The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH M. DROZE, DOCKET NUMBERS
Appellant, SE-0752-01-0205-C-1
SE-0752-01-0205-I-1
v.
DEPARTMENT OF THE NAVY,
Agency. DATE: May 10, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth M. Droze, Saipan, MP, pro se.
James C. Brent, Esquire, and Teesha R. Huggins, FPO/AP, 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 in MSPB Docket No. SE-0752-01-0205-C-1 (compliance appeal), which
denied his petition for enforcement of a settlement agreement. As discussed
below, we deem his petition for review also to constitute a petition for review of
the initial decision in MSPB Docket No. SE-0752-01-0205-I-1 (merits appeal),
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
which dismissed his appeal as settled. 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 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 matter, we JOIN the merits appeal and the compliance appeal under 5 C.F.R.
§ 1201.36(b). We find that the petitioner has not established any basis under
section 1201.115 for granting the petition for review with respect to either appeal.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶2 Effective March 26, 2001, the agency removed the appellant from his
GS-9 Computer Specialist position in Japan based on his failure to exercise his
return rights following a lengthy absence for medical reasons. Initial Appeal File
(IAF), Tab 7, Subtabs 4A-4B, 4F. He filed an appeal of his removal, and, while
his appeal was pending, he and the agency reached a settlement agreement that
called for the dismissal of the appeal. IAF, Tab 14. The administrative judge
entered the agreement into the record for enforcement purposes and dismissed the
appeal. IAF, Tab 15, Initial Decision (ID) at 1-2. The initial decision became the
Board’s final decision on July 17, 2001, when neither party petitioned for review
of the decision. ID at 3.
¶3 On January 21, 2015, the appellant filed a petition for enforcement in which
he contended that the agency breached the agreement by, inter alia, failing to
afford him status under the applicable status of forces agreement (SOFA) and
failing to include him in a medical screening program. Compliance File (CF),
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Tab 1 at 2-3. He further contended that he entered into the agreement under
duress because he had lost his Government housing and was suffering from an
unidentified illness. Id. at 2. After affording the parties appropriate notice of the
burdens and elements of proof in a compliance case, providing them with the
opportunity to submit evidence and argument in support of their respective
positions, and considering the parties’ submissions, the administrative judge
denied the petition for enforcement upon finding that the appellant did not prove
that the agency breached the settlement agreement. CF, Tab 15, Compliance
Initial Decision (CID) at 5-8. Because the appellant also argued that the
settlement agreement was invalid, the administrative judge informed him that he
could challenge the validity of the agreement only if he filed a petition for review
of the initial decision dismissing his removal appeal as settled. CID at 7. The
administrative judge did not address the timeliness issue raised by the appellant’s
14-year delay in seeking enforcement.
¶4 The appellant has filed a petition in which he continues to raise issues of
alleged breach and claims again that the settlement agreement is invalid. Because
the petition for review was not clear, the Clerk of the Board issued a show cause
order asking whether the appellant was petitioning for review of the initial
decision or the compliance initial decision or both. Petition for Review (PFR)
File, Tab 4. The appellant responded that he wished to pursue both avenues if
necessary, but he wanted the Board to consider his breach claim and then, if the
Board’s decision was not favorable to him, he wanted to challenge the validity of
the agreement. PFR File, Tab 6. However, because an invalid contract is not
subject to enforcement, the Board must consider the validity issue first. To
preserve the appellant’s right to challenge both the validity of the agreement and
the alleged breach of the agreement, we deem the instant petition for review to be
a petition for review in both the merits case and the compliance case.
4
The settlement agreement is valid.
¶5 An attack on the validity of a settlement agreement must be made in the
form of a petition for review of the initial decision dismissing the appeal as
settled. Weldon v. Department of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013).
When a petition for enforcement unmistakably challenges the validity of the
agreement, the Board will treat it as a petition for review of the initial decision
dismissing the appeal as settled. Miller v. Department of the Army, 112 M.S.P.R.
689, ¶ 12 (2009). An appellant may challenge the validity of a settlement
agreement if he believes it was unlawful, involuntary, or the result of fraud,
coercion, misrepresentation, or mutual mistake. See Weldon, 119 M.S.P.R. 478,
¶ 5; Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 6 (2010); Keith v.
U.S. Postal Service, 56 M.S.P.R. 668, 669-70 (1993). Even if the invalidity is not
apparent at the time of settlement, the settlement agreement must be set aside if it
is subsequently shown by preponderant evidence that the agreement is invalid.
Wofford, 115 M.S.P.R. 468, ¶ 6. However, once an appellant discovers evidence
that he claims establishes a valid reason to set aside the agreement, he must act
with due diligence to file a petition for review with the Board or his petition for
review will be dismissed as untimely filed. See Armstrong v. Department of the
Treasury, 115 M.S.P.R. 1, ¶ 5 (2010), aff’d, 438 F. App’x 903 (Fed. Cir. 2011).
¶6 The appellant makes multiple arguments that could be construed as
challenges to the validity of the settlement agreement. First, he appears to
contend that the agreement is invalid because it was illegal. Because the
appellant was a Federal employee prior to the removal action underlying the
settled appeal, he was in Japan on an official passport. He asserts that, under the
SOFA, once he was removed, he could only remain in Japan on a visitor’s visa.
He alleges that the agency violated the SOFA by issuing a Standard Form 50 (SF-
50) retroactively placing him in a leave without pay (LWOP) status while he was
5
on a visitor’s visa when it could only do so lawfully by reinstating his official
passport. 2
¶7 According to the applicable SOFA, when a civilian employee loses his
official status, “the United States authorities shall notify the Japanese authorities
and shall, if such person be required by the Japanese authorities to leave Japan,
assure that transportation from Japan will be provided within a reasonable time at
no cost to the Government of Japan.” CF, Tab 11 at 16 (Article IX, ¶ 5). The
SOFA contains no provisions addressing when former employees of the agency
must leave Japan if not required to do so by the Japanese Government, and no
provision setting forth whether, when, or how the agency must change a former
employee’s immigration status or revoke a former employee’s official passport.
The appellant has not alleged that he was “required by the Japanese authorities to
leave Japan.” Therefore, because the actions that the appellant challenges do not
appear on their face to be governed by the SOFA, we find that he has not shown
that the settlement agreement is invalid on the basis of illegality.
¶8 The appellant also seems to allege that he was not competent to enter into a
settlement agreement because of an unspecified psychiatric illness. PFR File,
Tab 6 at 8. While the appellant indeed may have been ill when he signed the
settlement agreement, he has not submitted any medical evidence showing that he
was mentally impaired at the time of the settlement agreement on June 8, 2001, or
that he was unable either to fully understand the nature of the settlement
agreement or to assist his representative regarding his appeal. See Moran v.
Veterans Administration, 43 M.S.P.R. 547, 552, aff’d, 923 F.2d 869 (Fed. Cir.
2
The appellant further contends that the SOFA prohibits the agency from allowing
nonemployee civilians from entering its facilities and the agency violated the SOFA
when it allowed him to enter its facility to sign the settlement agreement. This
argument does not relate to either the validity of the settlement agreement or the alleged
noncompliance with the settlement agreement, and thus it is not within the Board’s
purview.
6
1990) (Table). Thus, there is no basis for finding that the settlement agreement
was rendered invalid because of his medical condition.
¶9 The appellant also contends that he entered into the agreement under duress
because at the time of settlement he was present in Japan on a visitor’s visa. To
establish that a settlement agreement is invalid due to coercion or duress, a party
must prove that he involuntarily accepted the other party’s terms, that
circumstances permitted no alternative, and that such circumstances were the
result of the other party’s coercive acts. Mullins v. Department of the Air
Force, 79 M.S.P.R. 206, ¶ 7 (1998). The appellant has not shown how his
immigration status was either the result of wrongful actions committed by the
agency or was the source of any duress. Aside from his bare contention that he
entered into the agreement under duress because of his immigration status, he has
not alleged or proffered any evidence showing that he involuntarily accepted the
agency’s terms or that the circumstances permitted no alternative.
¶10 We find, therefore, that the appellant has failed to prove that the settlement
agreement was invalid. In light of our finding, we do not address the apparent
14-year untimeliness of the petition for review.
The agency is in compliance with the settlement agreement.
¶11 A settlement agreement is a contract and, as such, will be enforced in
accordance with contract law. Burke v. Department of Veterans
Affairs, 121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement
agreement that has been entered into the record in the same manner as a final
Board decision or order. Id. When the appellant alleges noncompliance with a
settlement agreement, the agency must produce relevant material evidence of its
compliance with the agreement or show that there was good cause for
noncompliance. Id. The ultimate burden, however, is on the appellant to prove
breach by preponderant evidence. Id.
¶12 The appellant contends that failing to reinstate his official status under the
SOFA during the grant of retroactive LWOP (as discussed above) led to the
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agency’s issuance of a fictitious SF-50 placing him on retroactive LWOP (as
discussed above) and that the issuance of the SF-50 under the circumstances
constitutes a breach of ¶ 8 of the agreement. In construing the terms of a
settlement agreement, the words are of paramount importance. Flores v. U.S.
Postal Service, 115 M.S.P.R. 189, ¶ 10 (2010). The Board has no authority to
unilaterally modify the terms of the parties’ agreement or to read a nonexistent
term into an agreement that is unambiguous. Id. When an agreement’s words and
meaning are unambiguous, its terms are not subject to variation. Id.
¶13 Paragraph 8 of the settlement agreement provides, “The appellant hereby
requests and is granted leave without pay for the period from the date of the
initial removal action (March 26, 2001) to the effective date of this Agreement.”
IAF, Tab 14 at 3. Rather than constituting a breach of the agreement, the
agency’s grant of retroactive LWOP is exactly what the appellant bargained for.
The agency made no promises relating to the appellant’s immigration status in ¶ 8
or in any other provision of the settlement agreement.
¶14 The appellant further alleges that the agency violated the agreement by
failing to include him in a medical screening program for employees at his duty
station. There are several settlement provisions that relate to the appellant’s
medical condition. In ¶ 5.a., the agency agreed to change the basis for the
appellant’s removal to “medical inability to perform his duties.” IAF, Tab 14 at
2. Paragraph 5.b. obligated the agency to reimburse the appellant for
out-of-pocket medical expenses in the amount of $225. Id. The agency further
agreed in ¶ 5.c. not to interfere with or delay any application for “retirement or
disability” that the appellant may choose to file. Id. Finally the provision in
¶ 6.f. stating that the agreement did not limit the appellant’s right to file an Office
of Workers’ Compensation Program claim or apply for disability retirement
similarly does not require the agency to include the appellant in a screening
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program. We agree with the administrative judge that the appellant failed to
prove that the agency violated the settlement agreement. 3
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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 U.S. 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
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.
3
The appellant raised several additional allegations of breach before the administrative
judge that he has not pursued on review. The administrative judge’s finding that the
appellant failed to prove those allegations of breach is correct, and we see no reason to
revisit it.
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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 U.S. 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.