The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY ZAPATA, DOCKET NUMBER
Appellant, AT-0353-10-0712-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 14, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Randy Zapata, Miami-Gardens, Florida, pro se.
John C. Oldenburg, Esquire, Memphis, Tennessee, 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decision, which dismissed his petition for enforcement as voluntarily withdrawn.
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 or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, 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. We also have considered the
appellant’s petition as a request to reopen his withdrawn petition for enforcement
under 5 C.F.R. § 1201.118, and we DENY his request.
¶2 On December 20, 2010, the appellant entered into a settlement agreement
with the agency to resolve the underlying appeal, in which he alleged that the
agency failed to restore him to duty in his position as an Automation Clerk at
Pembroke Pines, Florida. Zapata v. U.S. Postal Service, MSPB Docket No.
AT-0353-10-0712-I-1, Initial Appeal File (IAF), Tabs 13, 15. He subsequently
challenged the validity of that agreement in a petition for review filed on
August 17, 2011, in which he alleged that the agency fraudulently entered into the
agreement knowing that it could not abide by its terms. Zapata v. U.S. Postal
Service, MSPB Docket No. AT-0353-10-0712-I-1, Final Order at 2 (July 10,
2012). Namely, after the agreement was executed, the Department of Labor
(DOL) contacted the appellant, who was receiving Office of Workers’
Compensation Programs (OWCP) benefits, to discuss transferring him from his
U.S. Postal Service position to a position outside of the U.S. Postal Service with a
loss of wage earning capacity supplement. 2 Id. The appellant alleged that DOL
2
Prior to settling the appeal, the appellant had contacted the OWCP regarding training
assistance that would prepare him to be placed in a different job. IAF, Tab 13 at 6. In
the settlement agreement, the agency promised to contact the OWCP and “attempt
3
attempted to violate his rights under the settlement agreement and that the agency
attorney knowingly defrauded him and failed to negotiate in good faith. Id. In
denying his petition for review, the Board found that the appellant had failed to
put forth any evidence of fraud, noting that he had been informed that the agency
could exercise no control over actions taken by other agencies such as DOL. Id.
¶3 Concurrent to filing the petition for review of the underlying appeal, the
appellant filed the instant petition for enforcement. Compliance File (CF), Tab 1.
He asserted that the agency “offered and entered an agreement on 12/20/2010 and
they are now claiming that they can not do anything about what was agreed. This
constitutes a fraudulent agreement.” Id. at 3. The appellant voluntarily withdrew
the petition for enforcement on October 17, 2011, CF, Tab 5, and the
administrative judge dismissed it for lack of jurisdiction, CF, Tab 6, Compliance
Initial Decision (CID). The finality date was November 21, 2011. CID at 2.
¶4 The appellant filed this petition for review almost 4 years later on
November 17, 2015, requesting that the Board reinstate his petition for
enforcement. Compliance Petition for Review (CPFR) File, Tabs 1, 3.
Ordinarily, an appellant’s withdrawal of an appeal is an act of finality that
removes the appeal from the Board’s jurisdiction. Lincoln v. U.S. Postal
Service, 113 M.S.P.R. 486, ¶ 7 (2010). In the absence of unusual circumstances
such as misinformation or new or material evidence or other extraordinary
circumstances, such as an intervening court or OWCP decision, the Board will not
reinstate an appeal once it has been withdrawn merely because the appellant
wishes to proceed before the Board or to cure an untimely petition for review.
Cason v. Department of the Army, 118 M.S.P.R. 58, ¶ 5 (2012).
¶5 Although his reasons for withdrawing his petition for enforcement are
unclear, the appellant has not alleged that he did so involuntarily. He has not
to . . . speed up” that agency’s review of his request. Id. The appellant acknowledged,
however, that the OWCP was a separate agency and the U.S. Postal Service could not
guarantee a more expeditious response. Id.
4
raised on review a genuine issue of fact as to whether he made a clear,
unequivocal, and decisive act to relinquish his appeal rights. See, e.g., id.
(explaining that a relinquishment of one’s right to appeal to the Board must be
made by clear, unequivocal, and decisive action). The record shows that the
appellant orally requested to withdraw his petition, and the administrative judge
recorded that request 3 and dismissed the appeal. CID at 1. The administrative
judge did not err in dismissing the appeal as withdrawn, and the appellant has not
asserted any basis under 5 C.F.R. § 1201.115 for the Board to grant his petition
for review. We thus deny his petition for review.
¶6 The appellant also has not alleged any unusual circumstances that might
justify reopening his petition for enforcement. Instead, he alleges that the agency
has violated the agreement by not placing him in a job pursuant to the provisions
of his collective bargaining agreement, as he did in the petition for enforcement
that he withdrew, and he enumerated several actions taken by DOL, which are
outside the scope of the settlement agreement. CPFR File, Tab 3 at 4-5; CF,
Tab 1 at 5; IAF, Tab 13 at 6-8. He has added a gloss to his earlier arguments by
alleging that the agency has violated a clause in the U.S. Constitution prohibiting
the impairment of contracts. CPFR File, Tab 3 at 4; see U.S. Const. art. I, § 10,
cl. 1. Nevertheless, he has offered no reason that would support the reopening of
his petition for enforcement, and we thus deny his request.
¶7 The appellant first filed this petition for review with the regional office.
CPFR File, Tab 1. In some circumstances, the Board also has treated a request to
reopen a withdrawn appeal that was filed with the regional office as a new,
late-filed appeal. See, e.g., Lincoln, 113 M.S.P.R. 486, ¶¶ 10-13. Here, the
regional office transferred the appellant’s filing to the Office of the Clerk of the
Board, which acknowledged the filing and asked the appellant to clarify whether
3
However, the compact disc upon which the administrative judge recorded his
withdrawal is damaged beyond use. IAF, Tab 5.
5
it was intended as a petition for review. CPFR File, Tab 2. The appellant
responded by filing an identical copy of his petition for review with the Clerk, as
well as a letter requesting the reopening of his petition for enforcement. CPFR
File, Tab 3 at 9. The appellant thus asked to proceed with a reopening request,
and in any event, we find no compelling reason to forward this request for
redocketing as a new petition for enforcement to be considered in the first
instance by the administrative judge. 4
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).
4
Previously, the appellant filed a number of Board appeals challenging the agency’s
actions and those of the OWCP. See Zapata v. U.S. Postal Service, MSPB Docket No.
AT-0752-15-0355-I-1, Initial Decision (Feb. 10, 2016) (dismissing appeal for failure to
prosecute); Zapata v. Department of Labor, MSPB Docket No. AT-0752-15-0259-I-1,
Initial Decision (Feb. 12, 2015) (dismissing appeal of OWCP decision to reduce his
benefits for lack of jurisdiction); Zapata v. U.S. Postal Service, MSPB Docket No.
AT-0353-15-0250-I-1, Initial Decision (Feb. 12, 2015) (dismissing appeal of OWCP
decision to reduce his benefits for lack of jurisdiction); Zapata v. U.S. Postal Service,
MSPB Docket No. AT-0752-14-0360-I-1, Final Decision (Dec. 23, 2014) (affirming
dismissal for lack of jurisdiction an appeal of a reassignment without loss of pay).
6
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.