                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RANDY ZAPATA,                                   DOCKET NUMBER
                 Appellant,                          AT-0353-10-0712-C-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 14, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Randy Zapata, Miami-Gardens, Florida, pro se.

           John C. Oldenburg, Esquire, Memphis, Tennessee, 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 compliance initial
     decision, which dismissed his petition for enforcement as voluntarily withdrawn.
     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 or the erroneous application of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.           We also have considered the
     appellant’s petition as a request to reopen his withdrawn petition for enforcement
     under 5 C.F.R. § 1201.118, and we DENY his request.
¶2         On December 20, 2010, the appellant entered into a settlement agreement
     with the agency to resolve the underlying appeal, in which he alleged that the
     agency failed to restore him to duty in his position as an Automation Clerk at
     Pembroke Pines, Florida.      Zapata v. U.S. Postal Service, MSPB Docket No.
     AT-0353-10-0712-I-1, Initial Appeal File (IAF), Tabs 13, 15. He subsequently
     challenged the validity of that agreement in a petition for review filed on
     August 17, 2011, in which he alleged that the agency fraudulently entered into the
     agreement knowing that it could not abide by its terms. Zapata v. U.S. Postal
     Service, MSPB Docket No. AT-0353-10-0712-I-1, Final Order at 2 (July 10,
     2012).   Namely, after the agreement was executed, the Department of Labor
     (DOL) contacted the appellant, who was receiving Office of Workers’
     Compensation Programs (OWCP) benefits, to discuss transferring him from his
     U.S. Postal Service position to a position outside of the U.S. Postal Service with a
     loss of wage earning capacity supplement. 2 Id. The appellant alleged that DOL

     2
       Prior to settling the appeal, the appellant had contacted the OWCP regarding training
     assistance that would prepare him to be placed in a different job. IAF, Tab 13 at 6. In
     the settlement agreement, the agency promised to contact the OWCP and “attempt
                                                                                          3

     attempted to violate his rights under the settlement agreement and that the agency
     attorney knowingly defrauded him and failed to negotiate in good faith. Id. In
     denying his petition for review, the Board found that the appellant had failed to
     put forth any evidence of fraud, noting that he had been informed that the agency
     could exercise no control over actions taken by other agencies such as DOL. Id.
¶3         Concurrent to filing the petition for review of the underlying appeal, the
     appellant filed the instant petition for enforcement. Compliance File (CF), Tab 1.
     He asserted that the agency “offered and entered an agreement on 12/20/2010 and
     they are now claiming that they can not do anything about what was agreed. This
     constitutes a fraudulent agreement.” Id. at 3. The appellant voluntarily withdrew
     the petition for enforcement on October 17, 2011, CF, Tab 5, and the
     administrative judge dismissed it for lack of jurisdiction, CF, Tab 6, Compliance
     Initial Decision (CID). The finality date was November 21, 2011. CID at 2.
¶4         The appellant filed this petition for review almost 4 years later on
     November 17, 2015, requesting that the Board reinstate his petition for
     enforcement.     Compliance Petition for Review (CPFR) File, Tabs 1, 3.
     Ordinarily, an appellant’s withdrawal of an appeal is an act of finality that
     removes the appeal from the Board’s jurisdiction.            Lincoln v. U.S. Postal
     Service, 113 M.S.P.R. 486, ¶ 7 (2010). In the absence of unusual circumstances
     such as misinformation or new or material evidence or other extraordinary
     circumstances, such as an intervening court or OWCP decision, the Board will not
     reinstate an appeal once it has been withdrawn merely because the appellant
     wishes to proceed before the Board or to cure an untimely petition for review.
     Cason v. Department of the Army, 118 M.S.P.R. 58, ¶ 5 (2012).
¶5         Although his reasons for withdrawing his petition for enforcement are
     unclear, the appellant has not alleged that he did so involuntarily. He has not


     to . . . speed up” that agency’s review of his request. Id. The appellant acknowledged,
     however, that the OWCP was a separate agency and the U.S. Postal Service could not
     guarantee a more expeditious response. Id.
                                                                                       4

     raised on review a genuine issue of fact as to whether he made a clear,
     unequivocal, and decisive act to relinquish his appeal rights.        See, e.g., id.
     (explaining that a relinquishment of one’s right to appeal to the Board must be
     made by clear, unequivocal, and decisive action).      The record shows that the
     appellant orally requested to withdraw his petition, and the administrative judge
     recorded that request 3 and dismissed the appeal. CID at 1. The administrative
     judge did not err in dismissing the appeal as withdrawn, and the appellant has not
     asserted any basis under 5 C.F.R. § 1201.115 for the Board to grant his petition
     for review. We thus deny his petition for review.
¶6        The appellant also has not alleged any unusual circumstances that might
     justify reopening his petition for enforcement. Instead, he alleges that the agency
     has violated the agreement by not placing him in a job pursuant to the provisions
     of his collective bargaining agreement, as he did in the petition for enforcement
     that he withdrew, and he enumerated several actions taken by DOL, which are
     outside the scope of the settlement agreement. CPFR File, Tab 3 at 4-5; CF,
     Tab 1 at 5; IAF, Tab 13 at 6-8. He has added a gloss to his earlier arguments by
     alleging that the agency has violated a clause in the U.S. Constitution prohibiting
     the impairment of contracts. CPFR File, Tab 3 at 4; see U.S. Const. art. I, § 10,
     cl. 1. Nevertheless, he has offered no reason that would support the reopening of
     his petition for enforcement, and we thus deny his request.
¶7        The appellant first filed this petition for review with the regional office.
     CPFR File, Tab 1. In some circumstances, the Board also has treated a request to
     reopen a withdrawn appeal that was filed with the regional office as a new,
     late-filed appeal.   See, e.g., Lincoln, 113 M.S.P.R. 486, ¶¶ 10-13.      Here, the
     regional office transferred the appellant’s filing to the Office of the Clerk of the
     Board, which acknowledged the filing and asked the appellant to clarify whether


     3
       However, the compact disc upon which the administrative judge recorded his
     withdrawal is damaged beyond use. IAF, Tab 5.
                                                                                       5

it was intended as a petition for review.        CPFR File, Tab 2.       The appellant
responded by filing an identical copy of his petition for review with the Clerk, as
well as a letter requesting the reopening of his petition for enforcement. CPFR
File, Tab 3 at 9. The appellant thus asked to proceed with a reopening request,
and in any event, we find no compelling reason to forward this request for
redocketing as a new petition for enforcement to be considered in the first
instance by the administrative judge. 4

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision 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).


4
  Previously, the appellant filed a number of Board appeals challenging the agency’s
actions and those of the OWCP. See Zapata v. U.S. Postal Service, MSPB Docket No.
AT-0752-15-0355-I-1, Initial Decision (Feb. 10, 2016) (dismissing appeal for failure to
prosecute); Zapata v. Department of Labor, MSPB Docket No. AT-0752-15-0259-I-1,
Initial Decision (Feb. 12, 2015) (dismissing appeal of OWCP decision to reduce his
benefits for lack of jurisdiction); Zapata v. U.S. Postal Service, MSPB Docket No.
AT-0353-15-0250-I-1, Initial Decision (Feb. 12, 2015) (dismissing appeal of OWCP
decision to reduce his benefits for lack of jurisdiction); Zapata v. U.S. Postal Service,
MSPB Docket No. AT-0752-14-0360-I-1, Final Decision (Dec. 23, 2014) (affirming
dismissal for lack of jurisdiction an appeal of a reassignment without loss of pay).
                                                                                  6

      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 U.S. 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 U.S. 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 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
