                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAN SANDERS,                                    DOCKET NUMBER
                         Appellant,                  SF-531D-12-0684-C-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: September 5, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dan Sanders, Lodi, New Jersey, pro se.

           Kevin D. Mack, Esquire, Sacramento, California, 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 compliance 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation 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. Except as expressly modified by this Final Order,
     we AFFIRM the initial decision.

                                       BACKGROUND
¶2        The appellant filed an appeal with the Board on July 23, 2012, challenging
     his performance appraisal rating and alleging that the agency had improperly
     denied his within-grade increase, effective March 25, 2012.             Sanders v.
     Department of the Interior, MSPB Docket No. SF-531D-12-0684-I-1, Initial
     Appeal File (IAF), Tab 2, Tab 4, Subtabs 4b, 4h. On November 19, 2012, the
     parties entered a written settlement agreement resolving both the appellant’s
     Board appeal and an informal equal employment opportunity (EEO) complaint
     that the appellant had filed with the agency’s EEO office. IAF, Tab 18. The
     settlement agreement provided that the agency would take the following actions
     within 30 days of the execution of the agreement: (1) change the appellant’s
     performance ratings for fiscal years 2010-2011 and 2011-2012 to “fully
     successful”; and (2) change the appellant’s step level from 4 to 5, effective
     July 25, 2012, thus entitling the appellant for back pay for earnings owed back to
     that date.   IAF, Tab 18 at 4.     In addition, the agreement provided that the
     appellant would report to a different supervisor and would attend two sessions on
                                                                                       3

     supervisory training. Id. at 5-6. The agreement also provided that the appellant
     would withdraw his pending Board appeal and his informal EEO complaint. Id.
     at 3.
¶3           The administrative judge issued an initial decision dated November 21,
     2012, dismissing the appeal as settled and entering the agreement into the record
     for enforcement purposes. IAF, Tab 19, Initial Decision (ID). The administrative
     judge found that the settlement agreement was lawful on its face, that the parties
     had freely entered into the agreement and understood its terms, and that the
     agreement met the criteria for inclusion in the Board’s record. ID at 2. The
     initial decision dismissing the appeal as settled became final on December 26,
     2012, when neither party filed a petition for review. ID at 2.
¶4           The appellant filed this petition for enforcement on July 15, 2013, alleging
     that the agency had breached the settlement agreement by failing to change his
     performance rating within 30 days of the execution of the settlement agreement,
     and by harassing him on an ongoing basis. Sanders v. Department of the Interior,
     MSPB Docket No. SF-531D-12-0684-C-1 (C-1), Compliance Appeal File (CAF),
     Tab 1.     In particular, the appellant alleged that the agency harassed him by
     placing him on administrative leave, proposing his removal, and ultimately
     forcing him to transfer to another agency in order to “get out of [his] negative
     work environment.”       CAF, Tab 1 at 1-4, Tab 7 at 1-7.        In support of his
     harassment claim, the appellant further alleged that his new supervisor instructed
     him not to send emails to his former supervisor. CAF, Tab 11 at 2.
¶5           The administrative judge issued a compliance initial decision denying the
     petition for enforcement. CAF, Tab 13, Compliance Initial Decision (CID). She
     found that, although the agency complied with the provision of the agreement
     requiring it to change the appellant’s performance ratings outside the period
     specified in the settlement agreement, the agency had nonetheless ultimately
     complied with that provision of the agreement. CID at 4-5. She also found that
     the appellant had not established a breach of the settlement agreement in
                                                                                    4

     connection with any alleged harassment. CID at 5-8. The appellant has filed a
     petition for review of the compliance initial decision. C-1, Compliance Petition
     for Review (CPFR) File, Tab 1.¶.

                                        ANALYSIS
¶6        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.

     Although the agency materially breached the settlement agreement by failing to
     prepare and process the appellant’s new performance ratings within 30 days of
     the execution of the agreement, the agency is now in compliance and there is no
     further relief available to the appellant.
¶7        In order to establish a breach of a settlement agreement, the petitioning
     party “must show material noncompliance” with a term of the contract.
     Walker-King v. Department of Veteran Affairs, 119 M.S.P.R. 414, ¶ 9 (2013). A
     breach of a settlement agreement is material when it relates to a matter of vital
     importance or goes to the essence of the contract.    Kitt v. Department of the
     Navy, 116 M.S.P.R. 680, ¶ 11 (2011).
¶8        In his Board appeal, the appellant identified his dissatisfaction with his
     performance ratings as one of the bases for his appeal. IAF, Tab 2. Thus, the
     changes to the performance ratings were of vital importance to the contract. See
     Burke v. Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 11 (2014) (finding
     that the removal of a reprimand from the appellant’s Official Personnel File went
     to the essence of the parties’ settlement agreement resolving the appellant’s
                                                                                       5

      individual right of action appeal where the appellant identified the reprimand as
      one of the personnel actions that the agency allegedly took against him in
      retaliation for making protected disclosures). Although the settlement agreement
      specifically required the agency to prepare and process the appellant’s new
      performance ratings within 30 days of the execution of the settlement agreement
      (i.e., by December 19, 2012), the agency did not make those changes until
      January 18, 2013. See CAF, Tab 1 at 57, 59. We find that, because the changes
      to the appellant’s performance ratings went to the essence of the contract, the
      agency’s failure to make those changes within 30 days, as required by the
      contract, was a material breach of the agreement. See Kitt, 116 M.S.P.R. 680,
      ¶¶ 2-3, 9, 11 (finding that the agency materially breached a settlement agreement
      by retaining a record of the appellant’s removal despite a provision in the
      agreement requiring it to change the removal to a 30-day suspension). Because
      the agency breached a material provision of the settlement agreement, the
      appellant is not required to establish that the breach caused him actual harm. See
      Mullins v. Department of the Air Force, 79 M.S.P.R. 206, ¶ 11 (1998) (the breach
      was material not because it resulted in a monetary loss but because the breached
      provision was material to the agreement).
¶9         When one party commits a material breach of a settlement agreement, the
      other party ordinarily is entitled to either enforce the settlement agreement or to
      rescind it and to reinstate the appeal.     Kitt, 116 M.S.P.R. 680, ¶ 12.     If a
      settlement agreement is rescinded, the settlement terms become inoperative, and
      the parties are essentially restored to the status quo ante. Id. An appellant who
      chooses to rescind a settlement agreement risks losing any benefits he received
      under the agreement. Id. If the appellant chooses to rescind the agreement, then
      his Board appeal must be adjudicated on the merits. Id.
¶10        In this case, the appellant has stated that he is seeking compensatory
      damages and reinstatement of his informal EEO complaint. CAF, Tab 1 at 1, 4,
      Tab 11 at 3; CPFR File, Tab 1. The actions the appellant asks the Board to take
                                                                                               6

      are not within its authority. See Smith v. Department of the Army, 72 M.S.P.R.
      676, 679 (1996) (the Board lacks authority to award damages for breach of a
      settlement agreement). Further, although the appellant has repeatedly stated that
      he would like his EEO complaint reinstated, he has never indicated that he would
      like his Board appeal reinstated. Thus, it appears that the appellant does not wish
      to reinstate his Board appeal. Therefore, the Board will not order rescission of
      the settlement agreement and reinstatement of the appellant’s Board appeal. 2 See
      Burke, 121 M.S.P.R. 299, ¶ 13.        Furthermore, because the agency has already
      effected the changes to the appellant’s performance ratings, there is no
      meaningful relief the Board can provide, and the appellant’s petition for
      enforcement regarding the changes in his performance ratings is, therefore, moot.
      See id. (citing Bables v. Department of the Army, 86 M.S.P.R. 171, ¶¶ 19-20
      (2000) (dismissing a petition for enforcement as moot despite the agency’s
      delayed compliance in purging a document from the appellant’s file)).

      The administrative judge otherwise correctly denied the appellant’s petition for
      enforcement.
¶11         In support of his petition for enforcement, the appellant argued that the
      agency discriminated against him and harassed him both before and after the
      settlement agreement in an effort to make him quit his position. CAF, Tab 1 at
      1-3, Tab 7 at 1-7, Tab 11 at 1-3. It is well settled that implicit in any agreement,
      as under other contracts, is a requirement that the parties fulfill their respective
      contractual obligations in good faith.        Kuykendall v. Department of Veterans
      Affairs, 68 M.S.P.R. 314, 323 (1995). A party may breach a settlement agreement
      by acting in bad faith concerning a settlement term, and an appellant may
      establish that an agency breached the settlement agreement by showing that the


      2
       It also would be infeasible to restore the parties to the status quo ante, given some of
      the terms of the agreement (e.g., the change in the appellant’s supervisor, his attendance
      at two sessions on supervisory training) and the fact that the appellant has transferred to
      another agency. See IAF, Tab 18 at 5-6; CAF, Tab 1 at 1, Tab 7 at 3.
                                                                                        7

      agency’s post-settlement harassment and retaliation against him constituted
      bad-faith noncompliance with a term of the agreement.         Id. at 323-24.   “Bad
      faith” is not simply bad judgment or negligence but instead implies conscious
      wrongdoing because of dishonest purpose or moral obliquity. See Silva v. U.S.
      Postal Service, 59 M.S.P.R. 268, 272 (1993) (quoting Black’s Law Dictionary
      (6th Ed.), aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). A mere showing of some
      frictions, misunderstandings, or unpleasantness between the appellant and other
      employees or management is insufficient to establish bad-faith noncompliance
      with a term of the agreement. Stasiuk v. Department of the Army, 118 M.S.P.R.
      1, ¶ 7 (2012).     The Board may only consider the appellant’s allegations that the
      agency’s post-settlement actions constituted retaliation for filing and settling his
      Board appeal to the extent that his allegations pertain to the alleged breach of the
      settlement agreement. Burke, 121 M.S.P.R. 299, ¶ 15.
¶12            The administrative judge found that the appellant failed to show that the
      agency engaged in bad faith in implementing a term of the settlement agreement.
      CID at 7. Specifically, the administrative judge found that some of the incidents
      of alleged harassment, such as his placement on administrative leave and his
      proposed removal, are the subject of an EEO complaint the appellant filed in
      2013, and she explained that the Board lacks jurisdiction to decide those claims in
      a petition for enforcement.     CID at 8 (citing Walker-King, 119 M.S.P.R. 414,
      ¶ 15).     The administrative judge further found that the appellant’s remaining
      allegations either did not relate to the agency’s implementation of a term of the
      settlement agreement or are in the nature of a friction or unpleasantness (e.g., his
      claim that his new supervisor directed him not to send emails directly to his
      former supervisor). CID at 8.
¶13            On review, the appellant does not specifically challenge (and we discern no
      reason to disturb) the administrative judge’s explained finding that the appellant
      failed to meet his burden of proving that the agency’s actions constituted
      bad-faith noncompliance with the parties’ settlement agreement.         Rather, the
                                                                                        8

      appellant argues that the motivation for these actions “can only be fully
      comprehended by reinstatement of the [informal] EEO complaint.” CPFR File,
      Tab 1. As previously stated, however, the Board does not have the authority to
      reinstate that complaint.
¶14         Therefore, we dismiss as moot the appellant’s petition for enforcement
      concerning the changes to his performance ratings and AFFIRM the compliance
      initial decision regarding the appellant’s claim of bad-faith noncompliance with
      the settlement agreement.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 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

            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
                                                                                9

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
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.
