aware of a
     breach of the agreement.        Phillips v. Department of Homeland Security,
     118 M.S.P.R. 515, ¶ 11 (2012). The reasonableness of the time period depends

     3
       Had the agency delayed the appellant’s 2013 WIGI because it determined that his
     work was not at an acceptable level of competence, it would have been required to
     provide him with prompt written notice of that determination. See 5 U.S.C. § 5335(c).
     Providing a copy of such written notice in response to the appellant’s petition for
     enforcement would have clarified the reason for the delay in granting the 2013 WIGI.
                                                                                      5

     on the circumstances of each case.       Id.   Here, the appellant alleged that the
     agency breached the settlement agreement by improperly delaying granting his
     WIGI in 2013 because the WIGI should have been granted in March rather than
     June. CF, Tab 1; see CF, Tab 3 at 11-12. However, he did not file a petition for
     enforcement until May 2015. CF, Tab 1. The question thus arises whether the
     appellant filed his petition for enforcement within a reasonable period of time
     from the date he became aware of the alleged breach of the agreement.          See
     Principe v. U.S. Postal Service, 100 M.S.P.R. 66, ¶ 13 (2005). The timeliness of
     a petition for enforcement may be raised sua sponte by the Board. Id. Because
     the administrative judge did not adjudicate the timeliness issue or afford the
     parties notice and an opportunity to address it, we remand this matter to the
     administrative judge for further adjudication.
¶9         On remand, the administrative judge shall afford the parties an opportunity
     to submit evidence and argument on the issues of breach and the timeliness of the
     petition for enforcement. The administrative judge shall exercise discretion to
     afford them an opportunity for discovery and a hearing, if necessary, before
     issuing a new compliance initial decision. See Principe, 100 M.S.P.R. 66, ¶ 13.
     If the administrative judge finds that the petition for enforcement was timely
     filed, she must then address the merits of the petition.
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                                           ORDER
¶10        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this remand order.




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