                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALVIN WILSON, JR.,                              DOCKET NUMBER
                   Appellant,                        CH-0432-14-0835-C-2

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: December 20, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Antonio Burnett, Sr., Florissant, Missouri, for the appellant.

           Darlene Benion, Saint 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 compliance initial
     decision, which denied his petition for enforcement of a settlement agreement
     resolving his removal appeal. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.        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, 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. Except as expressly MODIFIED by
     this Final Order to: (1) clarify the basis for finding that the agency did not breach
     the settlement agreement based on its submission of a Disability Retirement
     Application Checklist to the Office of Personnel Management (OPM); (2) address
     the appellant’s argument, raised below, that the agency breached the settlement
     agreement by providing OPM with copies of forms pertaining to his disability
     retirement application, rather than originals; and (3) address the parties’
     responses to the Board’s September 29, 2016 Order to Show Cause, we AFFIRM
     the initial decision.

                                      BACKGROUND
¶2         The appellant filed a Board appeal challenging his removal from his
     position as a Processor with the agency’s Rural Housing Service.           Wilson v.
     Department of Agriculture, MSPB Docket No. CH-0432-14-0835-I-1, Initial
     Appeal File (IAF), Tab 1 at 3, 7-8, 41.       While the appeal was pending, on
     February 25, 2015, the parties entered into a settlement agreement, which
     resolved both the appellant’s Board appeal and two equal employment
     opportunity (EEO) complaints that he filed. IAF, Tab 9 at 3-7. Pursuant to the
     terms of the settlement agreement, in pertinent part, the agency agreed to allow
     the appellant to resign, effective the date that he was removed , and to support his
                                                                                             3

     disability retirement application. Id. at 3. However, the settlement agreement
     specified that the definition of “support” was limited to: (1) certifying to OPM
     on a Standard Form 3112B (SF-3112B) and Standard Form 3112D (SF-3112D)
     that the agency was unable to accommodate the appellant’s disability;
     (2) completing a neutral supervisory statement in conformance with a sample
     attached to the settlement agreement; and (3) providing any other documentation
     requested by OPM.        Id.   The settlement agreement required the agency to
     “provide such support directly to the [appellant]” within 21 working days of the
     effective date of the agreement. Id.
¶3         The administrative judge entered the settlement agreement into the record
     for enforcement purposes and dismissed the appeal as settled.              IAF, Tab 10,
     Initial Decision (ID).    Neither party filed a petition for review of the initial
     decision, which became final on April 24, 2015.                 ID at 2; see 5 C.F.R.
     § 1201.113.
¶4         Approximately 6 months later, on November 10, 2015, the appellant filed a
     petition for enforcement, in which he alleged that the agency breached the
     settlement agreement when it: (1) told an unspecified prospective employer that
     he had been removed; (2) failed to timely provide OPM with a Disability
     Retirement Application Checklist, a form not specifically identified in the
     settlement agreement; (3) provided forms and documents directly to him, rather
     than to OPM; and (4) provided him with copies of documents and forms, rather
     than originals, when originals were allegedly required by OPM . 2              Wilson v.


     2
       Before the initial decision dismissing his appeal as settled became final, the appellant
     also filed a prior petition for enforcement, in which he alleged that agency had failed to
     timely provide him with a $5,000.00 lump sum payment required by the settlement
     agreement. Wilson v. Department of Agriculture, MSPB Docket No. CH-0432-14-0835-
     C-1, Compliance File (C-1 CF), Tab 1 at 3. The administrative judge denied that
     petition for enforcement, and that compliance initial decision became final on June 22,
     2015, when neither party filed a petition for review. Wilson v. Department of
     Agriculture, MSPB Docket No. CH-0432-14-0835-C-1, Compliance Initial Decision
     at 3-4 (May 18, 2015); C-1 CF, Tab 8 at 3-4.
                                                                                         4

     Department     of    Agriculture,   MSPB      Docket     No. CH-0432-14-0835-C-2,
     Compliance File (C-2 CF), Tab 1 at 1, 6, Tab 4 at 1, Tab 11 at 1, Tab 12 at 2,
     Tab 20 at 2.
¶5         In response to the petition for enforcement, the agency denied that it had
     breached the settlement, and provided evidence pertaining to its compliance with
     the agreement.      C-2 CF, Tabs 9, 15, 19.      Among other things, the agency
     submitted evidence that it mailed an SF-3112B and SF-3112D and supporting
     documentation, including the supervisory statement, to the appellant within
     21 working days of the effective date of the settlement agreement, and that on
     October 22, 2015, more than 235 days after the effective date of the settlement
     agreement, it submitted a Disability Retirement Application Checklist to OPM on
     the appellant’s behalf. 3 C-2 CF, Tab 9 at 7, 16-58, Tab 15 at 5, 9.
¶6         Without holding the appellant’s requested hearing, C-2 CF, Tab 1 at 4, the
     administrative judge issued a compliance initial decision finding that the
     appellant did not establish that the agency breached the settlement agreement, C-2
     CF, Tab 21, Compliance Initial Decision (CID).         She found that the appellant
     failed to meet his burden of proving that the agency breached the settlement
     agreement by informing a prospective employer that he had been removed . 4 CID
     at 4-5. Regarding the appellant’s claims pertaining to his disability retirement
     application, the administrative judge found the settlement agreement did not
     require the agency to fill out all forms on the appellant ’s behalf, and that the
     agency had fulfilled its obligations under the settlement agreement when it




     3
       However, the agency represented that, in April 2016, an agency Benefits
     Representative contacted OPM regarding the appellant’s disability retirement
     application and was informed that OPM had not received the Disability Retirement
     Application Checklist. C-2 CF, Tab 15 at 5.
     4
       The appellant does not challenge this finding on review, and we discern no reason to
     disturb it. See Petition for Review File, Tabs 1, 7.
                                                                                           5

     completed the SF-3112B, SF-3112D, and supervisory statement specified in the
     agreement and sent them to the appellant. 5 CID at 3.
¶7         The appellant has filed a petition for review of the compliance initial
     decision, and the agency has responded to the petit ion for review. Petition for
     Review (PFR) File, Tabs 1, 3. The agency failed to respond to the appellant’s
     allegation, either below or on review, that the agency breached the settlement
     agreement by providing copies of documents and forms when OPM allegedly
     required originals. C-2 CF, Tabs 9, 15; PFR File, Tab 3. In addition, the agency
     did not explain why it decided to send the Disability Retirement Application
     Checklist to OPM on the appellant’s behalf on October 22, 2015.              PFR File,
     Tab 3; C-2 CF, Tabs 9, 15. Therefore, on September 29, 2016, the Board issued a
     show cause order directing the agency to submit additional evidence and
     argument regarding these issues.       PFR File, Tab 5.      The Board afforded the
     appellant an opportunity to respond to the agency’s submissions. Id. Both parties
     timely responded to the show cause order. PFR File, Tabs 6-7.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶8         For the first time on review, the agency submits a letter from OPM to the
     agency, dated April 25, 2016, which informed the agency that OPM had approved
     the appellant’s disability retirement application. 6 PFR File, Tab 3 at 15-16. On
     review, the appellant solely challenges the administrative judge’s findings
     regarding the provisions of the settlement agreement pertaining to his disability
     retirement application, and therefore, OPM’s letter raises the issue of whether the
     appellant’s petition for enforcement is now moot. See Mascarenas v. Department


     5
       She further found that the agency provided support above and beyond that required by
     the agreement when it submitted the Disability Retirement Application Checklist to
     OPM on the appellant’s behalf on October 22, 2015. CID at 3.
     6
      The agency fails to explain why it did not provide this evidence below, when the letter
     was stamped as received by the agency more than a month before the compliance initial
     decision was issued. PFR File, Tab 3 at 15-16; CID at 1.
                                                                                             6

     of Defense, 60 M.S.P.R. 320, 323 (1993) (finding that a petition for enforcement
     will be dismissed as moot when the moving party has been afforded all of the
     relief that he could have obtained in a successful compliance proceeding); see
     also Bables v. Department of the Army, 86 M.S.P.R. 171, ¶ 20 (2000) (dismissing
     a petition for enforcement as moot when there was no further remedy that the
     Board could provide for an appellant). However, because the appellant has made
     conflicting representations on review regarding whether he seeks to enforce or
     rescind the settlement agreement based on the agency’s alleged breach, we do not
     dismiss the petition for enforcement as moot, but instead, will consider whether
     the administrative judge correctly found the agency to be in compliance with the
     settlement agreement. 7 PFR File, Tab 1 at 1, Tab 7 at 1; C-2 CF, Tab 4 at 1‑2;
     see Kitt v. Department of the Navy, 116 M.S.P.R. 680, ¶ 12 (2011) (finding that
     when one party commits a material breach of a settlement agreement, the other
     party is entitled to either enforce the settlement agreement or to rescind it and to
     reinstate his appeal).
¶9         A settlement agreement is a contract, and the Board therefore will
     adjudicate a petition to enforce a settlement agreement in accordance with
     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). When, as here, an appellant

     7
       Specifically, in his petition for review, as he did below, the appellant asserts that he
     seeks to rescind the settlement agreement based on the agency’s alleged breach. PFR
     File, Tab 1 at 1; C-2 CF, Tab 4 at 1-2. However, in his response to the show cause
     order, the appellant states that he does not want to rescind the settlement agreement.
     PFR File, Tab 7 at 1. Instead, among other things, he contends that he seeks monetary
     damages for the agency’s alleged breach, a remedy that the Board would have no
     authority to order. PFR File, Tab 7 at 1; see Smith v. Department of the Army,
     72 M.S.P.R. 676, 679 (1996) (finding that the Board lacks authority to award damages
     for breach of a settlement agreement). He also states that he wishes to reinstate his
     EEO complaints, which he withdrew pursuant to the settlement agreement. PFR File,
     Tab 7 at 1; see IAF, Tab 9 at 5; see also Kitt v. Department of the Navy, 116 M.S.P.R.
     680, ¶ 12 (2011) (finding that if a settlement agreement is rescinded, the settlement
     terms become inoperative, and the parties are essentiall y restored to the status
     quo ante).
                                                                                         7

      alleges noncompliance with a settlement agreement, the agency must produce
      relevant, material, and credible evidence of its compliance with the agreement.
      Id.   The ultimate burden, however, remains with the appellant, as the party
      seeking enforcement, to prove breach by a preponderance of the evidence. Id.
¶10         On review, the appellant reiterates his argument, raised below, that the
      agency breached the settlement agreement by providing the               SF-3112B,
      SF-3112D, and supporting documentation to him rather than directly to OPM.
      PFR File, Tab 1 at 1, Tab 7 at 1; C-2 CF, Tab 4 at 1, Tab 11 at 1. The settlement
      agreement stated that the agency would provide the “support” defined by the
      agreement “directly to the [appellant].” IAF, Tab 9 at 3. Therefore, we agree
      with the administrative judge that the agency did not breach the settlement
      agreement by sending the SF-3112B, SF-3112D, and supporting documentation to
      the appellant, rather than to OPM. CID at 3.
¶11         The appellant also repeats his argument that the agency breached the
      settlement agreement when it failed to provide the Disability Retirement
      Application Checklist to OPM within 21 working days of the effective date of the
      settlement agreement. PFR File, Tab 7 at 1; C-2 CF, Tab 4 at 1. We agree with
      the administrative judge that the settlement agreement did not require the agency
      to fill out all forms on the appellant’s behalf, CID at 3, but instead, set forth a
      limited definition of the “support” that the agency was required to provide
      regarding the appellant’s disability retirement application, IAF, Tab 9 at 3.
      However, in addition to the SF-3112B, SF-3112D, and supervisory statement, the
      definition of “support” in the settlement agreement also required the agency to
      provide “any other documentation requested by OPM.”           Id.   The settlement
      agreement further stated that the agency would provide the “support” defined by
      the agreement within 21 working days of the effective date of the agreement. Id.
¶12         In response to the show cause order, the agency submitted evidence that, on
      September 15, 2015, 202 days after the effective date of the settlement
      agreement, the agency received a letter from OPM, dated 6 days earlier, which
                                                                                        8

      requested that the agency provide OPM with a Disability Retirement Application
      Checklist for the appellant.    PFR File, Tab 6 at 12.    On October 21, 2015, a
      Human Resources Assistant with the agency forwarded OPM’s letter to an agency
      Benefits Representative, id. at 6, 11, and a day later, the Benefits Representative
      submitted the Disability Retirement Application Checklist to OPM, C -2 CF,
      Tab 15 at 5, 9.    The agency explains that it sent the Disability Retirement
      Application Checklist to OPM, rather than to the appellant, because the
      September 15, 2015 letter from OPM instructed it to do so.        PFR File, Tab 6
      at 6, 12.
¶13         The provisions of a settlement agreement must be read “as part of an
      organic whole, according reasonable meaning to all of the contract terms ” to
      identify and give weight to the “spirit” or essence of the agreement as intended by
      the parties. Allen, 112 M.S.P.R. 659, ¶ 17 (quoting Lockheed Martin IR Imaging
      Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997)). The Board will give a
      reasonable interpretation to the terms of the agreement to carry out the parties ’
      intentions and to avoid absurd results.       Donahue v. U.S. Postal Service,
      94 M.S.P.R. 488, ¶ 12 (2003).       To the extent that the settlement agreement
      required the agency to provide documentation that OPM requested more than
      21 days after the effective date of the settlement agreement, we find that by
      transmitting the Disability Retirement Application Checklist to OPM within
      37 days of receiving OPM’s request, the agency acted within a reasonable time
      under the circumstances. See Mincey v. U.S. Postal Service, 91 M.S.P.R. 247,
      ¶ 11 (2002) (finding that when a settlement agreement is silent as to th e time of
      performance, a reasonable time under the circumstances will be presumed). Thus,
      we affirm the administrative judge’s finding that the appellant failed to establish
      that the agency breached the settlement agreement based on its submission of the
      Disability Retirement Application Checklist to OPM, as modified to clarify the
      basis for this finding. CID at 3.
                                                                                            9

¶14         Finally, on review, the appellant repeats his argument that the agency
      breached the settlement agreement by providing him with copies of documents
      and forms, rather than the originals, when originals were allegedly required by
      OPM. PFR File, Tab 1 at 1, Tab 7 at 1; C-2 CF, Tab 11 at 1, Tab 12 at 2. The
      administrative judge did not address this argument in the compliance initial
      decision, and the settlement agreement is silent as to whether copies o r originals
      of the forms and supporting documentation are required. CID; IAF, Tab 9 at 3-7.
¶15         In response to the show cause order, the agency presented evidence that
      OPM required original forms and documents with signatures, and that the agency
      provided original forms and documents with signatures. PFR File, Tab 6 at 5-7,
      10. The appellant has not provided any evidence to support his assertion to the
      contrary.     PFR   File,    Tab 7;    C-2 CF,   Tabs 1,   4,   11,   20;   see   Allen,
      112 M.S.P.R. 659, ¶ 7 (finding that, as the party seeking enforcement, the
      appellant bears the burden of proving breach by a preponderance of the evidence).
      Accordingly, we modify the compliance initial decision to find that, even
      assuming that the settlement agreement required the agency to provide original
      forms and documents, the appellant failed to prove that the agency breached the
      settlement agreement by failing to do so.
¶16         Accordingly, for the reasons discussed above, we affirm the compliance
      initial decision as modified herein.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, c onstitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
                                                                                 10

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 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.
