Opinion

Michael Chesbro v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 17, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL CHESBRO, DOCKET NUMBER

Appellant, SF-1221-20-0140-W-1

DEPARTMENT OF THE ARMY, DATE: July 17, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael Chesbro , Rainier, Washington, pro se.

Stephen Geringer , Esquire, Tacoma, Washington, for the agency.

Robert Jarrett , Esquire, Joint Base Lewis-McChord, Washington, 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 initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND

The appellant was a GS-11 Criminal Intelligence Specialist for the agency

who was required to maintain a security clearance as a condition of employment.

Initial Appeal File (IAF), Tab 7 at 11, 18. On February 28, 2018, the agency

suspended the appellant’s access to classified information, and on September 6,

2018, it proposed his indefinite suspension pending the outcome of the security

clearance determination. Id. at 18-20.

On February 7, 2019, after the appellant responded but before the agency

issued a decision, the parties entered into a settlement agreement in which the

agency agreed to rescind the proposal and the appellant agreed to resign effective

June 30, 2019. Id. at 12-14, 21-23. The settlement agreement also provided that

the appellant would waive his right to any claims related to the proposed

indefinite suspension, as well as any “other disputes, complaints, or claims which

are known to him or which should have been known to him up to and including

the date of his signature on this settlement agreement.” Id. at 12-13. Effective

June 30, 2019, the appellant separated from service by retirement. Id. at 15.

Meanwhile, on August 22, 2018, an agency law enforcement officer

executed a statement of probable cause, averring that the appellant misused an

agency law enforcement database to obtain information that he used in a doxing

campaign against two individuals. IAF, Tab 1 at 20-23. The appellant was

subsequently ordered to appear for arraignment in Federal District Court. Id.

at 19. It is not clear what became of these criminal proceedings.

On September 25, 2019, after he retired but possibly while the criminal

case was still pending, the appellant filed a whistleblower complaint with the

Office of Special Counsel (OSC). IAF, Tab 6 at 22. OSC closed the appellant’s

file without taking corrective action, and the appellant filed the instant IRA

appeal. IAF, Tab 1 at 1-2.

The administrative judge issued the standard jurisdictional order for an IRA

appeal, notifying the appellant of his burden of proof and giving him specific

directions on filing evidence and argument pertinent to the jurisdictional issue.

IAF, Tab 2 at 2-9. The administrative judge subsequently issued another order,

stating that the appellant appeared to have waived his Board appeal rights in the

settlement agreement and notifying the appellant of what he must show to prove

that the agreement was invalid or unenforceable. IAF, Tab 8.

After the record closed, the administrative judge issued an initial decision

dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).

She found that the appellant was claiming personnel actions of harassment,

spurious criminal investigation, suspension, and constructive removal, but that

these claimed personnel actions were variously covered by the waiver provision

of the valid and enforceable settlement agreement, or did not constitute personnel

actions within the meaning of 5 U.S.C. § 2302(a)(2)(A). ID at 7-12.

The appellant has filed a petition for review, arguing that the settlement

agreement was invalid based on false information that the agency provided in the

statement of probable cause and exculpatory information that the agency withheld

from the court. Petition for Review (PFR) File, Tab 2. The agency has filed a

response. PFR File, Tab 1.

ANALYSIS

On petition for review, the appellant does not challenge the administrative

judge’s finding that the criminal proceedings and the agency’s handling of his

Privacy Act request, neither alone nor together, constituted personnel actions

subject to the Board’s IRA jurisdiction. ID at 7-8, 11-12. We find that the

administrative judge’s analysis of these issues is supported by the record and the

law, and we decline to revisit her findings on review. See 5 C.F.R. § 1201.115

(“The Board normally will consider only issues raised in a timely filed petition or

cross petition for review.”). The appellant does, however, renew his argument

that the settlement agreement is invalid due to the agency’s concealment of

material facts about the criminal proceedings. PFR File, Tab 2 at 2-5.

A settlement agreement is a contract between the parties and its terms are

to be interpreted as a question of contract law. LaMontagne v. U.S. Postal

Service, 91 M.S.P.R. 304, ¶ 6 (2002). An appellant may challenge the validity of

a settlement agreement if he believes it was unlawful, involuntary, or the result of

fraud or mutual mistake. Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513, ¶ 11

(2005). Even if invalidity was not apparent at the time of settlement, the

agreement must be set aside if it is subsequently shown by new evidence that the

agreement was tainted with invalidity by fraud or misrepresentation. Henson v.

Department of the Treasury, 86 M.S.P.R. 221, ¶ 7 (2000). However, the party

challenging the validity of a settlement agreement bears a heavy burden of

showing a basis for invalidation. Bahrke, 98 M.S.P.R. 513, ¶ 11. In this case, we

find that the appellant is essentially arguing that the settlement agreement was

invalid based on fraud in the inducement, i.e., an intentional misrepresentation of

a material risk or duty which reasonably induces the other party to enter into the

agreement. 2 Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 7 (2010)

(citing Black’s Law Dictionary 671 (7th Ed. 1999)). To establish that a

settlement agreement resulted from fraud in the inducement, the appellant must

show that the agency knowingly concealed a material fact or intentionally misled

him. Id.

The appellant argues that his waiver of Board appeal rights was not

knowing and informed because the agency concealed material facts, “preventing

[him] from being fully aware of the Prohibited Personnel Practices and criminal

activity” that the agency committed against him at the time that the settlement

agreement was signed. PFR File, Tab 2 at 2. By “Prohibited Personnel Practices

and criminal activity,” it appears that the appellant is referring to the August 22,

2018 statement of probable cause, which he claims was based on knowingly false

information and excluded exculpatory information in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Id. The appellant alleges that the criminal

prosecution and the proposed indefinite suspension were based on the same

misinformation, and that the agency prevented him from learning about the basis

for either action in any more than a general sense. Id. at 3-4. He further argues

that the agency knew or should have known that the indefinite suspension could

not be sustained. Id. at 4-5.

As an initial matter, we note that the reason for the proposed indefinite

suspension was the suspension of the appellant’s security clearance, and not the

underlying alleged misconduct. IAF, Tab 7 at 18. Because the Board lacks the

authority to review the reasons underlying a security clearance determination,

Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), there is no reason

The appellant characterizes his argument as pertaining to a violation of the implied

covenant of good faith. PFR File, Tab 2 at 3. However, a violation of a covenant of

good faith constitutes a breach of the settlement agreement; it does not affect the

validity of the agreement ab initio. See, e.g., Timberlake v. U.S. Postal Service,

79 M.S.P.R. 520, 524-25 (1998); Kuykendall v. Department of Veterans Affairs ,

68 M.S.P.R. 314, 323-24 (1995). Reading this pro se appellant’s petition for review as

a whole, and considering that the alleged agency misconduct preceded the settlement

agreement, we find that he is arguing invalidity rather than breach.

to think that the indefinite suspension would not have been sustained on appeal

regardless of whether the appellant committed the misconduct as alleged.

Furthermore, there is no reason to think that the agency knew or should have

known that the contents of the statement of probable cause might have been

material to the appellant’s decision to settle his case. Although the criminal and

administrative cases may have stemmed from the same alleged misconduct, the

proceedings were separate, and the criminal prosecution was out of the agency’s

hands by the time the appellant entered into the settlement. ID at 7.

Moreover, there is no reason to believe that the agency was concealing the

statement of probable cause from the appellant. Had the appellant requested the

statement of probable cause prior to settlement and the agency denied his request,

the analysis might be different. However, the appellant did not actually request

the statement until May 9, 2019, whereupon the agency promptly gave it to him.

IAF, Tab 1 at 19-25.

For these reasons, and for the reasons explained in the initial decision, we

agree with the administrative judge that the appellant has failed to show that the

agency induced him to settle his case by knowingly concealing any material fact

or by intentionally misleading him.

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

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

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.

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

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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