The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE Y. CHANDLER, DOCKET NUMBER
Appellant, DC-0752-12-0736-C-1
v.
GENERAL SERVICES DATE: January 21, 2015
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Michelle Y. Chandler, Woodbridge, Virginia, pro se.
Bianca Manns, Washington, D.C., 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 of the parties’ settlement agreement.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed a petition for enforcement in which she alleged that the
agency failed to comply with the parties’ agreement settling her appeal of, among
other actions, a 30-day suspension. Compliance File (CF), Tab 1. On the parties’
request, the administrative judge had entered the settlement agreement into the
record for enforcement purposes. See MSPB Docket No. DC-0752-12-0736-I-1,
Initial Appeal File, Tab 32, Initial Decision. In her petition for enforcement, the
appellant alleged that the agency selected her for a GS-13 Contract Specialist
vacancy and then rejected her even though she was the top candidate. CF, Tab 1
at 5. She further alleged that the individual responsible for that rejection
subsequently told her that he was going to pull a new certificate for the position
at issue, but that she is unaware of any such certificate, and that the same
individual also told her that she should leave the agency. Id. The agency
responded with a motion to dismiss the petition in which it argued that selecting
the appellant for the position at issue was not one of the terms of the parties’
settlement agreement. CF, Tab 5. It alleged that the appellant was instead
attempting to appeal a nonselection, which is outside the Board’s jurisdiction. Id.
The appellant did not respond.
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¶3 In her September 24, 2014 compliance initial decision, the administrative
judge denied the appellant’s petition for enforcement of the settlement agreement.
CF, Tab 6, Compliance Initial Decision (CID). Specifically, the administrative
judge found that the agency had fully complied with the only relevant term in the
agreement, which required it to substitute an official reprimand for the 30-day
suspension that was the subject of the appellant’s appeal, and that the agreement
did not require the agency to place the appellant into the position at issue, or into
any position at all. CID at 2-3. In her petition for review of the compliance
initial decision, the appellant again argues that the agency selected, then rejected
her for the position at issue, and that the agency had singled her out and harassed
her because of her disability or in retaliation. Petition for Review (PFR) File,
Tab 1 at 5. The agency responds in opposition. PFR File, Tab 3.
¶4 The party who is asserting a breach of a settlement agreement has the
burden of proving the breach. Hicks v. U.S. Postal Service, 52 M.S.P.R. 561, 564
(1992). Although the party seeking enforcement has the burden of proof, an
agency must also produce relevant, material, and credible evidence of its
compliance with an agreement upon the filing of a petition for enforcement by an
appellant. Eagleheart v. U.S. Postal Service, 110 M.S.P.R. 642, ¶ 9 (2009).
Settlement agreements brought to the Board for enforcement are enforced and
interpreted in accordance with contract law. Hicks, 52 M.S.P.R. at 564. A
party’s breach is material when it “relates to a matter of vital importance or goes
to the essence of the contract.” Caston v. Department of the Interior,
108 M.S.P.R. 190, ¶ 17 (2008). The Board has held that implicit in any
settlement agreement, as under other contracts, is a requirement that the parties
fulfill their respective contractual obligations in good faith. Kuykendall v.
Department of Veterans Affairs, 68 M.S.P.R. 314, 323 (1995). To establish a
breach of a settlement agreement based on the implied covenant of good faith, the
appellant must show that the agency’s proven retaliatory or harassing actions,
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under the totality of the circumstances, amounted to an unjustified and substantial
deprivation of the appellant’s rights. Id. at 323-25.
¶5 We agree with the administrative judge that the agency has demonstrated its
compliance with the terms of the settlement agreement. CID at 2-3. Moreover,
the appellant’s unsubstantiated allegations do not support an allegation that the
agency breached the covenant of good faith in its implementation of the
settlement agreement.
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).
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
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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.