                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WAYNE C. HAWKES,                                DOCKET NUMBERS
                 Appellant,                          SF-0752-13-0338-C-2
                                                     SF-0752-13-0338-X-1
                  v.

     DEPARTMENT OF AGRICULTURE,
                 Agency.                             DATE: November 3, 2014



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Wayne C. Hawkes, Davis, California, pro se.

           Suzanne L. Lawrence, Beltsville, Maryland, 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 compliance initial
     decision in MSPB Docket No. SF-0752-13-0338-C-2, which granted the agency’s
     petition for enforcement of a settlement agreement. Also before the Board is the
     compliance initial decision in MSPB Docket No. SF-0752-13-0338-C-1 that


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     granted the appellant’s petition for enforcement of the same settlement
     agreement. 2 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 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). We JOIN these cases for adjudication under 5 C.F.R. § 1201.36.
     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, in
     MSPB Docket No. SF-0752-13-0228-C-2, we DENY the petition for review and
     AFFIRM the compliance initial decision, which is now the Board’s final decision.
     5 C.F.R. § 1201.113(b).       In MSPB Docket No. SF-0752-13-0338-X-1, we
     VACATE the compliance initial decision issued under MSPB Docket No. SF-
     0752-13-0338-C-1 and DISMISS the appellant’s petition for enforcement as
     moot. The settlement agreement is RESCINDED, and the appellant’s underlying
     appeal of his 30-day suspension is REINSTATED. We FORWARD this matter to
     the administrative judge for adjudication.
¶2         The agency suspended the appellant for 30 days based on alleged
     misconduct, and the appellant filed an appeal of his suspension with the Board.

     2
       Following the administrative judge’s issuance of the compliance initial decision in
     MSPB Docket No. SF-0752-13-0338-C-1, the agency, pursuant to 5 C.F.R.
     § 1201.183(a)(6)(i), filed a statement of compliance with the Office of the Clerk of the
     Board. That office subsequently issued an acknowledgment order to the parties
     advising that the Board had assigned a new docket number to the matter, MSPB Docket
     No. SF-0752-13-0338-X-1. See 5 C.F.R. § 1201.183(c).
                                                                                       3

     While the appeal was pending, the parties reached a settlement agreement that
     provided, in relevant part, that the agency would cancel the 30-day suspension
     and substitute in its place a 10-day suspension, provide appropriate back pay and
     benefits, pay $14,000 in attorney fees to the appellant’s attorney, and restore the
     appellant’s access to the agency’s facility and personnel.      MSPB Docket No.
     SF-0752-13-0338-C-2, Compliance File (CF 2), Tab 1 at 9-11.          The appellant
     agreed not to bring any further complaints or litigation in any forum against the
     agency or its employees based on events that occurred on or prior to the date of
     the agreement. Id. at 12. The administrative judge entered the agreement into the
     Board’s record for enforcement purposes and dismissed the appeal. Hawkes v.
     Department of Agriculture, MSPB Docket No. SF-0752-13-0338-I-1, Initial
     Decision at 1-2.
¶3        The appellant thereafter petitioned for enforcement, contending, inter alia,
     that the agency breached the agreement by failing to fully restore his access to the
     agency’s facility and employees as contemplated in the agreement. MSPB Docket
     No. SF-0752-13-0338-C-1, Compliance File, Tab 1.         The administrative judge
     issued a compliance initial decision in which he granted the petition for
     enforcement and found that the agency had not complied with the settlement
     agreement. Hawkes v. Department of Agriculture, MSPB Docket No. SF-0752-
     13-0338-C-1, Compliance Initial Decision.
¶4        The agency also petitioned for enforcement, contending, inter alia, that the
     appellant breached the agreement by bringing suit in state court against an agency
     employee based on substantially the same facts that underlay his suspension.
     CF 2, Tabs 1, 6.    The agency sought rescission of the settlement agreement,
     repayment of the money it had paid to the appellant under the terms of the
     agreement, and reinstatement of the original appeal.         CF 2, Tab 6.       The
     administrative judge issued a separate compliance initial decision in which he
     granted the petition for enforcement and found that the appellant materially
     breached the settlement agreement. Hawkes v. Department of Agriculture, MSPB
                                                                                      4

     Docket No. SF-0752-13-0338-C-2, Compliance Initial Decision (CID 2) at 3-4.
     The administrative judge also granted the agency’s request to rescind the
     settlement agreement and reinstate the original appeal.       CID 2 at 4.      The
     administrative judge found that he had the authority to order the appellant to
     reimburse the agency “for the twenty days’ worth of back pay he received under
     the settlement agreement along with the $14,000” in attorney fees. CID 2 at 5.
     Both compliance initial decisions are currently before us.        We address the
     compliance initial decision in MSPB Docket No. SF-0752-13-0338-C-2 granting
     the agency’s petition for enforcement first.
¶5         The Board has the authority to enforce a settlement agreement which, like
     the agreement in this case, has been entered into the record in the same manner as
     any final Board decision or order.     See Williams v. Department of Health &
     Human Services, 114 M.S.P.R. 11, ¶ 6 (2010). Because a settlement agreement is
     a contract, the Board will adjudicate an enforcement proceeding relevant to a
     settlement agreement in accordance with contract law. Id. As the party asserting
     noncompliance, the agency bears the burden of proving by preponderant evidence
     that the appellant breached the settlement agreement. Id.
¶6         A breach of a settlement agreement is material when it relates to a matter of
     vital importance, or goes to the essence of the agreement. Id., ¶ 9. As noted
     above, the appellant materially breached the settlement agreement by filing a
     lawsuit against a coworker. CF 2, Tab 1 at 16-23; see CID 2 at 3-4. Generally,
     where one party commits a material breach of a settlement agreement, the other
     party is entitled to either enforce or rescind the settlement agreement. Williams,
     114 M.S.P.R. 11, ¶ 10. The agency elected rescission. CF 2, Tab 1 at 7, Tab 6
     at 5-6.
¶7         It is accepted law that the Board has the authority to order an appellant to
     reimburse the agency for amounts paid pursuant to a settlement agreement when
     the agreement is rescinded. Stipp v. Department of the Army, 64 M.S.P.R. 124,
     128 (1994), overruled on other grounds by Wisdom v. Department of Defense,
                                                                                        5

      78 M.S.P.R. 652, 656 (1998). It is the Board’s practice in cases such as this one
      to vacate the settlement agreement, order the appellant to reimburse the agency
      for amounts received under the agreement effective upon issuance of the order,
      reinstate the underlying appeal, not stay adjudication of the appeal while the
      appellant completes reimbursement, and resolve any outstanding issues with the
      appellant’s reimbursement in a compliance proceeding at the conclusion of the
      appeal. See Cunningham v. Office of Personnel Management, 110 M.S.P.R. 389,
      ¶ 21 (2009); see also Powell v. Department of Commerce, 98 M.S.P.R. 398, ¶ 15
      (2005). Therefore, the remedy that the administrative judge ordered was entirely
      consistent with Board precedent, and we do not disturb it.
¶8         On review, the appellant submits a number of documents and makes a
      number of arguments that he alleges are based on new and material evidence.
      MSPB Docket No. SF-0752-13-0338-C-2, Petition for Review (PFR) File,
      Tabs 2-3. These documents and arguments pertain to the merits of the underlying
      appeal and not to issues of compliance, and we have not relied on them.
¶9         The appellant also asserts that he was prejudiced when the administrative
      judge held an ex parte status conference with the agency representative and his
      former attorneys but did not include him. PFR File, Tab 1 at 5, Tab 6 at 5-6; see
      CF 2, Tab 3. He contends that the administrative judge advised the agency to
      seek rescission of the agreement and reimbursement for the amounts it had paid.
      PFR File, Tab 1 at 5. The appellant himself stated below that he was in favor of
      rescission, see CF 2, Tab 4 at 2; see also PFR File, Tab 6 at 6, and setting aside a
      settlement agreement essentially restores the parties to the status quo ante, Stipp,
      64 M.S.P.R. at 127. Moreover, the prejudice that the appellant alleges to have
      suffered relates to his claims that the agency committed fraud in negotiating and
      complying with the settlement agreement, which we address below.
¶10        The appellant contends that he was prejudiced when the administrative
      judge issued the compliance initial decision 4 days after service of the agency’s
      response to the appellant’s submission, when the appellant had not received the
                                                                                      6

      agency’s response and had no opportunity to respond. PFR File, Tab 1 at 5-6,
      Tab 6 at 6-8. Because, however, the appellant does not claim he did not breach
      the agreement and because he too seeks rescission of the settlement agreement,
      see PFR File, Tab 6 at 6, he was not prejudiced.
¶11        The appellant raises a number of arguments relating to the agency’s alleged
      bad faith in negotiating and complying with the settlement agreement. PFR File,
      Tab 1 at 4, 6-8, Tab 6 at 5-6, 8-9. The appropriate method for challenging the
      validity of a settlement agreement is to file a petition for review of the initial
      decision dismissing the appeal as settled. Lange v. Department of the Interior,
      98 M.S.P.R. 146, ¶ 3 (2005). Even if the appellant’s allegations were properly
      before us and all of the appellant’s allegations are true, the available remedy is
      rescission of the settlement agreement, which is what we order here. See, e.g.,
      Potter v. Department of Veterans Affairs, 111 M.S.P.R. 374, ¶¶ 9-10 (2009) (the
      Board found that the settlement agreement was invalid because of a mutual
      mistake of law, set aside the agreement, vacated the initial decision, and
      remanded the appeal for a jurisdictional determination and, if necessary,
      adjudication on the merits).
¶12        Because the settlement agreement is rescinded, any issues of compliance
      with the settlement agreement are moot.         See Hernandez v. Department of
      Defense, 112 M.S.P.R. 262, ¶ 9 (2009) (when a settlement agreement is rescinded,
      its terms become inoperative).      Thus, we VACATE the compliance initial
      decision at issue in MSPB Docket No. SF-0752-13-0338-X-1 and DISMISS the
      appellant’s petition for enforcement.

                                              ORDER
¶13        The settlement agreement is RESCINDED. To carry out full rescission of
      the settlement agreement, we ORDER the appellant to reimburse the agency for
      any back pay he received pursuant to the agreement plus $14,000 for attorney fees
      received.    The appellant’s appeal of the original 30-day suspension is
                                                                                      7

      REINSTATED, and we forward this matter to the Western Regional Office for
      reinstatement.
¶14        We further ORDER the appellant to tell the agency promptly in writing
      when he believes he has fully carried out the Board’s Order and of the actions he
      took to carry out the Board’s Order. The agency, if not notified, should ask the
      appellant about its progress. See 5 C.F.R. § 1201.181(b).
¶15        Upon issuance of the Board’s final decision concerning the appellant’s
      30-day suspension, the agency may file a petition for enforcement with the
      Western Regional Office if the agency believes that the appellant did not fully
      carry out the Board’s Order. The petition should contain specific reasons why the
      agency believes that the appellant has not fully carried out the Board’s Order and
      should include the dates and results of any communications with the appellant.
      5 C.F.R. § 1201.182(a).
¶16        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)(1) (5 C.F.R. § 1201.183(c)(1)).

                       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
                                                                                  8

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 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.
