Opinion

Robert Requarth v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 15, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT E. REQUARTH, DOCKET NUMBER

Appellant, DA-0752-21-0353-X-1

DEPARTMENT OF THE ARMY, DATE: September 15, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles H. Allenberg, Virginia Beach, Virginia, for the appellant.

Kathy M. Wright, Texarkana, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 This case is before the Board on the appellant’s petition to enforce the

parties’ settlement agreement resolving his underlying appeal. In a May 4, 2022

compliance initial decision, the administrative judge found that the agency had

not fully complied with the agreement because it imposed a debt for unpaid health

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

insurance premiums for coverage that the agency acknowledged had been

terminated. Requarth v. Department of the Army, MSPB Docket No. DA-0752-

21-0353-C-1, Compliance File (CF), Tab 12, Compliance Initial Decision (CID)

at 5. For the reasons discussed below, we now find the agency in compliance and

DISMISS the appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In an October 20, 2021 initial decision, the administrative judge accepted

into the record for enforcement the parties’ settlement agreement disposing of the

underlying dispute. Requarth v. Department of the Army, MSPB Docket

No. DA-0752-21-0353-I-1, Initial Appeal File, Tab 14, Initial Decision (ID). The

initial decision became the final decision of the Board on November 24, 2021,

after neither party petitioned for administrative review. ID at 14.

¶3 On March 11, 2022, the appellant petitioned for enforcement of the

settlement agreement. CF, Tab 1. In the compliance initial decision, the

administrative judge found that the agency had not fully complied with the

agreement because it imposed a debt for unpaid health insurance premiums for

coverage that the agency acknowledged had been terminated. CID at 12. The

administrative judge therefore ordered the agency to “take all actions required to

resolve the incorrect overpayment determination.” Id. Neither party filed any

submission with the Clerk of the Board within the time limit set forth in 5 C.F.R.

§ 1201.114. As such, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative

judge’s findings of noncompliance became final, and the appellant’s petition for

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

compliance. Requarth v. Department of the Army, MSPB Docket No. DA-0752-

21-0353-X-1, Compliance Referral File (CRF), Tab 1.

¶4 In response to the Clerk’s acknowledgment order, see CRF, Tab 1, the

agency responded with evidence that it had resolved its incorrect overpayment

determination. CRF, Tabs 4-5. In his reply, the appellant acknowledged that “it

appears the agency has now attained compliance.” See CRF, Tab 6 at 5.

¶5 The Board has the authority to enforce a settlement agreement which has

been entered into the record in the same manner as any final Board decision or

order. Richardson v. Environmental Protection Agency, 5 M.S.P.R. 248, 250

(1981). Because a settlement agreement is a contract, the Board will adjudicate

an enforcement proceeding relevant to a settlement agreement in accordance with

contract law. See Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir.

1988). Under settled contract law, the party alleging breach of a settlement

agreement has the burden of proving such breach. Kramer v. Department of the

Navy, 46 M.S.P.R. 187, 190 (1990).

¶6 As noted above, the appellant no longer challenges the agency’s compliance

with the settlement agreement. Accordingly, we find the agency in compliance

and DISMISS the petition for enforcement. This is the final decision of the Merit

Systems Protection Board 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)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 2

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 choices 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:

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.

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

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

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 their 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, then 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

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. 3 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