The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MALIHA AZMAT, DOCKET NUMBER
Appellant, PH-0432-12-0020-C-1
v.
DEPARTMENT OF HOMELAND DATE: December 18, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nathaniel D. Johnson, Esquire, White Plains, Maryland, for the appellant.
Lorna J. Jerome, Esquire, Washington, D.C., for the agency.
Melissa Sidebottom, Esquire, Baltimore, 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 initial decision, which
denied her petition for enforcement. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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). 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, we DENY the petition for review, AFFIRM the
initial decision, and FORWARD the appellant’s new allegation of noncompliance
to the Northeastern Regional Office for docketing as a petition for enforcement.
BACKGROUND
¶2 The agency removed the appellant from her position as a GS-06 Secretary,
effective September 23, 2011, for unacceptable performance. MSPB Docket No.
PH-0432-12-0020-I-1, Initial Appeal File (IAF), Tab 1 at 9-12. The appellant
appealed her removal to the Board, and the parties reached a settlement
agreement resolving the appeal. IAF, Tabs 1, 30. Pursuant to the terms of the
settlement agreement, the agency agreed to, among other things, “[p]rocess a
clean [Standard Form (SF)] 50 indicating that [the] Appellant voluntarily resigned
from the Agency on September 23, 2011[,] for personal reasons”; “[r]escind [the]
Appellant’s removal and remove all documents relating to this action from [the]
Appellant’s [official personnel file (OPF)]”; and “[p]rovide neutral references to
prospective employers through Human Resources.” IAF, Tab 30 at 4. The
neutral reference was to include only the “date of hire, date of resignation, nature
of resignation, salary and grade level.” Id. In an initial decision dismissing the
case as settled, the administrative judge found that the settlement agreement was
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lawful, freely reached, and understood by the parties, and entered it into the
record for purposes of enforcement by the Board. IAF, Tab 31, Initial Decision at
2.
¶3 On February 16, 2014, the appellant filed a petition for enforcement
alleging that the agency had breached the settlement agreement by failing to
“remove adverse performance documents from her official personnel file.”
MSPB Docket No. PH-0432-12-0020-C-1, Compliance Appeal File (CAF), Tab 1
at 7. The appellant subsequently clarified that the agency failed to remove from
her OPF a SF-50 evidencing a September 26, 2010 decision to deny her a
within-grade increase (WIGI) because her work was “not at an acceptable level of
competence.” CAF, Tab 6 at 8-10, Tab 13 at 26. According to the appellant, she
received a tentative offer of employment from the National Institute on Aging
(NIA) in December 2013; however, the NIA subsequently declined to hire her
after receiving her OFP containing the WIGI denial. CAF, Tab 1 at 9, Tab 6 at
8-10. After holding a hearing, the administrative judge issued a compliance
initial decision denying the appellant’s petition for enforcement. CAF, Tab 25,
Compliance Initial Decision (CID). The administrative judge found that the
settlement agreement was not ambiguous and did not require the agency to
expunge any and all derogatory information contained in the appellant’s OPF, just
the removal action and all references to the appellant’s removal. CID at 5.
¶4 The appellant has filed a petition for review in which she argues that the
administrative judge erroneously concluded that the settlement agreement was
unambiguous, the settlement agreement did not require the agency to remove all
derogatory materials from her OPF, and the SF-50 evidencing the WIGI denial
was not related to her removal. Petition for Review (PFR) File, Tab 1 at 6-15.
The appellant further contends on review that the administrative judge improperly
excluded certain witnesses from testifying at the hearing. Id. at 4-5. The agency
has filed an opposition to the appellant’s petition. PFR File, Tabs 4-5.
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DISCUSSION OF ARGUMENTS ON REVIEW
¶5 A settlement agreement is a contract, and, as such, will be enforced in
accord with contract law. Allen v. Department of Veterans Affairs, 112 M.S.P.R.
659, ¶ 7 (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). The Board will enforce
a settlement agreement which has been entered into the record in the same manner
as a final Board decision or order. Id. Where the appellant alleges
noncompliance with a settlement agreement, the agency must produce relevant
material evidence of its compliance with the agreement or show that there was
good cause for noncompliance. Id. The ultimate burden, however, remains with
the appellant to prove breach by a preponderance of the evidence. Id. In
interpreting a settlement agreement, the Board looks to the language used by the
parties, and will not interpret the language in a way that unilaterally modifies the
agreement's material terms. See, e.g., Zamora v. Department of Defense,
58 M.S.P.R. 544, 546 (1993).
¶6 The appellant’s assertion that the administrative judge erred in finding that
the agency’s failure to purge her OPF of the WIGI denial did not violate the
settlement agreement is without merit. In relevant part, the settlement agreement
provides that the agency will “[r]escind [the] Appellant’s removal and remove all
documents relating to this action from [the] Appellant’s OPF.” IAF, Tab 30 at 4.
It does not mention anything about expunging documents relating to the denial of
appellant’s WIGI. See id. As such, we find that the administrative judge correctly
found that this provision unambiguously requires the agency to purge the
appellant’s OPF solely of all documents relating to the proposed removal and
removal action. Further, we find that the SF-50 evidencing the WIGI denial does
not constitute a document relating to the removal action. The WIGI denial was
not a basis for the appellant’s removal, the agency did not consider it as an
aggravating factor, and it was not referenced in the proposal notice or the
decision letter. CAF, Tab 14 at 4-14. Accordingly, we find that the
administrative judge properly found that the agency had no obligation under the
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settlement agreement to expunge documents relating to the denial of the
appellant’s WIGI.
¶7 The appellant’s argument that the settlement agreement constitutes a clean
record settlement agreement in which all derogatory information was to be
removed from her OPF is similarly misplaced. A clean record (i.e., replacement
of the SF–50 showing a removal with one showing that the appellant resigned and
expungement of all references to the removal in her OPF) means that the agency
must return one's personnel record “to its former state” prior to the effected
adverse action. See, e.g., Allen, 112 M.S.P.R. 659, ¶ 8; Torres v. Department of
Homeland Security, 110 M.S.P.R. 482, ¶ 10 (2009). In purging the removal
decision, notice of proposed removal, and all references to the removal from the
appellant’s OPF, the agency complied with the terms of the settlement agreement
entered into by the parties in this appeal. See CAF, Tab 4, Subtab 4b.
¶8 Lastly, the appellant contends that the administrative judge improperly
excluded certain NIA witnesses who would have testified that NIA revoked the
appellant’s tentative job offer after receiving the WIGI denial contained in the
appellant’s OPF. PFR File, Tab 1 at 4-5. Even assuming that the administrative
judge improperly excluded this evidence, we find that the appellant’s rights were
not prejudiced because such testimony would not have resulted in a different
outcome where the administrative judge properly found that the agency’s failure
to remove the WIGI denial from the appellant’s OPF was not a breach of the
settlement agreement. As such, we find no basis for reversal. 2 See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
¶9 On review, the appellant also submits a declaration and an email from an
individual at NIA which she contends constitute new and material information
2
In light of our disposition, we do not reach the issue of the timeliness of the
appellant’s petition for review.
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that establishes that the agency breached the settlement agreement by failing to
provide a neutral reference for her with respect to her application for a position
with the NIA. PFR File, Tab 1 at 16-17. The record below reflects that in her
petition for enforcement and the proceedings below, the appellant alleged that the
agency breached the settlement agreement by failing to remove adverse
information from her OPF. The appellant did not raise any claim of
noncompliance due to the agency’s alleged failure to provide a neutral reference.
The Board has held that an issue concerning the interpretation of a settlement
agreement enforceable by the Board, and whether the agency has breached the
agreement, is properly addressed by the administrative judge in the first instance.
Rivera v. U.S. Postal Service, 107 M.S.P.R. 542, ¶ 10 (2007). We therefore
FORWARD to the Northeastern Regional Office for docketing as a new petition
for enforcement the appellant’s allegation that the agency breached the settlement
agreement by failing to provide her with a neutral reference.
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
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).
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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.