                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CALVIN J. MOSLEY,                               DOCKET NUMBER
                   Appellant,                        CH-0752-10-0469-C-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 28, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Calvin J. Mosley, Gary, Indiana, pro se.

           Janet M. Kyte, Esquire, Hines, Illinois, 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 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 interpretation of statute or regulation


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the administrative
     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         The appellant appealed his removal from a position as a Social Worker,
     GS 0185-09, with the agency’s Gary Area Vet Center in Gary, Indiana. Mosley v.
     Department of Veterans Affairs, MSPB Docket No. CH-0752-10-0469-I-1, Initial
     Appeal File (IAF), Tab 1, Tab 9, Subtabs 4a-4b. He was removed for failure to
     obtain licensure as a social worker, which was required for his position. IAF,
     Tab 9, Subtab 4e. After the parties executed a settlement agreement, which was
     entered into the record, the Board dismissed the appeal as settled.       See IAF,
     Tabs 13-14. In the settlement agreement, the appellant agreed to withdraw his
     Board appeal. IAF, Tab 13 at 2. In return, the agency agreed to remove the
     Standard Form 50 (SF-50) reflecting the appellant’s removal from his Official
     Personnel Folder and replace it with an SF-50 reflecting that he voluntarily
     resigned from the agency for personal reasons. Id. at 2. The agency also agreed
     not to object to his application for Illinois unemployment insurance benefits. Id.
¶3         The appellant sought review of the initial decision dismissing the appeal as
     settled.   Petition for Review (PFR) File, Tab 1.      The Board considered the
     appellant’s petition for review and found that he failed to meet his burden of
     showing that the settlement agreement should be invalidated.             Mosley v.
                                                                                      3

     Department of Veterans Affairs, MSPB Docket No. CH-0752-10-0469-I-1, Final
     Order at 2-3 (Jan. 21, 2011) (located at PFR File, Tab 4). The appellant filed this
     petition for enforcement, claiming that the agency breached the settlement
     agreement when it failed to pay him 1 year’s salary in the amount of $57,193.00
     or make any other monetary settlement. See Compliance File (CF), Tab 1. He
     admitted, however, that the agency had met the other terms of the settlement
     agreement. Id. He also asked the Board to invalidate the settlement agreement
     and reopen his appeal. Id.; CF, Tab 8 at 3.
¶4        The administrative judge properly denied the petition for enforcement. See
     CF, Tab 9, Compliance Initial Decision. To the extent that the appellant is still
     seeking to invalidate the settlement agreement, see Compliance Petition for
     Review File (CPFR), Tab 1 at 1, 3, the issue was litigated when the Board
     reviewed the administrative judge’s dismissal of the appeal as settled.        The
     doctrine of res judicata precludes parties from relitigating issues that were, or
     could have been, raised in the prior action, and is applicable if: (1) the prior
     judgment was rendered by a forum with competent jurisdiction; (2) the prior
     judgment was a final judgment on the merits; and (3) the same cause of action
     and the same parties or their privies were involved in both cases. Peartree v. U.S.
     Postal Service, 66 M.S.P.R. 332, 337 (1995). Here, all prongs of the test have
     been met.
¶5        As for the appellant’s petition for enforcement, a settlement agreement is a
     contract, and as such, the Board will enforce it according to 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 that has been entered into the record in the same manner as a final
     Board decision or order. Id. The agreement here has been entered into the record
     for enforcement purposes, as the parties intended. IAF, Tab 14 at 1-2; see IAF,
     Tab 13 at 2. Where the appellant alleges noncompliance with the agreement, the
     agency must produce relevant material evidence of its compliance or show that
                                                                                     4

     there was good cause for noncompliance. Allen, 112 M.S.P.R. 659, ¶ 7. The
     ultimate burden, however, remains with the appellant to prove breach by a
     preponderance of the evidence. Id.
¶6        In construing a settlement agreement, the Board looks first to the terms of
     the agreement itself to determine the intent of the parties at the time they
     contracted.   Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.
     1988).   The Board will consider extrinsic evidence of intent (evidence from
     outside of the four corners of the agreement) only if the terms of the agreement
     are ambiguous. Id.; see, e.g., Mital v. Department of Agriculture, 116 M.S.P.R.
     589, ¶¶ 6-9 (2011).
¶7        The settlement agreement required the agency to undertake only the two
     actions that the appellant acknowledged have been performed: revising his SF-50
     to indicate he resigned for personal reasons and refraining from contesting his
     application for unemployment benefits. See IAF, Tab 13 at 2. The settlement
     agreement does not state that the agency agreed to pay the appellant a monetary
     settlement. Id. at 2-4. Indeed, in paragraph 2, the appellant specifically waived
     “any and all rights to seek any personnel records adjustment or any other
     remedies for any matters arising out of or related to his employment with the
     Agency.” Id. at 2 (emphasis added). In paragraph 10, he acknowledged that the
     agreement constituted “the entire understanding between the parties, and there are
     no other terms or commitments, verbal or written.”        Id. at 3.    Finally, in
     paragraph 9, the appellant acknowledged he entered into the agreement
     “knowingly and voluntarily.” Id.
¶8        After the record closed on review, the appellant submitted two motions for
     leave to submit additional pleadings.      In the first motion, he requests an
     opportunity to submit “additional evidence and an additional witness to establish
     that due process was obstructed in the initial ruling.” The motion simply restates
     the arguments he made in his petition for review. CPFR File, Tab 1 at 1, 3,
     Tab 8. As we have explained, he has already litigated the matter of whether the
                                                                                        5

     settlement agreement should be invalidated and the appeal reopened.           In the
     second, he asks for an opportunity to restructure his petition for review so that the
     Board might better understand his arguments.       CPFR File, Tab 10.      Again, it
     appears that he is requesting one more opportunity to present arguments that have
     been addressed above. We deny both motions.
¶9         Because the agreement set forth the agency’s obligations clearly and
     without ambiguity, the Board will not look beyond the four corners of the
     agreement.    Mital, 116 M.S.P.R. 589, ¶ 6.        The appellant’s arguments are
     unavailing and we thus deny the petition for review and affirm the initial
     decision. 2

                     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


     2
       The petition for review includes several attached documents pertaining to the
     appellant’s underlying removal appeal. The oldest of these documents is dated
     February 4, 2010. The documents do not meet the Board’s definition of new and
     material evidence, or otherwise justify the granting of this petition for review. See
     5 C.F.R. § 1201.115(d) (“Situations in which the Board may grant a petition or cross
     petition for review include . . . a showing that [n]ew and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not available
     when the record closed.”).
                                                                                     6

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 an appeal to the
United States 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
