The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS H. DAY, DOCKET NUMBER
Appellant, SE-0752-94-0737-C-2
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 5, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Dennis H. Day, Mountain Home, Idaho, pro se.
Larry Pruitt, Joint Base Andrews, 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 compliance initial
decision, which denied his petition for enforcement. 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 erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 Effective September 16, 1994, the agency removed the appellant from his
position as a GS-9 Supervisory Art Specialist. MSPB Docket No. SE-0752-94-
0737-I-1, Initial Appeal File (I-1 IAF), Tab 1 at 5. The appellant’s appeal was
resolved through a settlement agreement. 2 MSPB Docket No. SE-0752-94-0737-
I-2, Initial Appeal File (I-2 IAF), Tab 3. Pursuant to the terms of the settlement
agreement, the agency agreed to, among other things, “reassign Appellant from
his former position as Arts & Crafts Specialist Supervisor with the 366th Wing
Services Squadron to the currently vacant position of Woodworker Packer, a
WG-7 with the 366th Wing Transportation Squadron” and to provide the
2
After the appellant filed his appeal, the agency rescinded the removal action and the
administrative judge dismissed the appellant’s appeal for lack of jurisd iction. I-1 IAF,
Tab 10 at 1-2. Subsequently, the appellant filed a petition for enforcement alleging that
the agency failed to completely rescind h is removal, which was forwarded to the Board
and docketed as a petition for review. MSPB Docket No. SE-0752-94-0737-I-1,
Petition for Review (I-1 PFR) File, Tab 1 at 3, Tab 2. The Board denied the appellant’s
petition for review, but forwarded his claim that he was not returned to the status quo
ante to the regional office for docketing as a new appeal. I-1 PFR File, Tab 5 at 2-3.
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appellant “pay retention based on his former GS-9 position” and “applicable GS-9
step increases and scheduled pay changes/increases upon obtaining satisfactory
job performance ratings.” I-2 IAF, Tab 3 at 2 (May 23, 1995 Settlement
Agreement, paragraph 2(d)).
¶3 Following settlement, the appellant filed a petition for enforcement of the
settlement agreement, contending, among other things, that the agency had
breached paragraph 2(d) of the settlement agreement by failing to pay him an
annual pay adjustment and step increase. MSPB Docket No. SE-0752-94-0737-
C-1, Compliance File, Tab 1, Tab 4 at 4. After the administrative judge denied
the appellant’s petition for enforcement, the Board, on review, issued an Opinion
and Order finding that the agency, by its own admission, was in breach of
paragraph 2(d) of the settlement agreement. Day v. Department of the Air Force,
78 M.S.P.R. 364, 367 (1988). The Board found that paragraph 2(d) of the
settlement agreement was legally unenforceable in that the agency, by statute,
could not provide for both pay retention as well as step increases and locality
adjustments; the Board remanded the case so that the appellant could argue either
that the agreement should be rescinded or have the unlawful portion (the step
increases and locality adjustments) severed from the settlement agreement. Id.
at 368.
¶4 On remand, the parties entered into a written agreement amending the prior
settlement agreement. MSPB Docket No. SE-0752-94-0737-B-1, Remand (B-1)
File, Tab 4 (June 25, 1998 Amendment to May 23, 1995 Settlement Agreement).
Pursuant to the amendment, the parties agreed that all provisions of the prior
agreement remained in effect, except the provision in paragraph 2(d) in which the
agency agreed to provide the appellant with GS-9 step increases. B-1 File, Tab 4
at 2. Instead, the agency agreed to pay the appellant a lump sum of $8,642.01.
Id.
¶5 Almost 16 years later, the appellant has filed another petition for
enforcement asserting that the agency has not complied with the settlement
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agreement provisions “regarding pay retention” and “has ignored repeated
requests to correct this issue.” MSPB Docket No. SE-0752-94-0737-C-2,
Compliance (C-2) File, Tab 1 at 6. The appellant also alleged that the agency
breached its agreement to provide him with priority placement for a GS-9 position
and refused to place him in a GS-9 position even after his return from a
temporary overseas assignment at the GS-9 level in 2000. C-2 File, Tab 8 at 5-6,
Tab 11 at 3-4. Further, the appellant complained that, as a result of the agency’s
actions, his retirement annuity will be less than had he remained in his GS-9
position. C-2 File, Tab 11 at 1-2.
¶6 Without holding a hearing, the administrative judge issued a compliance
initial decision denying the appellant’s petition for enforcement. C-2 File,
Tab 13, Compliance Initial Decision (CID). The administrative judge found that
the parties had agreed that the appellant would receive pay retention based on his
GS-9 step 6 position, which he received until the agency properly terminated it in
accordance with 5 U.S.C. § 5363(b) on September 16, 2007, because his basic pay
at the WG-8 level had increased to an amount greater than the GS-9 step 6
retained rate. CID at 6. The administrative judge further found that the
agreement did not require the agency to provide the appellant with priority
consideration for GS-9 positions and that the appellant failed to explain what
other reinstatement rights the agency did not provide to him. CID at 6-7.
¶7 The appellant filed a petition for review in which he does not challenge any
of the administrative judge’s findings but rather generally reiterates his
arguments below that the agency violated its agreement to return him to a GS-9
position after his reinstatement and that he should have continued to have been
paid at the GS-9 level. 3 MSPB Docket No. SE-0752-94-0737-C-2, Petition for
3
The appellant also argues for the first time on review that the agency retaliated against
him for filing the petition for enforcement by subjecting him to a drug test, issuing h im
a proposed reprimand, and forcing him to retire in lieu of h is position being elim inated
under a reduction in force. C-2 PFR File, Tab 1 at 4, 10-15. The Board generally will
not consider an argument raised for the first time in a petition for review absent a
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Review (C-2 PFR) File, Tab 1. The agency filed an opposition to the appellant’s
petition. C-2 PFR File, Tab 3. The appellant has filed a reply. 4 C-2 PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 We have considered the appellant’s arguments on review and find that they
present no basis to disturb the administrative judge’s initial decision. The
appellant does not challenge the administrative judge’s finding that the agency
correctly provided him with pay retention at the GS-9, step 6 level until his basic
pay increased to an amount greater than his retained pay. CID at 6. As the
administrative judge explained, the agency’s actions were consistent with the pay
retention statute. CID at 6; see 5 U.S.C. § 5363(b). The appellant also does not
challenge the administrative judge’s finding that the agreement did not require the
agency to provide him priority consideration for GS-9 positions. CID at 6-7.
Based on our review of the record, we discern no basis to disturb the
administrative judge’s conclusions on these issues. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); see also Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
showing that it is based on new and material evidence not previously availab le despite
the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980). The appellant has not attempted to show that his new arguments are based on
new or material evidence not previously availab le. C-2 PFR File, Tab 1. Accordingly,
the appellant’s new arguments will not be considered for the first time on review.
4
We note that the appellant’s reply is dated November 17, 2014, but the date stamp
reflects a submission date of November 18, 2014. C-2 PFR File, Tab 4. Thus, it is
unclear whether the appellant’s reply was timely filed on or before November 17, 2014.
See 5 C.F.R. § 1201.114(e). However, we have considered the appellant’s reply and
find that it does not affect our disposition in th is case.
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¶9 Regarding the appellant’s argument that the agency violated the terms of the
settlement agreement to look for and to return him to a GS-9 position after his
reinstatement, we find that the settlement agreement did not require the agency to
do so and we will not read such a requirement into the agreement. See Davis v.
Department of Veterans Affairs, 69 M.S.P.R. 627, 630 (1996 (The Board will not
imply a term into an agreement that is unambiguous, and will not hear a party’s
complaints about matters that were not included in a settlement agreement).
Further, we note that both the May 23, 1995 Settlement Agreement and the
June 25, 1998 Amendment to the Settlement Agreement contain express
provisions that clearly state that these agreements constitute the full agreement
between the parties and that no other agreements are binding unless signed by
both parties. I-2 IAF, Tab 3 at 2; B-1 File, Tab 4 at 2.
¶10 In sum, the administrative judge properly found that the agency has
complied with the terms of the settlement agreement and we find that the
appellant has not offered any basis for reversal of the initial decision.
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
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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
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.