                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CHRISTA L. HINES,                               DOCKET NUMBER
                    Appellant,                       CH-1221-13-0543-C-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 3, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Kurt Cummiskey, Esquire, St. Louis, Missouri, for the appellant.

           G.M. Jeff Keys, Esquire, St. Louis, Missouri, 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
     denied her 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 interpretation of statute or regulation


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM
     the initial decision, which is now the Board’s final decision.              5 C.F.R.
     § 1201.113(b).
¶2        Effective November 30, 2012, the appellant was terminated from her
     position as a Physician when a Physician Professional Standards Board, convened
     to conduct a summary review of her employment during her trial period,
     determined that her performance was unsatisfactory. Initial Appeal File (IAF),
     Tab 7 at 11-19. She filed a complaint with the Office of Special Counsel (OSC)
     in which she alleged that she was terminated because she made protected
     whistleblower disclosures. Id., Tab 1 at 16-27. After OSC closed its file on the
     matter, id. at 12, the appellant filed an appeal with the Board. Id. at 1-3. The
     parties availed themselves of the Board’s Mediation Appeals Process during
     which a settlement was reached. Id., Tab 13 at 3. The handwritten agreement,
     signed on August 23, 2013, provided in pertinent part that, in exchange for her
     withdrawing her appeal, the agency would rescind the appellant’s November 30,
     2012 termination and allow her to resign after 1 year of leave without pay and the
     maximum period of leave permitted under the Family and Medical Leave Act,
     i.e., after 15 months, and that she would be carried on leave without pay,
     beginning on December 1, 2012, until her resignation. Id. The parties requested
     that the settlement agreement be entered into the record for enforcement
                                                                                        3

     purposes.   Id. at 1.   The case was returned to the administrative judge who
     notified the parties on February 13, 2014, that, if she did not receive any written
     objections, she intended to dismiss the appeal as settled pursuant to the terms of
     the parties’ handwritten agreement. Id., Tab 14.
¶3        In her February 26, 2014 initial decision, the administrative judge first
     stated that she had received no written objections from either party. Id., Tab 15,
     Initial Decision (ID) at 2. She then found that the agreement was lawful on its
     face and that the parties freely entered into it, understood its terms, and intended
     to have it entered into the record, and that the parties had stipulated to facts that
     would provide the Board with jurisdiction over the whistleblower appeal.
     Accordingly, based on the agreement, the administrative judge dismissed the
     appeal as settled, ID at 1, 3, in an initial decision that became the Board’s final
     decision on April 2, 2014, when neither party filed a petition for review.
¶4        On April 16, 2014, the appellant filed a petition for enforcement in which
     she argued that the agency had breached the agreement by failing to implement its
     terms. Compliance Appeal File (CAF), Tab 1 at 1-3. She stated that she had a
     serious preexisting health condition that was being adversely affected by the
     agency’s failure to act and that she had apprised the agency of the situation. Id.
     at 4-5. She further stated that one of the significant provisions of the agreement
     was that she would be continued on and/or have access to the agency’s health
     insurance benefits for as long as possible and that, because the agency had not
     enacted the terms of the agreement, she was without health insurance. Id. In its
     response, the agency argued that, prior to the time the initial decision was issued,
     it was unclear whether it should proceed with implementation of the agreement,
     but, once the initial decision was issued on February 26, 2014, it took immediate
     steps toward implementation. Id., Tab 8.
¶5        The appellant replied that the agency failed to inform her health insurance
     provider of her “qualifying event” and that she has been notified that her
     eligibility in the Service Benefit Plan has been terminated, as a result of which
                                                                                        4

     she owes considerable money for medications she received during 2013 which she
     is now unable to secure, causing both her and her current employer to suffer
     financial damage. Id., Tab 9.
¶6        In her initial decision, the administrative judge found that the appellant did
     not show material noncompliance by the agency with the terms of the settlement
     agreement.    Id., Tab 13, Compliance Initial Decision (CID) at 2-5.             The
     administrative judge found that the agency produced evidence to show that it had
     complied with the terms of the settlement agreement.        CID at 3-4.     As to the
     matter of the appellant’s health benefits, the administrative judge considered the
     conflicting evidence but found that the agency’s evidence was more credible
     because the appellant did not dispute the authenticity of the documents or claim
     that she did not receive them and that, in any event, the settlement agreement was
     silent as to any responsibilities on the part of the agency to notify the appellant’s
     insurance carrier regarding her health care coverage. CID at 3. Accordingly, the
     administrative judge denied the appellant’s petition for enforcement. 2 CID at 2,
     6.
¶7        The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
¶8        On review, the appellant argues that the agency failed to submit competent
     evidence that it complied with the settlement agreement because it did not
     establish that it transmitted to her insurance carrier the Standard Form (SF)-2801
     showing that her benefits were reinstated and that her evidence that the agency
     did not transmit the form is undisputed. PFR File, Tab 1 at 10-12.
¶9        A settlement agreement is a contract and the interpretation of its terms is a
     question of law. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.


     2
        At the conclusion of the compliance in itial decision, the administrative judge
     erroneously “dismissed” the appellant’s petition for enforcement. See CID at 6. The
     proper disposition was to deny it. See Wofford v. Department of Justice, 115 M.S.P.R.
     367, ¶ 17 (2010).
                                                                                        5

      1988).   Under settled contract law, the party alleging breach of a settlement
      agreement has the burden of proving such breach. See Reniere v. Department of
      Agriculture, 62 M.S.P.R. 648, 651 (1994).      However, the agency has a heavy
      burden of production regarding compliance. Id.
¶10         In response to the appellant’s petition for enforcement, the agency
      submitted the following evidence:       (1) an SF-50 showing the appellant on
      leave-without-pay status effective December 1, 2012, not to exceed February 28,
      2014; (2) SF-50s showing her within-grade increase to step 2, effective December
      16, 2012, and to step 3, effective January 12, 2014; (3) an SF-50 showing her
      resignation, effective February 28, 2014, for personal reasons; and (4) SF-2810s
      showing the reinstatement of her health benefits, effective November 30, 2012,
      and the termination of those benefits, effective March 8, 2014. CAF, Tab 8 at
      9-14. These documents show that the agency met its obligations under the terms
      of the settlement agreement.    As the administrative judge found, the appellant
      does not dispute these documents.      CID at 3.    Rather, she contends that the
      agency breached the agreement by failing to transmit to the carrier the SF-2810
      showing the reinstatement of her health benefits, as evidenced by the carrier’s
      statement that it has not received the appellant’s health benefit enrollment forms.
      She repeats her claim that her receiving health benefits for as long as possible
      was a key component of the agreement and that the agency breached the
      agreement by not showing that it acted promptly in transmitting to her carrier the
      SF-2801 showing the reinstatement of her benefits. PFR File, Tab 1 at 3.
¶11         In construing a contract, one looks first to the terms of the agreement to
      determine the intent of the parties at the time they contracted, as evidenced by the
      contract itself.   Sweet v. U.S. Postal Service, 89 M.S.P.R. 28, ¶ 9 (2001).
      Extrinsic evidence of intent should be considered only if the terms of the
      agreement are ambiguous; a contract is ambiguous when it is susceptible to
      differing, reasonable interpretations. Id.
                                                                                              6

¶12         We find that the settlement agreement in this case is not ambiguous. No
      provision addresses the appellant’s health benefits or imposes upon the agency
      any obligation to communicate with the appellant’s carrier regarding those
      benefits. Cf. Landrith v. Office of Personnel Management, 99 M.S.P.R. 76, 79
      (2005) (an expression of legal rights, such as a statute, court order, or settlement
      agreement is ambiguous if it is susceptible of differing reasonable interpretations;
      however, “silence is not ambiguity”).        Because parol evidence is not used to
      interpret the terms of an unambiguous agreement, Grubb v. Department of the
      Interior, 76 M.S.P.R. 639, 643 (1997), we give no weight to the appellant’s claim
      as to what she bargained for. See Weithoner v. U.S. Postal Service, 103 M.S.P.R.
      45, ¶ 15 (2006), aff’d, 244 F. App’x 332 (Fed. Cir. 2007). The Board has no
      authority to unilaterally modify the terms of the parties’ settlement agreement,
      Galatis v. U.S. Postal Service, 109 M.S.P.R. 651, ¶ 10 (2008), or to read a
      nonexistent term into an agreement that is not unambiguous, Hamilton v.
      Department of Veterans Affairs, 92 M.S.P.R. 467, ¶ 6 (2002).
¶13         In sum, we agree with the administrative judge that the appellant failed to
      establish that the agency breached the agreement with regard to its transmitting
      the SF-2801 to her carrier because the unambiguous terms of the settlement
      agreement imposed no such obligation upon the agency. Therefore, it was proper
      to deny the appellant’s petition for enforcement. 3

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
      3
        The appellant’s alternative claim, raised for the first time on petition for review, PFR
      File, Tab 1 at 9, is that the Board should set aside the agreement for a lack of a meeting
      of the minds. An attack on the validity of a settlement agreement should be raised in a
      petition for review of the initial decision that dismissed the appeal pursuant to the
      settlement. See Gareis v. Department of the Interior, 90 M.S.P.R. 107, ¶ 5 (2001).
                                                                                  7

                          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
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
                                                                           8

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.
