Opinion

Edward W Carpenter v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jan 2, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EDWARD W. CARPENTER, DOCKET NUMBER

Appellant, PH-0752-15-0251-X-1

PH-0752-15-0251-C-1

DEPARTMENT OF THE NAVY,

Agency.

DATE: January 2, 2025

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edward W. Carpenter , East Lebanon, Maine, pro se.

Scott W. Flood , Esquire, and Jeffrey A. Epstein , Portsmouth, New

Hampshire, for the agency.

Cindee Carter , Kittery, Maine, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 This case is before the Board pursuant to a February 14, 2024 Board Order,

which reversed the compliance initial decision and found the agency in

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

noncompliance with a settlement agreement. Carpenter v. Department of the Navy,

MSPB Docket No. PH-0752-15-0251-X-1, Compliance Referral File (CRF), Order

(Order) (Feb. 14, 2024); Carpenter v. Department of the Navy, MSPB Docket No.

PH-0752-15-0251-C-1, Compliance Initial Decision (CID) (Apr. 16, 2019). For the

reasons discussed below, we now find the agency in compliance and DISMISS the

appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In August 2015, the parties entered into a settlement agreement resolving the

appellant’s removal appeal. See Order at 2. The administrative judge accordingly

dismissed the appeal as settled and entered the agreement into the record for

enforcement. See id.

¶3 On December 13, 2018, the appellant timely filed a petition for enforcement,

asserting that the Department of the Navy (Navy) had violated the settlement

agreement because the Defense Finance and Accounting Services (DFAS) was

contending that the appellant had been overpaid for prepaid Federal Health

Employee Benefits premiums, and owed a debt of $1,712.99. Id. at 3. The

administrative judge denied the appellant’s petition for enforcement, holding that

the appellant received back pay under the Back Pay Act during the time periods at

issue, and had not shown that he elected to forego health insurance coverage during

that time period, or that the agency had already deducted the premiums owed from

the back pay amount. Id. at 3-4.

¶4 The appellant timely filed a petition for review of the CID. On February 14,

2024, the Board found, based on new evidence submitted by the appellant, that the

appellant had elected not to have his health insurance reinstated during the back pay

period. Id. at 5-6. Accordingly, the Board held that the Navy was not in

compliance with the settlement agreement and docketed the instant compliance

referral matter to adjudicate the remaining compliance issue. Id. at 7-8. The Board

ordered the Navy to submit satisfactory evidence of compliance to the Clerk of the

Board within 60 days of the date of the Order. Id. at 8. The Board also stated that

the appellant could respond to the Navy’s evidence of compliance within 20 days of

the date of service of the agency’s submissions, and that if he did not respond, the

Board “may assume that he is satisfied with the agency’s actions and dismiss the

petition for enforcement. Id. at 9.

¶5 After two requests for extension of time, the Navy filed a response to the

Board’s February 14, 2024 Order on August 12, 2024. CRF, Tab 7. The agency

submitted a narrative statement asserting that DFAS had cancelled the $1,712.99

debt that the appellant paid to the agency, and processed a check, to be issued to the

appellant 10 days from the date of the Navy’s response, in the amount of $2,289.88.

Id. at 1-2. This amount included collection fees paid by the appellant to DFAS. Id.

at 5. The Navy attached to its submission an “Out of Service Cancellation

Request,” and an “Out of Service Debt Refund Request” cancelling the appellant’s

debt. Id. at 7-9.

¶6 On August 22, 2024, the Navy filed a “Notice of Full Compliance,” stating

that it had issued full payment to the appellant, attaching a “Public Voucher for

Refunds” showing that a debt for the appellant in the amount of $2,289.88 had been

cancelled. CRF, Tab 8 at 4, 6.

¶7 The appellant has not responded to the Navy’s submissions.

ANALYSIS

¶8 A settlement agreement is a contract and, as such, will be enforced in

accordance with contract law. Burke v. Department of Veterans Affairs,

121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement that

has been entered into the record in the same manner as a final Board decision or

order. Id. In a proceeding to enforce a settlement agreement, the party alleging

noncompliance with the agreement has the burden of proof. Modrowski v.

Department of Veterans Affairs, 97 M.S.P.R. 224, ¶ 7 (2004). However, when an

appellant makes specific allegations of noncompliance, as appellant did here, it is

the agency’s burden to produce relevant evidence within its control showing

compliance with its agreement or showing good cause for its failure to comply. Id.

¶9 Here, the Navy has submitted evidence that the challenged debt was

cancelled, and payment issued to the appellant, along with additional costs. CRF,

Tabs 7, 8. The appellant did not respond to the Navy’s submissions, despite being

apprised that the Board might construe lack of response as satisfaction with the

Navy’s response. Accordingly, in light of the appellant’s failure to respond, we

find that the Navy is now in full compliance with the settlement agreement and the

Board’s February 14, 2024 Order, and dismiss the petition for enforcement. 2 This

is the final decision of the Merit Systems Protection Board in these compliance

proceedings. 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 RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you

believe you meet these requirements, you must file a motion for attorney fees and

costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your motion for attorney fees and costs with the office that issued the

initial decision on your appeal.

Because we find the Navy in compliance with the settlement agreement, the Navy’s

motion to dismiss the appeal is moot.

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 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

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.

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 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

following address: