                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH THOMAS SIXEAS,                           DOCKET NUMBERS
                  Appellant,                         DC-4324-15-0385-I-1
                                                     DC-4324-15-0385-C-1
                  v.

     DEPARTMENT OF VETERANS
       AFFAIRS,                                      DATE: September 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joseph Thomas Sixeas, Annandale, Virginia, pro se.

           Richard Johns, Washington, D.C., 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 in Sixeas
     v. Department of Veterans Affairs, MSPB Docket No. DC-4324-15-0385-I-1 (the
     merits appeal), which dismissed as settled his appeal alleging that the agency
     violated his rights under the Uniformed Services Employment and Reemployment


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Rights Act of 1994 (codified at 38 U.S.C. §§ 4301–4333) (USERRA).                     The
     appellant also has filed a petition for review of the compliance initial decision in
     Sixeas v. Department of Veterans Affairs, MSPB Docket No. DC-4324-15-0385-
     C-1 (the compliance appeal), which denied his petition for enforcement of the
     settlement agreement resolving his merits appeal.           We JOIN these appeals for
     adjudication pursuant to 5 C.F.R. § 1201.36(b). 2           For the reasons discussed
     below, we DENY the appellant’s petition for review of the compliance initial
     decision, GRANT his petition for review of the initial decision in the merits
     appeal, and VACATE the initial decision in the merits appeal. We RESCIND the
     settlement agreement and REINSTATE the underlying USERRA appeal.                      We
     FORWARD the case to the regional office for adjudication in accordance with
     this Order.

                                       BACKGROUND
¶2         The appellant, a Congressional Relations Officer with the agency, filed a
     Board appeal alleging that the agency violated his rights under USERRA when,
     among other things, it failed to select him for a promotion, assigned him
     additional duties, and issued him a letter of counseling. Sixeas v. Department of
     Homeland Security, MSPB Docket No. DC-4324-15-0385-I-1, Initial Appeal File
     (IAF), Tab 1 at 1, 6‑7, Tab 6 at 47. While the appeal was pending, the parties
     entered into a settlement agreement resolving the appeal which, in pertinent part,
     required the agency to provide the appellant with a quality step increase (QSI)
     within 60 days of the effective date of the agreement. IAF, Tab 16 at 6. Pursuant
     to the terms of the settlement agreement, the administrative judge entered the
     agreement into the record for enforcement purposes and dismissed the appeal as
     settled. IAF, Tab 17, Initial Decision (ID), Tab 16 at 7.

     2
       The joinder of two or more appeals filed by the same      appellant is appropriate when
     doing so would expedite processing of the cases and         will not adversely affect the
     interests of the parties. Tarr v. Department of Veterans    Affairs, 115 M.S.P.R. 216, ¶ 9
     (2010); 5 C.F.R. § 1201.36(a)(2), (b). We find that these   criteria are satisfied here.
                                                                                     3

¶3         After the initial decision in the merits appeal became final, the appellant
     filed a petition for enforcement of the settlement agreement, in which he asserted
     that the agency failed to provide him with the QSI.        Sixeas v. Department of
     Homeland Security, MSPB Docket No. DC-4324-15-0385-C‑1, Compliance File
     (CF), Tab 1 at 7; see ID at 3; 5 C.F.R. § 1201.113.        In response, the agency
     admitted that it had not provided the QSI, but contended that it was prohibited
     from doing so by regulation. CF, Tab 3 at 6, Tab 7 at 1‑2. Pursuant to 5 C.F.R.
     § 531.504, a QSI “may be granted only to” an employee who receives a
     performance rating of record at the highest summary level used by the agency’s
     appraisal program. The agency asserted that the appellant had not received such a
     rating, and he did not dispute that assertion. IAF, Tab 3 at 6, Tabs 6, 13. The
     agency submitted evidence that, instead of a QSI, it had provided the appellant
     with a step increase through a within‑grade increase (WIGI). IAF, Tab 3 at 6, 8,
     Tab 7 at 1. However, the agency conceded that, unlike the QSI required by the
     settlement agreement, the WIGI that it provided instead would delay the
     appellant’s eligibility for his next WIGI.      IAF, Tab 7 at 1‑2; see 5 U.S.C.
     §§ 5335(a)(1), 5336(b); 5 C.F.R. §§ 531.404(b), 531.405(a)(1)(i), (b)(2).
¶4         The administrative judge issued a compliance initial decision denying the
     appellant’s petition for enforcement. CF, Tab 14, Compliance Initial Decision
     (CID). She found that the Board could not enforce the provision of the settlement
     agreement requiring the agency to          provide the appellant with a QSI
     because 5 C.F.R. § 531.504 precluded the agency from doing so. CID at 3. She
     found that the QSI provision of the settlement was material and that there was a
     mutual mistake by the parties when they entered into the agreement regarding
     whether the agency could provide the appellant with a QSI.            CID at 3‑4.
     However, she found that, if the appellant wanted to rescind the settlement
     agreement and reinstate the merits appeal, he needed to file a petition for review
     of the initial decision dismissing the appeal as settled. CID at 4.
                                                                                        4

¶5         The appellant has filed a petition for review of the initial decision in the
     merits appeal, in which he requests that the settlement agreement be rescinded
     and his appeal be reinstated. Sixeas v. Department of Homeland Security, MSPB
     Docket No. DC-4324-15-0385-I-1, Petition for Review (PFR) File, Tab 1 at 4.
     He also has filed a petition for review of the compliance initial decision, in which
     he argues that the administrative judge should have invalidated the settlement
     agreement and reinstated his appeal during compliance proceedings, rather than
     requiring him to file a petition for review of the initial decision in the merits
     appeal.   Sixeas v. Department of Homeland Security, MSPB Docket No.
     DC-4324-15-0385-C-1, Compliance Petition for Review (CPFR) File, Tab 1 at 3.
     The agency has not responded to the appellant’s petitions for review.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant established good cause for the untimely filing of his petition for
     review in the merits appeal.
¶6         The Board’s regulations provide that a petition for review must be filed
     within 35 days after the date of issuance of an initial decision or, if the appellant
     shows that he received the initial decision more than 5 days after it was issued,
     within 30 days after the date that he received the initial decision. 5 C.F.R.
     § 1201.114(e).   Here, the initial decision in the merits appeal was issued on
     October 23, 2015, and the appellant does not allege that he received the initial
     decision more than 5 days after its issuance date. ID at 1; PFR File, Tabs 1, 4.
     Accordingly, the appellant’s June 8, 2016 petition for review, which was due no
     later than November 27, 2015, was untimely by more than 6 months. ID at 3.
¶7         The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
     establish good cause for the untimely filing of an appeal, a party must show that
     he   exercised   due   diligence   or   ordinary prudence    under   the   particular
     circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
     180, 184 (1980). To determine if an appellant has shown good cause, the Board
                                                                                        5

     will consider the length of the delay, the reasonableness of his excuse and his
     showing of due diligence, whether he is proceeding pro se, and whether he has
     presented evidence of the existence of circumstances beyond his control that
     affected his ability to comply with the time limits or of unavoidable casualty or
     misfortune that similarly shows a causal relationship to his inability to timely file
     his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62–63 (1995),
     aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8         In his motion to waive the time limit for filing his petition for review in the
     merits appeal, the appellant contends that he was unaware that the settlement
     agreement was invalid based on mutual mistake until he received the compliance
     initial decision. PFR File, Tab 4 at 4. We discern no reason that the appellant
     should have recognized that the settlement was invalid prior to that juncture,
     when he was proceeding pro se and the agency’s arguments during compliance
     proceedings focused on whether it had substantially complied with the agreement,
     rather than whether the agreement was valid. See CF, Tab 3 at 6.
¶9         We further find that the appellant acted with due diligence once he became
     aware that there was potentially a basis for setting aside the settlement agreement.
     Five days after the administrative judge issued the compliance initial decision,
     the appellant filed his petition for review seeking to set aside the initial decision
     in the merits appeal. CID at 1; PFR File, Tab 1 at 4. Thus, the appellant has
     established good cause for waiving the time limit for filing his petition for
     review. See Armstrong v. Department of the Treasury, 115 M.S.P.R. 1, ¶¶ 4‑5
     (2010) (finding that an appellant established good cause for waiving the time
     limit for filing a petition for review challenging the validity of a settlement
     agreement when he filed the petition for review within 3 weeks of obtaining
     evidence that the agreement was allegedly invalid), aff’d, 438 F. App’x 903 (Fed.
     Cir. 2011).
                                                                                        6

      We grant the appellant’s petition for review of the initial decision in the merits
      appeal.
¶10        A settlement agreement must be set aside if it is tainted with invalidity by a
      mutual mistake under which both parties acted. Potter v. Department of Veterans
      Affairs, 111 M.S.P.R. 374, ¶ 9 (2009); Farrell v. Department of the
      Interior, 86 M.S.P.R. 384, ¶ 8 (2000). Here, the administrative judge found, and
      we agree, that the parties settled the merits appeal under the erroneous impression
      that the agency could provide the appellant with a QSI. CID at 3‑4; see IAF, Tab
      16 at 6. However, the agency could not provide the appellant with a QSI without
      violating 5 C.F.R. § 531.504 because the appellant did not receive a performance
      rating of record at the highest summary level used by the agency’s appraisal
      program, and the settlement did not provide for any change to the appellant’s
      performance rating. CID at 3; IAF, Tab 3 at 6, Tab 16 at 6‑9. Therefore, we
      agree with the administrative judge that both parties acted under a mutual mistake
      regarding the lawfulness of the agency’s agreement to provide the appellant with
      a QSI. CID at 3‑4; see Farrell, 86 M.S.P.R. 384, ¶ 8 (finding that an agency may
      not lawfully undertake in a settlement agreement to provide an appellant with
      benefits that the agency lacks authority to provide); Stipp v. Department of the
      Army, 61 M.S.P.R. 415, 419 (1994) (same).
¶11        We further agree with the administrative judge that the provision of the
      settlement agreement requiring the agency to provide the appellant with the QSI
      was material. CID at 3. The settlement expressly required the agency to provide
      the appellant with a QSI, and it was a significant benefit that the appellant
      expected to receive in exchange for withdrawing the merits appeal. IAF, Tab 16
      at 6; see Garcia v. Department of the Air Force, 83 M.S.P.R. 277, ¶ 10 (1999)
      (finding that a settlement term is material where it is central to the agreement and
      numerous other provisions of the agreement are dependent upon it); As’Salaam v.
      U.S. Postal Service, 65 M.S.P.R. 417, 421 (1994) (finding that a mistake of fact is
      “material” when it involves a “basic assumption” underlying an agreement).
                                                                                                   7

¶12           For these reasons, we find that the parties’ settlement agreement must be set
      aside. See Potter, 111 M.S.P.R. 374, ¶ 9 (setting aside a settlement agreement
      due to mutual mistake regarding the lawfulness of a material provision); Stipp,
      61 M.S.P.R. at 419–20 (same). Accordingly, we grant the appellant’s petition for
      review of the initial decision in the merits appeal, vacate the initial decision
      dismissing this appeal as settled, and forward the case to the regional office for
      reinstatement of the merits appeal. 3

      We deny the appellant’s petition for review of the compliance initial decision.
¶13           In his petition for review of the compliance initial decision, the appellant
      does not contest the administrative judge’s finding that she lacked authority to
      enforce the settlement agreement because the QSI provision of the agreement was
      not authorized by law, and we discern no basis to disturb that finding.
      CPFR File,       Tab    1;   CID    at   3;   see   Day   v.   Department     of   the   Air
      Force, 78 M.S.P.R. 364, 367 (1998) (determining that the Board could not
      enforce a provision of a settlement agreement requiring an agency to provide an
      appellant with a combination of benefits that was not authorized by law); Stipp,
      61 M.S.P.R. at 420 (finding that the Board lacked authority to enforce a provision
      of a settlement agreement that was not authorized by law).
¶14           Instead, the appellant argues that the administrative judge erred in requiring
      him to file a petition for review of the initial decision in the merits appeal to set
      aside the settlement agreement and reinstate the merits appeal. CPFR File, Tab 1
      at 3. He contends that this process was “roundabout and time‑consuming” and
      that the administrative judge should have invalidated the settlement agreement
      and reinstated his appeal during compliance proceedings. Id. We disagree.
¶15           Generally, an attack on the validity of a settlement agreement must be made
      in the form of a petition for review of the initial decision dismissing the case as
      settled. Weldon v. Department of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013);

      3
          The parties are not precluded from further attempting to settle the reinstated appeal.
                                                                                                8

      Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶ 8 (2009).
      However, when a petition for enforcement “unmistakably” challenges the validity
      of a settlement agreement, the Board will treat it as a petition for review of the
      initial decision dismissing the appeal as settled.         Miller v. Department of the
      Army, 112 M.S.P.R. 689, ¶ 12 (2009).               Here, the appellant’s petition for
      enforcement did not unmistakably challenge the validity of the settlement
      agreement, but instead, requested that the Board enforce the settlement
      agreement.     CF, Tab 1 at 7‑8.         Consequently, we discern no error in the
      administrative judge requiring the appellant to file a petition for review of the
      initial decision in the merits appeal if he wanted to rescind the settlement
      agreement and reinstate his appeal. CID at 4.
¶16         In any event, because we have granted the appellant’s petition for review of
      the initial decision in the merits appeal, vacated the initial decision dismissing the
      appeal as settled, and reinstated the appeal, the appellant has effectively obtained
      the same relief that he seeks in his petition for review of the compliance initial
      decision. 4 See Phillips v. Department of Homeland Security, 118 M.S.P.R. 515,
      ¶¶ 25-26 (2012) (vacating an initial decision dismissing an appeal as settled,
      reinstating the appeal, and forwarding the appeal to the regional office for
      adjudication). Accordingly, we deny the appellant’s petition for review of the
      compliance initial decision.

                                               ORDER
¶17         For the reasons discussed above, we deny the appellant’s petition for review
      of the compliance initial decision, grant his petition for review of the initial


      4
        In his petition for review of the compliance initial decision, the appellant also requests
      that the Board set his USERRA case for a merits hearing. CPFR File, Tab 1 at 3. Prior
      to dismissing the merits appeal as settled, the administrative judge scheduled a hearing
      in that appeal. IAF, Tab 13 at 4. If the administrative judge determines that a hearing
      is still appropriate in the reinstated merits appeal, she shall provide the appellant with a
      hearing.
                                                                                  9

decision in the merits appeal, and vacate the initial decision in the merits appeal.
We rescind the agreement settling the merits appeal and reinstate the merits
appeal. We forward the case to the regional office for adjudication. This is the
final decision of the Merit Systems Protection Board in this compliance
proceeding.   Title 5 of the Code of Federal Regulations, section 1201.183(c)
(5 C.F.R. § 1201.183(c)).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of the final decision denying the
petition for review in your compliance appeal by the U.S. Court of Appeals for
the Federal Circuit. 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 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
                                                                                   10

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
