                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEROY ALFORD,                                   DOCKET NUMBER
                         Appellant,                  DC-0432-13-0390-C-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: February 6, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           John J. Rigby, Esquire, Arlington, Virginia, for the appellant.

           Robert Schapler, Esquire, and William Christopher Horrigan, Esquire,
             Washington, D.C., 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 initial decision, which
     denied his petition for enforcement of a settlement agreement.         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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        On July 16, 2013, the parties entered into a settlement agreement resolving
     the appellant’s removal appeal and other pending disputes. Alford v. Department
     of Defense, MSPB Docket No. DC-0432-13-0390-I-1, Initial Appeal File (IAF),
     Tab 51 at 1, 4. The administrative judge accepted the agreement into the record
     for enforcement purposes and issued an initial decision dismissing the appeal as
     settled. IAF, Tab 53, Initial Decision (ID) at 1-2. The initial decision became the
     final decision of the Board on August 23, 2013, when neither party filed a
     petition for review. ID at 2.
¶3        Pursuant to the terms of the settlement, the agency agreed to pay the
     appellant wages covering nearly the entire 4-year period prior to the effective
     date of the agreement offset by an amount directed by the Office of Personnel
     Management (OPM) for disability retirement payments he had previously
     received, and a lump sum for both compensatory damages and attorney fees. IAF,
     Tab 51 at 2-4.    The appellant subsequently filed a petition for enforcement
     seeking to enforce the terms of the settlement agreement. Alford v. Department
                                                                                         3

     of Defense, MSPB Docket No. DC-0432-13-0390-C-1 (C-1), Compliance Appeal
     File (CAF), Tab 1 at 4. In it, he alleged that the agency had delayed payment of
     $11,372.48 of his “back pay” and he contended that the agency should be required
     to pay interest on this amount. Id. at 4, 7. He further alleged that the agency had
     failed to offset his back pay for disability retirement benefits previously provided
     to him by OPM. Id. at 4.
¶4         After the parties briefed the issues, the administrative judge issued an initial
     decision that denied the appellant’s petition for enforcement.       CAF, Tabs 4-5,
     7-8, Tab 9, Compliance Initial Decision (CID) at 1.        The administrative judge
     determined that the agency had complied with the agreement and that the delay in
     the final back pay payment was reasonable. CID at 5. He also found that, even
     had the appellant demonstrated noncompliance with the settlement, the agency’s
     noncompliance was not material. CID at 5-6. Further, the administrative judge
     found that the settlement agreement did not provide for interest on back pay; and
     therefore, the Board could not grant the relief requested.          CID at 6.     The
     administrative judge further determined that the agency did not breach the
     settlement agreement when it did not offset the back pay to satisfy the appellant’s
     debt to OPM. CID at 10. Finally, the administrative judge determined that, even
     had the agency failed to properly offset the appellant’s back pay, he was not
     entitled to relief because he pursued the petition in bad faith to obtain a benefit to
     which he was not entitled, i.e., a $200,000 payment to satisfy his debts to OPM.
     CID at 10-11.
¶5        The appellant has filed a timely petition for review of the compliance initial
     decision. C-1, Compliance Petition for Review (CPFR) File, Tab 1. The agency
     has responded in opposition to the petition for review, and the appellant has
     replied. CPFR File, Tabs 3-4.
                                                                                            4

     The administrative judge properly found the agency to be in material compliance
     with the agreement because OPM did not provide the offset payment amount
     within the agreement’s time frame for payment of back pay.
¶6         The appellant’s sole contention on review is that the administrative judge
     erred when he found the agency in compliance with the settlement agreement
     even though the agency failed to withhold the amount of disability retirement
     payments from his back wages and forward that amount to OPM. CPFR File,
     Tab 1 at 5. We disagree. 2
¶7         The Board has the authority to enforce a settlement agreement that has been
     entered into the record in the same manner as any final Board decision or order.
     Stasiuk v. Department of the Army, 118 M.S.P.R. 1, ¶ 5 (2012).             A settlement
     agreement is a contract, and the Board will therefore adjudicate a petition to
     enforce a settlement agreement in accordance with contract law. Id. The party
     seeking enforcement of the settlement agreement bears the ultimate burden of
     showing that the other party breached the agreement. Walker-King v. Department
     of Veterans Affairs, 119 M.S.P.R. 414, ¶ 9 (2013). To establish a breach of a
     settlement agreement, the petitioning party must show material noncompliance
     with a term of the contract. Id. A party’s breach of an agreement is material
     when it relates to a matter of vital importance or goes to the essence of the
     contract. Id. The Board is responsible for ensuring that the parties receive that
     for which they bargained. Id., ¶ 10.
¶8         The administrative judge found the agency in compliance with the
     agreement when it provided the full back wages to the appellant because OPM

     2
       In light of our finding that the agency is in compliance with the settlement agreement,
     we need not decide whether to apply the equitable doctrine of “unclean hands” to the
     facts of this case and do not adopt that part of the administrative judge’s initial
     decision.     CID at 10-11; see, e.g., Precision Instrument Manufacturing Co. v.
     Automotive Maintenance Machinery Co., 324 U.S. 806, 814-15 (1945 (defining the
     “unclean hands” doctrine and discussing its application). Neither party challenges on
     review the administrative judge’s findings that the agency did not breach the agreement
     when it delayed payment of $11,372.48, and the settlement agreement did not provide
     for an interest payment on the back pay. CID at 5-6. We see no reason to disturb these
     well-reasoned findings on review.
                                                                                       5

     did not provide the agency with the offset amount. CID at 8-9. The settlement
     agreement provides that, “the Agency will offset the amount [of back wages]
     directed by OPM.” IAF, Tab 51 at 4 (emphasis added). The agency submitted a
     declaration from its deputy chief of employee benefits and services division that
     she and other staff in human resources attempted multiple times to contact OPM
     to obtain the offset information. CAF, Tab 4 at 14. The deputy chief stated that,
     as of the date of her declaration, OPM had not provided a response to the agency
     regarding the amount of the appellant’s offset.      Id.   Although the appellant
     questions the efforts made by the agency to obtain the information, he does not
     dispute that OPM did not provide the offset amount. CAF, Tab 8 at 6-7; see also
     Engel v. U.S. Postal Service, 114 M.S.P.R. 541, ¶ 8 (2010) (unrebutted affidavits
     are sufficient to establish the matters asserted); Schaefer v. U.S. Postal Service,
     42 M.S.P.R. 592, 595 (1989) (affidavits that are not rebutted constitute evidence
     of matters asserted therein, and, if uncontested, such affidavits prove the facts
     they assert). Because the agency was unable to obtain the amount from OPM and
     the settlement agreement required payment to the appellant by 90 days after the
     effective date, the agency complied with the essence of the agreement by
     processing the entire back pay amount to be paid to the appellant. IAF, Tab 51
     at 2; CAF, Tab 4 at 15.        Accordingly, we find that the agency is in
     material compliance.
¶9        The appellant argues on review that he provided an April 5, 2013 letter
     from OPM to multiple individuals at the agency, and that his actions demonstrate
     proof that the agency was aware of the offset amount. CPFR File, Tab 1 at 6-8.
     We disagree. The letter reflects OPM’s calculations of the amount owed by the
     appellant as of the date of the letter, a total of $199,293.70. CAF, Tab 1 at 24-30.
     However, this letter was provided to the appellant over 3 months before the
     parties entered into the settlement agreement on July 16, 2013. IAF, Tab 51 at 1.
     As the administrative judge noted, intervening events or the passage of time may
     have made the information inaccurate. CID at 9 n.4. The appellant has failed to
                                                                                           6

      provide any current information regarding his debt.         Even had the appellant
      provided such information to the agency, the agreement requires OPM to provide
      the offset amount to the agency, not the appellant. IAF, Tab 51 at 4. Therefore,
      we reject the appellant’s argument that the agency was aware of the offset amount
      to withhold and forward to OPM.
¶10        Because the agency was unable to obtain the offset amount from OPM, we
      find the agency in compliance with the terms of the settlement agreement when it
      paid the full back pay amount directly to the appellant. Therefore, we 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:
                                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).



      3
        The appellant requested that the Board invite OPM to intervene in this appeal. CPFR
      File, Tab 1 at 14. The Board’s regulations do not provide for the invitation of
      intervenors, though the Director of OPM may intervene in certain appeals as a matter of
      right. 5 U.S.C. § 7701(d)(1); 5 C.F.R. § 1201.34(a)-(b)(1). We have received no
      request from OPM to intervene. Therefore, we deny the appellant’s request.
                                                                                  7

     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
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.
