The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. SALEM, DOCKET NUMBER
Appellant, SF-0752-15-0081-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 25, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert M. Salem, Janesville, California, pro se.
Kevin D. Cox, Herlong , California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown for the delay. 5 C.F.R. § 1201.114(e), (g).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 Effective October 9, 2014, the agency removed the appellant from his
position as a GS-9 Production Controller for excessive absence without leave
(AWOL) and failure to follow established leave procedures. Initial Appeal File
(IAF), Tab 5 at 9-11. The appellant timely appealed the removal to the Board,
and the parties subsequently reached an agreement to settle the appeal. IAF,
Tabs 1, 13. In the settlement agreement, the appellant agreed to the dismissal
with prejudice of his Board appeal, and the agency agreed, among other things, to
remove the Standard Form 50 showing his removal from his record and to replace
it with one showing that he resigned due to disability retirement. IAF, Tab 13
at 1-2. The administrative judge found that the settlement agreement appeared
lawful on its face, the parties had indicated that they understood the terms of the
agreement, and the agreement was reached freely. IAF, Tab 14, Initial Decision
(ID) at 1. Accordingly, in a March 5, 2015 initial decision, the administrative
judge entered the settlement agreement into the record for purposes of
enforcement by the Board and dismissed the appeal as settled. ID at 1-2. The
administrative judge notified the appellant that the initial decision would become
final on April 9, 2015, unless a petition for review was filed by that date. ID at 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 On August 27, 2015, the appellant wrote to the administrative judge stating
that he had not understood the effect the settlement agreement would have on his
disability retirement benefits and asking the administrative judge to correct the
injustice. Petition for Review (PFR) File, Tab 1 at 1-2. The regional office
forwarded the appellant’s letter to the Office of the Clerk of the Board, which
docketed it as a petition for review of the initial decision dismissing the appeal as
settled. PFR File, Tab 2 at 2. The Clerk of the Board notified the appellant that
his petition for review was untimely filed and explained that he must file a
motion asking the Board to accept the petition for review as timely and/or to
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waive the time limit for good cause. Id. at 1-2. The appellant responded, asking
the Board to excuse his late filing because he did not discover that there had been
no “meeting of the minds” as to the effect of the settlement agreement on his
disability retirement benefits until he received correspondence from the agency
on August 6, 2015. 2 PFR File, Tab 3 at 4-6. He further stated that, upon
receiving the agency’s correspondence, he realized for the first time that the
settlement agreement was invalid and sent a letter to the administrative judge
within 21 days. Id. at 5-6. The agency responded in opposition to the appellant’s
petition for review. PFR File, Tab 4.
¶4 A petition for review must be filed within 35 days after the issuance of the
initial decision or, if the petitioner shows that the initial decision was received
more than 5 days after the date of issuance, within 30 days after the date the
petitioner received the initial decision. 5 C.F.R. § 1201.114(e). The initial
decision was issued on March 5, 2015, and sent to the appellant, who is a
registered e-filer, the same day. ID at 1; IAF, Tab 15. The appellant has not
alleged that he received the initial decision more than 5 days after issuance, PFR
File, Tab 3, and so he had until April 9, 2015, to file a petition for review,
5 C.F.R. § 1201.114(e); ID at 3. The appellant’s letter to the administrative
judge, which we construe as the petition for review, was not mailed until
August 28, 2015. PFR File, Tab 1 at 9. Thus, the appellant’s petition for review
was untimely filed by approximately 4.5 months.
2
Specifically, the appellant asserted that, when he entered into the settlement
agreement, he believed that the agency would remove the absences designated as
AWOL from his record as part of the settlement agreement. PFR File, Tab 3 at 3, 5.
However, in June 2015, he discovered that the agency had not done so and that, as a
result, his disability retirement benefits began on October 8, 2014, instead of May 28,
2013, when he had stopped going to work due to his health problems, and he had not
received service credit for the 1.5-year period he was in AWOL status. Id. at 3-5, 9.
The appellant wrote to the agency suggesting that there had been a “mutual mistake”
regarding the effect of the settlement agreement on his retirement benefits. Id. at 4-5,
19-20. On August 6, 2015, the agency responded, rejecting his suggestion that there
had been a mutual mistake. Id. at 4-5, 21.
4
¶5 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the filing delay. 5 C.F.R. § 1201.114(g).
Discovery of new evidence may establish good cause for the untimely filing of a
petition for review if the appellant shows that the newly discovered evidence was
not readily available before the record closed below and that it is of sufficient
weight to warrant an outcome different from that of the initial decision. Owen v.
U.S. Postal Service, 87 M.S.P.R. 449, ¶ 6 (2000). Where, as here, an appeal has
been dismissed as settled, newly discovered evidence would constitute good cause
for untimely filing a petition for review if the newly discovered evidence
establishes that the settlement agreement was invalid. Id. Nevertheless, newly
discovered evidence may be the basis of a waiver of the time limit only when the
appellant shows that his failure to discover such evidence was not through lack of
diligence. Id. In the instant case, however, we need not determine whether the
appellant’s evidence meets the Board’s criteria for “new” evidence because, as
discussed below, we find that the appellant has failed to show that the evidence is
material to the validity of the settlement agreement, i.e., that it has enough weight
to warrant a finding of invalidity. Id.
¶6 A party seeking to set aside a settlement agreement bears the heavy burden
of showing that it is tainted with invalidity by fraud or mutual mistake. Id., ¶ 7.
Here, the appellant asks the Board to excuse his untimely filing because he did
not have sufficient information to know that the settlement agreement was invalid
until he received the agency’s correspondence on August 6, 2015. PFR File,
Tab 3 at 4-5. Specifically, he contends that the agency’s correspondence
informed him, for the first time, that “[he] did not have the same understanding of
the agreement or the consequences of those terms as [the agency]” and that “[he]
really didn’t understand it when [he] signed it.” Id. at 5. However, it is well
settled that a unilateral mistake is not a basis for finding a settlement agreement
invalid. Pawlowski v. Department of Veterans Affairs, 96 M.S.P.R. 353, ¶ 15
(2004). The appellant has not alleged that the newly discovered evidence
5
establishes that the settlement agreement is tainted with invalidity by fraud or
mutual mistake. PFR File, Tabs 1, 3; see Owen, 87 M.S.P.R. 449, ¶ 7. Thus, he
has not shown good cause for his untimely filed petition for review on the basis
of newly discovered evidence establishing that the settlement agreement was
invalid. See Owen, 87 M.S.P.R. 449, ¶ 6.
¶7 The appellant has not alleged, and we do not discern, any alternate basis for
finding good cause for his untimely filed petition for review. PFR File, Tabs 1, 3.
Accordingly, we dismiss the petition for review as untimely filed without good
cause shown for the delay. This is the final decision of the Merit Systems
Protection Board regarding the timeliness of the petition for review. The initial
decision remains the final decision of the Board regarding the removal appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
6
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.