Opinion

Matthew J Rovnan v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Feb 21, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW J. ROVNAN, DOCKET NUMBER

Appellant, PH-0752-23-0126-X-1

DEPARTMENT OF THE INTERIOR, DATE: February 21, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Matthew J. Rovnan , Bristol Township, Pennsylvania, pro se.

Pernell Telfort , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The administrative judge issued a compliance initial decision finding the

agency noncompliant with Board’s Final Order in the underlying appeal.

Rovnan v. Department of the Interior, MSPB Docket No. PH-0752-23-0126-C-1,

Compliance File, Tab 6, Compliance Initial Decision (CID); see Rovnan v.

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

Department of the Interior, MSPB Docket No. PH-0752-23-0126-I-1, Initial

Appeal File, Tab 8, Initial Decision (ID). For the reasons discussed below, we now

find the agency in compliance and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On June 9, 2023, the administrative judge issued a compliance initial

decision finding the agency noncompliant with Board’s Final Order in the

underlying appeal, which reversed the appellant’s termination and required the

agency to reinstate him with back pay and appropriate benefits. 2 See ID at 8. The

administrative judge granted the appellant’s petition for enforcement and ordered

the agency to take certain actions to comply with the Final Order in the underlying

appeal. CID at 3.

In the compliance initial decision, the administrative judge informed the

agency that, if it decided to take the compliance actions required by the decision, it

must submit to the Office of the Clerk of the Board, within the time limit for filing

a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the

actions identified in the compliance initial decision, along with evidence

establishing that it had taken those actions. CID at 4; see 5 C.F.R. § 1201.183(a)(6)

(i) (2023). He also informed the parties of their option to request Board review of

the compliance initial decision by filing a petition for review by July 14, 2023, the

date on which the findings of noncompliance would become final unless a petition

for review was filed. CID at 5; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii), (b)

(2023). Neither party petitioned for review. Accordingly, pursuant to 5 C.F.R.

§ 1201.183(b)-(c), the administrative judge’s findings of noncompliance became

final, and the appellant’s petition for enforcement was referred to the Board for a

final decision on the issues of compliance. Rovnan v. Department of the Interior,

MSPB Docket No. PH-0752-23-0126-X-1, Compliance Referral File (CRF), Tab 1.

The initial decision became the Board’s final decision upon the expiration of the petition

for review deadline. 5 C.F.R. § 1201.113.

The Clerk of the Board issued an acknowledgement order instructing the

agency to file evidence of compliance within 15 calendar days and advising the

appellant that he should respond within 20 days of the date of the agency’s

submission. The order noted that, if he did not do so, the Board may assume he was

satisfied and dismiss the petition for enforcement. CRF, Tab 1 at 3.

Subsequently, the parties filed various pleadings disputing whether the

agency had achieved compliance. CRF, Tabs 2-5. In its final submission, the

agency informed the Board for the first time that the parties had entered into a

settlement agreement in June 2023—apparently within days of the issuance of the

compliance initial decision—that resolved the remaining disputed issues. 3 CRF,

Tab 5 at 4. The agency asserted that the appellant’s claims that the agency had

failed to comply with its obligations under the Board’s Final Order were, in reality,

claims of alleged failure to comply with the agency’s obligations under the

settlement agreement. Id. The agency asserted that it had complied with its

obligations and, to the extent the appellant identified additional deficiencies, that it

had complied as best it could, given the appellant’s change of employers. Id. at 6.

The agency argued that it had therefore achieved full compliance with the Board’s

Final Order.

On August 6, 2024, the Board ordered the appellant to respond to the

agency’s submission within 20 days. The Board warned the appellant that, if he

failed to respond, the Board may assume he was satisfied and dismiss his petition

for enforcement. CRF, Tab 6 at 2. The appellant did not file a response.

ANALYSIS

When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation he would

have been in had the wrongful personnel action not occurred. House v. Department

Earlier submissions by the appellant vaguely referenced an unspecified settlement

agreement without explaining that the agreement concerned this petition for enforcement.

CRF, Tab 2 at 3; CRF, Tab 4 at 3.

of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the burden to prove its

compliance with a Board order. Vaughan v. Department of Agriculture,

116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance must include

a clear explanation of its compliance actions supported by documentary evidence.

Id. The appellant may rebut the agency’s evidence of compliance by making

“specific, nonconclusory, and supported assertions of continued noncompliance.”

Brown v. Office of Personnel Management, 113 M.S.P.R. 325, ¶ 5 (2010).

Here, the agency has asserted compliance with its obligations stemming from

the Board’s Final Order, as well as with a settlement agreement entered into by the

parties that addressed, among other things, the relief ordered by the Board. CRF,

Tab 5. The appellant did not respond to the agency’s submission, despite being

ordered to do so and being warned that failure to respond may cause the Board to

assume he was satisfied and dismiss his petition for enforcement. Because the

appellant has not challenged the agency’s assertions regarding its compliance with

the Final Order, we find the agency in compliance with that order and the

compliance initial decision.

We note that the settlement agreement provided by the agency does not

specifically provide for enforcement before the Board. See CRF, Tab 5 at 16. Nor

did the parties attempt to enter it into the record for enforcement before the

administrative judge or in the current proceeding, or explain how, if at all, the

settlement agreement might affect the findings in the compliance initial decision.

Accordingly, in finding the agency compliant with the Board’s Final Order, we rely

solely on the appellant’s failure to rebut the agency’s assertions of compliance with

the Board’s Final Order and do not evaluate the agency’s obligations under or

compliance with the settlement agreement. See Delorme v. Department of the

Interior, 124 M.S.P.R. 123, ¶¶ 16, 21 (2017) (stating that the Board enforces only

settlement agreements that “have been entered into the record for that purpose”);

see also Special Counsel v. Cowan, 2022 MSPB 2, ¶ 10 (noting that, to be accepted

for enforcement, the Board must find the settlement agreement “freely entered and

lawful on its face”).

Having found the agency in compliance with the Final Order, we dismiss the

petition for enforcement. 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 OF APPEAL RIGHTS 4

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

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.

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. 5 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: