Opinion

Tracy S Brown v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRACY S. BROWN, DOCKET NUMBER

Appellant, AT-0845-19-0329-C-1

OFFICE OF PERSONNEL DATE: July 11, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tracy S. Brown , Suffolk, Virginia, pro se.

Michael Shipley , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the compliance initial

decision, which denied her petition for enforcement of a settlement agreement

with the Office of Personnel Management (OPM) regarding collection of an

overpayment of her Federal Employees’ Retirement System (FERS) annuity.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

On petition for review, the appellant reasserts her argument from below, claiming

that, because OPM had refunded amounts previously withheld from her annuity to

collect portions of the overpayment and indicated in a November 2019 Notice of

Annuity Adjustment that it was no longer withholding funds from the appellant’s

annuity, its decision to resume collection of the overpayment at a later date

constituted a breach of the parties’ settlement agreement. Petition for Review

(PFR) File, Tab 1 at 6. Generally, we grant petitions such as this one only in the

following circumstances: 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

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 and AFFIRM the initial decision,

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

The administrative judge correctly found that the terms of the parties’

April 22, 2019 settlement agreement did not reflect that OPM agreed to waive the

overpayment. The agreement explicitly provided for the collection and

repayment of the overpayment amount through monthly installments. Therefore,

the appellant failed to establish that OPM breached the settlement agreement by

resuming its collection of the overpayment in monthly installments. Brown v.

Office of Personnel Management, MSPB Docket No. AT-0845-19-0329-C-1,

Compliance File (CF), Tab 4, Compliance Initial Decision (CID) at 2; see

Rodriguez v. Department of Justice, 84 M.S.P.R. 685, ¶ 7 (2000) (stating that a

party is entitled to no more than is provided by the terms of a settlement

agreement). To the extent the appellant argued below that the agency’s

November 2019 Notice of Annuity Adjustment, wherein it stated that it was “no

longer withholding the annuity overpayment,” constituted a modification of the

settlement agreement terms, the administrative judge does not appear to have

addressed this argument. CID. Because the appellant raises it again on review,

PFR File, Tab 1 at 6, we address it here.

The Board has stated that a settlement agreement is a contract, and a

contract may be modified if there is mutual assent to the modification. See

Carson v. Department of Energy, 77 M.S.P.R. 453, 458 (1998). We find that the

record does not evidence any mutual assent to a modification of the settlement

agreement. The November 2019 notice does not reference the settlement

agreement. Nor does the notice claim that it was intended to override or amend

the terms of the settlement agreement. CF, Tab 1 at 5. There is no other

evidence in the record, such as correspondence between the parties, setting forth

their intent that the settlement agreement be modified to provide for a waiver of

the overpayment. CF, Tabs 1, 3; PFR File, Tabs 1, 4.

Importantly, even assuming that both parties believed that the

November 2019 Notice of Annuity Adjustment effectively modified the terms of

the settlement agreement, for a term to be enforceable, there must be

consideration, i.e., a performance or a return promise that must be bargained for.

See Black v. Department of Transportation, 116 M.S.P.R. 87, ¶ 17 (2011). Here,

there is no evidence that, following the execution of the April 22, 2019 settlement

agreement, the parties later bargained for a waiver term so as to bind themselves

to a modified contract. CF, Tabs 1, 3; PFR File, Tabs 1, 4. Without any

documentation evidencing the intent of the parties to modify the April 22, 2019

settlement agreement, or consideration to support that intent, the Board lacks the

authority to unilaterally read into the settlement agreement a modification of its

material terms. See Rodriguez, 84 M.S.P.R. 685, ¶ 7. As such, the

November 2019 Notice of Annuity Adjustment does not have an effect on the

terms of the April 22, 2019 settlement agreement, nor does it show that OPM

breached that agreement. 2

The appellant submits with her petition for review bank records purporting

to show her transaction history, including deposits of her FERS annuity. PFR

File, Tab 1 at 4-5. These documents were not submitted below. CF, Tab 1.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the record closed before the administrative judge despite the

party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

213-14 (1980). Here, the appellant’s bank records appear to have been accessed

on December 12, 2019. PFR File, Tab 1 at 4-5. The record closed below on or

around July 6, 2020. CF, Tab 2 at 4, Tab 3. Therefore, the documents submitted

for the first time on review were available before the record closed, and the

appellant has not explained why she was unable to submit them below. PFR File,

Tab 1. Therefore, we have not considered them.

Based on the foregoing, we deny the appellant’s petition for review and

affirm the initial decision.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

The Board lacks jurisdiction to address in this settlement enforcement proceeding

whether, independent of the parties’ agreement, OPM’s statement that it was no longer

withholding funds from the appellant’s annuity constituted a waiver of the

overpayment. To the extent that the appellant is arguing that OPM waived its right to

resume collection of the overpayment, she needs to raise that with OPM, and the Board

can only address it following issuance of a final decision by OPM. See 5 U.S.C.

§ 8461(e)(1); 5 C.F.R. § 841.308.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the