The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TEMPIE M. EVANS, DOCKET NUMBER
Appellant, AT-1221-15-0380-C-1
v.
DEPARTMENT OF VETERANS DATE: March 4, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Raymond Mitchell, Columbia, South Carolina, for the appellant.
Edith W. Lewis, Esquire, Columbia, South Carolina, 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
denied her 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 interpretation of statute or regulation
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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or the erroneous application of the law to the facts of the case; the administrative
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, 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 On August 3, 2015, the appellant filed a petition for enforcement alleging
that the agency had taken no action to implement a settlement agreement entered
into between her and the agency that resolved her previous appeal, and thus, the
agency was not in compliance. Compliance File (CF), Tab 1. In the settlement
agreement the agency agreed to do the following things:
a. Pay Appellant a lump sum of thirty thousand dollars ($30,000)
within thirty calendar days of the parties signing this agreement;
b. Provide Appellant with a letter documenting its rescission of
Appellant’s Scope of Practice suspension that was initiated on or
about May 27, 2014 within thirty calendar days and take no
disciplinary action regarding such suspension;
c. Restore one hundred and twenty hours (120) hours of sick leave
within thirty calendar days of Appellant providing dates and hours of
such leave to Agency Regional Counsel;
d. Restore two hundred and forty (240) hours of annual leave within
thirty calendar days of Appellant providing dates and hours of such
leave to Agency Regional Counsel;
e. Rate Appellant highly satisfactory on her proficiency for the
period March 29, 2014 through March 28, 2015.
Id.
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¶3 The agency filed a response in which it submitted evidence showing that it
had paid the appellant $30,000, and the appellant admitted that she received the
payment. CF, Tab 3, Exhibit (Ex.) 2; CF, Tab 4. Thus, the administrative judge
found the agency in compliance with the lump sum payment as required by the
settlement agreement. CF, Tab 9, Compliance Initial Decision (CID) at 3.
Regarding the rescission letter, the agency submitted a letter from the Medical
Center Director addressed to the appellant advising her that her Scope of Practice
Suspension had been rescinded. CF, Tab 3, Ex. 3. Although the appellant argued
below that the date on the letter is illegible and renders it inadequate to submit to
the Bureau of Drug Control, the administrative judge found the agency in
compliance with the requirements set out in the settlement agreement concerning
the rescission letter. CID at 3-4.
¶4 Regarding the sick and annual leave restoration provisions, the appellant
alleged that the agency had restored 32 hours of annual leave and 16 hours of sick
leave instead of the total leave required by the settlement agreement. CF, Tab 4.
In response, the agency asserted that it had restored “all hours submitted by
Appellant where applicable,” but had not fully restored the amount of hours set
out in the settlement agreement because the appellant did not provide the proper
dates to be restored. The agency asserted that a delay had resulted because it was
necessary to perform a leave audit to determine the actual dates of leave used
before restoring the remaining leave. The agency stated that it was making
diligent efforts to identify and restore the appellant’s leave used since July 9,
2015. CF, Tab 8. Noting that the appellant failed to respond to the agency’s
assertions in this regard, the administrative judge determined that, based on the
explicit terms in the settlement agreement, the agency’s requirement to restore the
appellant’s leave was contingent on the appellant providing information to the
agency of “the dates and hours of such leave.” CF, Tab 1. The administrative
judge found further that the agency is in compliance with the provision to restore
the sick and annual leave hours for dates and hours provided by the appellant for
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leave used, and to the extent the appellant’s leave had not been fully restored, it is
because the appellant has failed to provide the dates and hours as required by the
settlement agreement. CID at 4-5.
¶5 Finally, regarding the appellant’s performance rating, the agency submitted
evidence that it had completed the appellant’s highly satisfactory proficiency
rating on August 4, 2014. CF, Tab 6, Ex. 4. The appellant conceded that this
requirement of the settlement agreement has been completed. Thus, the
administrative judge found that the agency has complied with this provision of
the settlement agreement. Accordingly, because the administrative judge
determined that the agency is in compliance with all provisions of the settlement
agreement, she denied the appellant’s petition for enforcement.
¶6 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Young v. U.S. Postal Service, 113 M.S.P.R. 609, ¶ 10 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. (citing
Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir. 1988)). Where an
appellant files a petition for enforcement of a settlement agreement, the agency
must produce relevant, material, and credible evidence of its compliance with the
agreement. Eagleheart v. U.S. Postal Service, 110 M.S.P.R. 642, ¶ 9 (2009). The
appellant, however, bears the burden of proving by preponderant evidence that
there was a breach of the settlement agreement. Williams v. Department of
Health & Human Services, 114 M.S.P.R. 11, ¶ 6 (2010); Vaughan v. U.S. Postal
Service, 77 M.S.P.R. 541, 546 (1998). Further, the appellant must show not only
that the agency acted in a manner that is inconsistent with a term of the settlement
agreement, but that there was material noncompliance with a settlement term.
Lutz v. U.S. Postal Service, 485 F.3d 1377, 1381 (Fed. Cir. 2007). A breach is
material when it relates to a matter of vital importance or goes to the essence of
the contract. Thomas v. Department of Housing & Urban Development, 124 F.3d
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1439, 1442 (Fed. Cir. 1997); Caston v. Department of the Interior, 108 M.S.P.R.
190, ¶ 17 (2008).
¶7 In construing a contract, one looks first to the terms of the agreement to
determine the intent of the parties at the time they contracted, as evidenced by the
contract itself. Sweet v. U.S. Postal Service, 89 M.S.P.R. 28, ¶ 9 (2001).
Extrinsic evidence of intent should be considered only if the terms of the
agreement are ambiguous; a contract is ambiguous when it is susceptible to
differing, reasonable interpretations. Id.
¶8 Here, the appellant reasserts on review that the date on the letter advising
her that her Scope of Practice Suspension had been rescinded is illegible and
inadequate to submit to the Bureau of Drug Control. Compliance Petition for
Review (CPFR) File, Tab 1. However, as the administrative judge found, the
explicit terms of the settlement agreement required the agency to provide the
appellant with a letter that documented that it had rescinded her Scope of Practice
suspension. The settlement agreement does not provide any specific language for
the rescission letter, nor does it require that the letter be adequate to submit to the
Bureau of Drug Control. While the appellant continues to argue that the letter
is not specific enough, that the date of issuance is not legible, or that she did not
receive the original copy of the letter, we find that the words of the written
settlement agreement, which are of paramount importance, are not reasonably
susceptible to such an interpretation, and thus, are not ambiguous. Thus, we
agree with the administrative judge that the letter provided by the agency fulfills
the requirements set out in the settlement agreement.
¶9 Similarly, the appellant reasserts her claim that the agency did not restore
all of her sick and annual leave within the 30 days set forth in the settlement
agreement. CPFR File, Tab 1. However, under the terms of the settlement
agreement, which are explicit and not ambiguous, the agency agreed to restore the
appellant’s annual and sick leave “within thirty calendar days of Appellant
providing dates and hours of such leave to Agency Regional Counsel.” CF,
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Tab 1. The agency submitted documentation below showing that it is in the
process of complying with the restoration of the leave as set forth in the
agreement, and it asserted that, because the appellant did not provide the correct
dates as required by the terms of the agreement, the restoration of that leave was
delayed because a leave audit was required. CF, Tab 8. The appellant did not
respond to the agency’s assertions below. On review, the appellant admits that
she initially made mistakes on the dates she submitted and she asserts that it is
“unacceptable” that the agency has the leave records and still has not fully
restored her leave. CPFR File, Tab 1. However, the requirement of restoring the
leave within 30 days was explicitly based on the appellant submitting the dates
upon which she used annual and sick leave, and the appellant admits that she
failed to provide an accurate accounting of her leave. Thus, we agree with the
administrative judge that the agency was in compliance with the agreement when
it met the 30-day requirement by providing her leave for the correct days and time
submitted. Accordingly, the appellant has provided no basis upon which to
disturb 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 U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. 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
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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 U.S. 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 U.S. 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 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 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.