Mitch Wine v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MITCH WINE, DOCKET NUMBER

Appellant, DA-0752-18-0116-X-1

v.

DEPARTMENT OF THE INTERIOR, DATE: February 10, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mitch Wine, Mountain View, Arkansas, pro se.

Lindsey Gotkin, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 In a February 20, 2019 compliance initial decision, the administrative judge

found the agency in noncompliance with the April 30, 2018 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 no t

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

dismissing the appellant’s removal appeal as settled. 2 Wine v. Department of the

Interior, MSPB Docket No. DA-0752-18-0116-C-1, Compliance File (CF), Tab

19, Compliance Initial Decision (CID); Wine v. Department of the Interior, MSPB

Docket No. DA-0752-18-0116-I-1, Tab 56, Initial Decision (ID). For the reasons

discussed below, we find the agency in compliance and DISMISS the petition for

enforcement.

BACKGROUND

¶2 On April 30, 2018, the administrative judge issued an initial decision

dismissing the appellant’s removal appeal on the basis of a settlement agreement

submitted by the parties. ID at 1-2. As explained below, neither party filed a

timely petition for review, and thus the initial decision became the final decision

of the Board with respect to the appellant’s removal and the entry of the

settlement agreement into the record for future enforcement.

¶3 The settlement agreement provided, in relevant part, that the agency would

withdraw its original termination memorandum (which removed the appellant for

misconduct) and replace it with a memorandum terminating the appellant for

inability to perform the essential functions of his position . The agency was

further required to restore the appellant’s pay and leave balances from the date of

his original termination until the date his terminat ion for medical reasons became

effective. See CID at 4-6. The appellant was required to “unequivocally accept

his termination for medical reasons” and waive any appeal, grievance, or other

right he might have to contest the termination for medical reason s. See CID

2

On November 26, 2021—more than 3 years after issuance of the initial decision, and

more than 2 years after issuance of the compliance initial decision underlying the

instant compliance referral matter—the appellant petitioned for review of the initial

decision. On February 10, 2023, the Board dismissed his petition for review as

untimely filed without good cause for the delay. Wine v. Department of the Interior,

MSPB Docket No. DA-0752-18-0116-I-1, Final Order (Feb. 10, 2023). Thus, the

operative decision regarding the parties’ settlement obligations remains the April 30,

2018 initial decision dismissing the removal appeal as settled.

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at 4-5. Finally, the settlement agreement contained the following language

relevant to this petition for enforcement:

The Agency and the Appellant agree to cooperate with each other

when/if the Appellant applies for disability retirement. The Agency

specifically agrees to supply a Form 3112B (Supervisor’s Statement)

that will express the Agency’s belief that the Appellant is not able to

perform the essential functions of his position due to his medical

condition, that it has attempted to accommodate him but cannot do

more than it has already done due to his medical condition, and that

it has no ability to transfer him to another suitable position due to his

medical condition. The Appellant acknowledges that the Agency is

not guaranteeing he will be deemed eligible for disability retirement,

as that decision is not the Agency’s decision to make.

See CID at 6.

¶4 On September 19, 2018, the appellant filed this petition for enforcement, 3

primarily alleging that the agency had failed to pay him severance pay and that

the revised termination memorandum improperly stated that his removal for

medical inability to perform was taken for the efficiency of the service. See CID

at 7-10.

¶5 On February 20, 2019, the administrative judge issued a compliance initial

decision finding the agency partially noncompliant with the settlement agreement.

The administrative judge rejected the appellant’s claim to severance pay, finding

that the settlement agreement did not require such payment. CID at 10. The

administrative judge further rejected the appellant’s claim that the agency

3

On March 26, 2019, the appellant filed a second petition for enforcement, which the

administrative judge dismissed in part and denied in part. Wine v. Department of the

Interior, MSPB Docket No. DA-0752-18-0116-C-2, Compliance File, Tab 1, Tab 28,

Compliance Initial Decision. On July 1, 2019, the appellant filed a third petition for

enforcement, which the administrative judge dismissed. Wine v. Department of the

Interior, MSPB Docket No. DA-0752-18-0116-C-3, Compliance File, Tab 1, Tab 13,

Compliance Initial Decision. Neither party petitioned for review in either case, and

neither is before us in the present matter. The appellant has three other cases pending

on petition for review that likewise are not before us in the present matter. See Wine v.

Department of the Interior, MSPB Docket No. DA-1221-16-0513-W-2; Wine v.

Department of Veterans Affairs, MSPB Docket No. DA-1221-21-0342-W-1; Wine v.

Department of the Interior, MSPB Docket No. DA-4324-21-0377-I-1.

4

violated the settlement agreement through its language in the revised termination

memorandum, noting that the Board has held that removal for medical inability to

perform the essential functions of one’s position promotes the efficiency of the

service. CID at 10-11.

¶6 However, the administrative judge found that the agency failed to establish

that it fully complied with the cooperation provision set forth above. The

administrative judge faulted the agency’s cooperation with the appellant’s

disability retirement application in two respects. First, although the appellant had

submitted a disability retirement application to the agency for transmission to the

Office of Personnel Management (OPM) on his behalf, the agency had lost the

documentation and was unable to confirm that it had transmitted the entire

application to OPM. CID at 11-12. The administrative judge found that the

agency’s handling of the application was “careless and negligent” but not

bad-faith noncompliance. CID at 16-17. Second, the administrative judge found

that the copy of the Standard Form 3112B (SF-3112B), Supervisor’s Statement,

that the agency located (apparently as part of the materials the agency had

prepared to submit to OPM with the appellant’s lost disability retirement

application) used language incompatible with the cooperation provision of the

settlement agreement. The administrative judge expl ained that the SF-3112B

contained references to the appellant’s “unsatisfactory conduct” and that this was

at odds with the agreement that the agency provide an SF-3112B that would

“express the Agency’s belief that the Appellant is not able to perform the

essential functions of his position due to his medical condition, that it has

attempted to accommodate him but cannot do more than it has already done due

to his medical condition, and that it has no ability to transfer him to another

suitable position due to his medical condition.” CID at 15. The administrative

judge found that the language used by the agency breached the settlement

agreement, but she did not address whether the breach was material . CID at 16.

5

¶7 The administrative judge ordered the agency to provide the appellant the

following: a revised SF-3112B eliminating the information that contravened the

cooperation provision; a SF-3112D (Agency Certification of Reassignment and

Accommodation Efforts) “completed in accordance with the information s et out

in the parties’ settlement agreement”; and a completed copy of SF -3112E

(agency-completed Disability Retirement Application Checklist). CID at 18 -19.

The administrative judge further instructed the appellant to inform the agency

whether he wished to submit his disability retirement application directly, or

resubmit it to the agency for transmittal to OPM on his behalf. CID at 17 -18.

Finally, the administrative judge directed the parties to work to complete the

application and send it to OPM “without further delay,” and advised the appellant

of the relevant deadline and how to meet it, regardless of whether he submitted

his application directly or through the agency and regardless of whether he

received completed copies of the forms from the agency. CID at 18 & n.13.

¶8 In the compliance initial decision, the administrative judge informed the

agency that, if it decided to take the actions required by the decision, it must

submit to the Office of the Clerk of the Board, within the time limit for filing a

petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the

actions identified in the compliance initial decision, along with evidence

establishing that it had taken those actions. CID at 19-20; 5 C.F.R.

§ 1201.183(a)(6)(i). She also informed the parties of their option to request

Board review of the compliance initial decision by filing a petition for review by

March 27, 2019, the date on which the findings of noncompliance would become

final unless a petition for review was filed. CID at 20; see 5 C.F.R.

§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party filed a petition

for review of the compliance initial decision with the Board.

¶9 The agency timely filed a statement that it had taken the actions identified

in the compliance initial decision, and the appellant’s petition for enforcement

accordingly was referred to the Board for a final decision on issues of

6

compliance. Wine v. Department of Interior, MSPB Docket No. DA-0752-18-

0116-X-1, Compliance Referral File (CRF), Tab 2. The parties subsequently filed

multiple pleadings contesting, among other things, the agency’s obligations, the

scope of the compliance initial decision and its relation to the appellant’s other

MSPB and non-MSPB litigation, and the outcome of the appellant’s disability

retirement application. As explained below, we find that the agency cured any

material breach of the settlement agreement and that, under the circumstances, the

appellant is not entitled to rescission of the settlement agreement.

ANALYSIS

¶10 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 set tlement

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, remains with the appellant to prove breach by a

preponderance of the evidence. Id.

¶11 Over the course of the compliance referral litigation, the agency submitted

an evolving series of pleadings, supported by documentation, noting that it had

completed the three forms as ordered by the compliance initial decision; that it

had submitted the appellant’s completed disability retirement application to OPM

on April 26 and 29, 2019, before his 1-year filing deadline expired; that it had

attempted to further the success of the appellant’s disability retirement

application by informing him that OPM wanted him to submit a SF-3107, but the

appellant refused to cooperate; and that OPM had approved the appellant’s

disability retirement application and the appellant was receiving interim benefits

7

until OPM could finalize his benefits determination. CRF, Tab 1 at 5, Tab 8 at

4,6,10, Tab 13 at 8-14, Tab 19 at 9-13, 16, 21.

¶12 The appellant countered these submissions with claims that the settlement

agreement was invalid or unlawful; that the agency unlawfully accessed his

medical records to remove him from his job; that the administrative judge should

have awarded him interim relief to remedy delays in processing his disability

retirement application caused by the agency’s actions; that the agency did not

cooperate in submitting his disability retirement application, as ordered by the

administrative judge; that the agency lied about its communications with OPM

and transmitted information to OPM that would doom his disability retirement

application; and that OPM’s eventual grant of benefits was for a shorter time

frame than expected “as a result of the Agency’s ‘careless’ and ‘negligent’ breach

of the settlement agreement.” CRF, Tab 6 at 5-6, Tab 7 at 4-5, Tab 9 at 5-6, Tab

16 at 4, Tab 24 at 5. The appellant also made various claims related to his 2016

workers compensation litigation, argued that he was entitled to consequential or

compensatory damages, and moved for sanctions against the agency. CRF, Tab 7

at 4-5, 7, Tab 18 at 4-5. Finally, in response to the Board’s request that he clarify

the relief he sought if he prevailed, he stated that he wished to rescind the

settlement agreement and reinstate his removal appeal because the agency did not

timely submit his disability retirement application to OPM. CRF, Tab 11, Tab 12

at 4-5.

¶13 Having carefully considered both parties’ submissions, we find that the

agency has fully complied with its obligations under the settlement agreement and

with the instructions in the compliance initial decision. The appellant has not

submitted evidence supporting his arguments that the agency failed to cooperate

with him, lied to OPM, or otherwise impeded the timely submission and

processing of his disability retirement application. By contrast, the agency

submitted evidence that it revised the documents in accordance with the

administrative judge’s instructions and submitted the appellant’s disability

8

retirement application to OPM despite the appellant’s lack of cooperation and

abusive language and behavior toward agency counsel. CRF, Tab 1 at 5, Tab 19

at 9-13. The agency also provided evidence that OPM approved the application.

CRF, Tab 19 at 16, 21. Although the appellant variously insists that the

application was untimely filed or that the benefits awarded were for a shor ter time

frame than expected due to the agency’s original failure to submit his application,

he has not provided anything to substantiate these claims. Moreover, the

settlement agreement expressly disclaimed any guarantee by the agency that the

appellant would be deemed eligible for disability retirement. See CID at 6. It

follows, therefore, that the settlement agreement did not guarantee that the

appellant would receive a certain amount in benefits or that the benefits would

flow from a certain date. The appellant has not pointed to any specific error in

the agency’s portion of the application forms that could have impacted the

starting date or amount of his benefits. Indeed, as the agency pointed out, the

appellant himself refused to submit an updated version of the SF-3107 as

requested by OPM, and it is not clear what effect, if any, such refusal may have

had on his application. Accordingly, we find that the agency has complied with

its obligations.

¶14 Although the appellant seeks to rescind the settlement agreement and

reinstate his removal appeal due to the original breach of the agreement, we hold

that such relief is inappropriate where, as here, the agency has cured the breach

and the appellant has received the full benefit of his bargain. See Tretchick v.

Department of Transportation, 109 F.3d 749, 752 (Fed. Cir. 1997) (rejecting

suggestion that there is an “absolute right” to rescission in response to a breach

and rejecting rescission where any purported breach had been cured) ; King v.

Department of the Navy, No. 98-3342, 1999 WL 37406, at *2 (Fed. Cir. Jan. 12,

9

1999) (unpublished) 4 (affirming denial of rescission where the agency had cured

its breach of the settlement agreement 6 years later, and the appellant provided no

evidence that she was harmed by the breach or the delay in curing it); cf. Lutz v.

U.S. Postal Service, 485 F.3d 1377, 1381-82 (Fed. Cir. 2007) (finding material

breach potentially justifying rescission where “negative statements contained in”

the agency forms “prejudiced the disability proceedings” and resulted in denial of

benefits). Thus, assuming arguendo that the agency’s breach was materia l—

which the administrative judge did not address, and we need not now decide —we

find that, as in Tretchick, rescission is inappropriate because the agency cured its

breach of the agreement and the appellant received all the benefits to which the

agreement entitled him. Although it is conceivable that the appellant might have

received his disability retirement benefits sooner if the agency had not lost his

original application, the settlement agreement did not require that the agency act

within a particular time frame. It merely required that the agency cooperate with

the appellant “when/if” the appellant applied for disability retirement , which the

agency ultimately did, such that the application was granted . This is in contrast

to the situation in Lutz, 485 F.3d at 1381-82. It is also distinguishable from Lary

v. U.S. Postal Service, 472 F.3d 1363 (Fed. Cir. 2006), clarified on denial of

rehearing, 493 F.3d 1355 (Fed. Cir. 2007), in which the agency’s failure to

provide necessary documents within the specific time frame set by the settl ement

agreement caused the appellant’s disability retirement application to be denied as

untimely filed. That is not the case here, where the agency ultimately managed to

timely file the application on the appellant’s behalf. Moreover, the appellant

based his rescission request on his erroneous belief that the agency did not timely

submit his application to OPM. CRF, Tab 12 at 4-5. If the appellant believes

OPM’s annuity calculation is incorrect as to the substance or the starting date of

4

The Board may follow a nonprecedential decision of a court when it finds its

reasoning persuasive, as we do here. Edwards v. Department of Labor, 2022 MSPB 9,

¶ 16 n.6.

10

the benefits, he separately may challenge OPM’s decision in accordance with the

documentation provided to him by OPM with regard to his appeal rights. 5

¶15 We deny the appellant’s various other claims as outside the scope of this

proceeding. His claim that the agency illegally accessed his medical records was

denied in his second compliance proceeding, Wine v. Department of the Interior,

MSPB Docket No. DA-0752-18-0116-C-2, Compliance File, Tab 28, Compliance

Initial Decision at 4-6, and the appellant did not seek further review of that

decision. His claims regarding whistleblower reprisal and violations of the

Uniformed Services Employment and Reemployment Rights Act of 1994

(codified as amended at 38 U.S.C. §§ 4301-4335) are before the Board in three

separate appeals, as explained above, supra ¶ 4 n.3, and are not part of this case.

His attempts to relitigate another forum’s denial of his workers compensation

benefits likewise are not properly before us and are not relevant to this case. In

light of the disposition reached in this decision, we deny the various motions to

strike, for sanctions, for transfer of this matter to a United States district court,

and other forms of relief sought by the parties. 6

¶16 Having found the agency in compliance, we dismiss the petition for

enforcement. This is the final decision of the Merit Systems Protection Boar d in

this compliance proceeding. Title 5 of the Code of Federal Regulations, section

1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

5

We express no opinion on whether any such challenge would be timely.

6

We deny the appellant’s request that Member Leavitt recuse himself on the basis of

having “sabotaged” the appellant’s whistleblower claims at the Office of Special

Counsel. See CRF, Tab 21 at 4. Member Leavitt was not employed by the Office of

Special Counsel during the relevant time frame; and even if he had been, the appellant

has offered no specifics regarding the alleged sabotage or other purported conflict of

interest. Although Member Limon has recused himself from this case, his recusal is not

related to the appellant’s claims of conflict or bias.

11

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choice s of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

7

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

12

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar

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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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

13

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.

Contact information for U.S. district courts can be found at the ir respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, t hen you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

14

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

15

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the li nk below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.