The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH R. GALLEGOS, DOCKET NUMBER
Appellant, DA-0752-01-0157-C-1
v.
DEPARTMENT OF HEALTH AND DATE: March 24, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Greg T. Rinckey, Esquire, Albany, New York, for the appellant.
James E. Simpson, Washington, D.C., for the agency.
Nelson Cabrera, Rockville, Maryland, 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 compliance initial
decision, which dismissed his petition for enforcement as untimely filed.
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
contains erroneous findings of material fact; 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 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 The agency removed the appellant and under the terms of the parties’
agreement settling the appellant’s subsequent appeal, the agency agreed, in
pertinent part, to substitute the removal with a voluntary resignation, and the
appellant agreed that he would indicate on the associated request for personnel
action that he did so effective September 29, 2000, because he was “unable for
personal reasons to relocate to San Antonio, Texas.” Gallegos v. Department of
Health & Human Services, MSPB Docket No. DA-0752-01-0157-I-1, Initial
Appeal File, Tab 14. The initial decision dismissed the appeal as settled and
informed the parties that it would become the Board’s final decision in that
appeal unless a petition for review was filed with the Clerk of the Board on or
before April 27, 2001. Gallegos v. Department of Health & Human Services,
MSPB Docket No. DA-0752-01-0157-I-1, Initial Decision (Mar. 23, 2001).
Because neither party did so, the initial decision became the Board’s final
decision in this matter. See 5 C.F.R. § 1201.113.
¶3 The appellant filed a December 2014 petition for review of the March 2001
initial decision but, after receiving proper notice, he failed to file the requisite
3
sworn motion regarding the timeliness of his petition for review, see 5 C.F.R.
§ 1201.114(g), and the Board consequently dismissed his petition for review as
untimely filed without good cause shown for the delay, Gallegos v. Department of
Health & Human Services, MSPB Docket No. DA-0752-01-0157-I-1, Final Order
(Mar. 13, 2015). The Board found the appellant’s petition for review was filed
more than 13 years late and noted that, even if the appellant had properly
responded to the Clerk of the Board’s instructions to file a sworn motion, the
evidence he proffered concerned a reassignment effected more than 2 years prior
to the events that resulted in the settlement agreement at issue and therefore
did not indicate that the agency fraudulently induced him to sign the parties’
March 2001 settlement agreement. Id. at 3 n.2.
¶4 Two months after the Board dismissed his petition for review as untimely
filed without good cause shown, the appellant filed the instant petition for
enforcement. Compliance File (CF), Tab 1. The appellant essentially argued that
the designation “RESIGNATION – ILIA” (in lieu of involuntary action) on the
Standard Form 50 (SF-50) form memorializing the personnel action violated the
parties’ settlement agreement because it indicated that his resignation was
involuntary rather than voluntary. 2 Id. at 9. The administrative judge informed
the appellant, in pertinent part, of his burden of proof on the issue of timeliness
and ordered him to file evidence and argument showing that his petition was
timely filed or that good cause existed for the delay. CF, Tab 2 at 2-3. In his
response, the appellant argued that the agency fraudulently induced him to sign
the agreement and violated the required covenant of good faith. CF, Tab 9 at 3.
2
The appellant also asserted nonselection claims under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301‑4333) and the Veterans Employment Opportunities Act of 1998. CF, Tab 1
at 10-11. The administrative judge noted the docketing of a separate appeal concerning
the appellant’s nonselection claims, Gallegos v. Department of Health & Human
Services, MSPB Docket No. DA-4324-15-0444-I-1. CF, Tab 5 at 2 n.2.
4
As for the timeliness of his petition for enforcement, the appellant only asserted
that because fraud was involved, “timeliness is tolled.” Id.
¶5 After holding a status conference, the administrative judge again ordered
the appellant to address the timeliness of his petition for enforcement, specifically
requiring him to state whether the agency provided him a copy of the SF-50
involved in the parties’ settlement for inspection as required by the settlement
agreement, see CF, Tab 9 at 5, and if so, when, and to identify the exact date on
which he learned of the agency acts of noncompliance with the settlement
agreement, CF, Tab 15 at 3-4. In response, the appellant asserted that he “learned
Resignation – ILIA meant Involuntary Separation in approximately October to
November 2014.” CF, Tab 16 at 4. The appellant explained that in
October 2014, he “had a suspicion” that the agency breached the settlement
agreement, but because he had lost his copy of the settlement agreement years
ago, he had to make a March 17, 2015 Freedom of Information Act request to
obtain a copy. CF, Tab 24 at 5. He did not specify whether he received a copy of
the SF-50 form for inspection as provided under the terms of the parties’
agreement. CF, Tab 9 at 5.
¶6 On the written record, the administrative judge found that the appellant
failed to establish that his petition for enforcement was timely filed. CF, Tab 33,
Compliance Initial Decision (CID) at 6-8. The administrative judge found it
undisputed that the appellant received a copy of the SF-50 form designated
“RESIGNATION – ILIA” at least 15 years ago, and she found the appellant’s
petition for enforcement untimely on that basis. CID at 7. The administrative
judge also noted that the appellant did not assert that he failed to receive a copy
of the settlement agreement when it was executed or that he failed to receive a
copy of the SF-50 form for inspection as required by the settlement agreement.
Id.; see CF, Tab 6 at 5. Nevertheless, crediting the appellant’s assertion that he
discovered the agency’s alleged breach of the parties’ settlement agreement in
October or November 2014, she found that the appellant’s petition for
5
enforcement nevertheless was untimely because he still waited over 6 months,
i.e., until June 15, 2015, to file it. 3 CID at 7‑8.
¶7 In his petition for review, the appellant argues that his petition for
enforcement was timely filed because he acted reasonably and with due diligence
under the circumstances. Petition for Review (PFR) File, Tab 1 at 10-14. He
contends that because the agency did not provide him with notice of its
compliance, his petition for enforcement is presumed timely and it is the agency’s
burden to establish otherwise. Id. at 13 (citing Kasarsky v. Merit Systems
Protection Board, 296 F.3d 1331, 1335 (Fed. Cir. 2002)). However, if a petition
for enforcement is untimely on its face, then the appellant bears the burden to
show facts establishing why the petition is not untimely. Kasarsky, 296 F.3d
at 1335.
¶8 The appellant is correct that his knowledge of the alleged breach is the
triggering event in determining whether a petition for enforcement is timely filed.
E.g., Poett v. Merit Systems Protection Board, 360 F.3d 1377, 1381 (Fed. Cir.
2004). He argues that he did not have actual knowledge of the agency’s
purported breach until April 2015. PFR File, Tab 1 at 13. However, as the
following discussion indicates, the record in this matter instead shows that the
appellant had such knowledge of the agency’s alleged breach soon after the
execution of the settlement agreement. In that regard, the agreement required the
agency to provide the appellant with a copy of the revised SF-50 form and
required him to “notify the agency of any concerns within 15-days of receipt of
the form.” CF, Tab 9 at 5. The administrative judge ordered the appellant to
3
Although the appellant submitted his petition for review of the initial decision that
dismissed his appeal as settled on December 16, 2014, the administrative judge
observed that the appellant did not raise any allegations in that action regarding the
SF‑50 form memorializing his resignation despite the fact that he included the
document with his petition for review. CID at 7-8. Thus, we agree with the
administrative judge that there is no reason to accept the appellant’s petition for
enforcement as timely filed based on that filing date.
6
address whether the agency provided him a copy of the SF-50 involved in the
parties’ settlement for inspection, CF, Tab 15 at 4, but the appellant failed to
respond. Nevertheless, based on the appellant’s own assertion that he had been
using it for 15 years, the administrative judge found it undisputed that the
appellant had the SF-50 in his possession 15 years ago, CID at 7; see CF, Tab 18
at 3, Tab 10 at 4, and the appellant does not challenge that finding on review.
Similarly, the appellant has never claimed that he did not receive a copy of the
settlement agreement when the parties executed it. CID at 7. Instead, as noted
above, the appellant claimed that he lost his copy of the settlement agreement,
requiring him to make a March 2015 request to get a new one, and that only after
comparing that copy of the settlement agreement to the SF-50 did he learn of the
alleged breach. CF, Tab 24 at 5.
¶9 To establish good cause for the untimely filing of an appeal, a party must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
180, 184 (1980). We find the appellant’s failure to maintain a copy of the
parties’ settlement agreement, as well as his apparent failure to compare the
SF‑50 with the settlement agreement at the time he received the documents to be
less than diligent. Moreover, given our finding that the appellant, who was
represented by an attorney in the appeal that produced the settlement agreement,
had all the documents in his possession at the time of the alleged breach in 2001,
we agree with the administrative judge that the appellant failed to show due
diligence or ordinary prudence under the circumstances or that he had good cause
for the untimely filing of his 2015 petition for enforcement.
7
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:
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 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
8
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.