The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY P. SPRUILL, DOCKET NUMBERS
Appellant, DA-0752-17-0254-I-1
DA-0752-17-0254-C-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: April 4, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony Rogers, San Antonio, Texas, for the appellant.
Robert C. Burlison, III, Esquire, San Antonio, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision in Spruill v. Department of Veterans Affairs, MSPB Docket
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three-member Board
completed the voting process prior to his March 1, 2023 departure.
2
No. DA-0752-17-0254-C-1 (compliance proceeding), which denied his petition
for enforcement of a settlement agreement. As discussed below, we deem the
appellant’s petition for review also to constitute a petition for review of the initial
decision in Spruill v. Department of Veterans Affairs, MSPB Docket
No. DA-0752-17-0254-I-1 (merits appeal), which dismissed his appeal as settled.
Generally, we grant petitions such as this one only in the following
circumstances: 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. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in these matters, we JOIN the merits appeal and the
compliance proceeding pursuant to 5 C.F.R. § 1201.36. We find that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review in either matter. Therefore, we DENY the petitions for review
and AFFIRM the initial decisions, which are now final. 5 C.F.R. § 1201.113(b).
¶2 Effective February 12, 2017, the agency removed the appellant from his
position as a Housekeeping Aid. Spruill v. Department of Veterans Affairs,
MSPB Docket No. DA-0752-17-0254-I-1, Initial Appeal File (IAF), Tab 10 at 9.
The appellant filed an appeal of his removal. IAF, Tab 1. While his appeal was
pending, the parties reached a settlement agreement. IAF, Tab 21. In pertinent
part, the settlement agreement provided that, “[w]ithin 60 days from the effective
date of this Agreement, the Agency will pay to Employee the amount of
$15,000.” Id. at 7, ¶ 2(b). The opening paragraph of the agreement identified the
appellant, Jeffrey P. Spruill, as “Employee.” Id. at 7. The agreement further
3
provided that “[t]he Employee shall be solely responsible for the payment of
attorney fees and costs, if any, related to prosecution of complaints and other
actions against the Agency,” including his Board appeal. Id. at 7-8, ¶¶ 1(b), 4(e).
The administrative judge entered the agreement into the record for enforcement
purposes and dismissed the appeal. IAF, Tab 22, Initial Decision (ID). The
initial decision became the Board’s final decision on July 10, 2017, when neither
party petitioned for review of the decision. ID at 3.
¶3 On August 27, 2017, the appellant’s representative filed a petition for
enforcement contending that the agency breached the agreement by not depositing
the $15,000 payment into the representative’s checking account or otherwise
confirming the payment with him. Spruill v. Department of Veterans Affairs,
MSPB Docket No. DA-0752-17-0254-C-1, Compliance File (CF), Tab 1 at 5. The
representative stated that he had not been able to contact the appellant to conf irm
whether the appellant had received the settlement payment. Id. During the
compliance proceeding, the representative also argued that the settlement
agreement was void as a result of the agency’s direct communications with the
appellant to facilitate payment to him, instead of going through his designated
representative. CF, Tabs 8-10.
¶4 After affording the parties appropriate notice of the burdens and elemen ts of
proof in a compliance proceeding, providing them with the opportunity to submit
evidence and argument in support of their respective positio ns, and considering
the parties’ submissions, the administrative judge denied the petition for
enforcement, finding that the agency had complied with the terms of the
settlement by paying the appellant $15,000. CF, Tab 11, Compliance Initial
Decision (CID) at 5. The administrative judge informed the appellant that he
could challenge the validity of the agreement by filing a petition for review with
the Board regarding the initial decision dismissing his removal appeal as settled.
CID at 5 n.4.
4
¶5 The appellant, through his representative, has filed a petition for review,
which was originally docketed solely as a petition for review in the compliance
proceeding. Spruill v. Department of Veterans Affairs, MSPB Docket
No. DA-0752-17-0254-C-1, Petition for Review (C-1 PFR) File, Tabs 1-2.
Because the petition raises a claim that the settlement agreement is invalid, the
petition has been docketed and considered also as a petition for review of the
initial decision dismissing the merits appeal as settled. Spruill v. Department of
Veterans Affairs, MSPB Docket No. DA-0752-17-0254-I-1, Petition for Review
(I-1 PFR) File, Tab 1 at 4-8, Tab 2; see, e.g., Hazelton v. Department of Veterans
Affairs, 112 M.S.P.R. 357, ¶¶ 8-9 (2009). In particular, his representative
contends that the agency improperly contacted the appellant without notifying
him and coerced the appellant into signing a vendor form to receive payment of
the settlement amount. I-1 PFR File, Tab 1 at 4-8. He also contends that such
actions were an effort to coerce, threaten, or discriminate against the appellant
because of his disabilities. 3 Id. at 7.
¶6 The Board will only set aside a settlement agreement as invalid u nder very
limited circumstances, including when it is unlawful or was the result of fraud,
coercion, or mutual mistake. See Henson v. Department of the Treasury,
86 M.S.P.R. 221, ¶ 5 (2000). Such grounds for invalidating the agreement pertain
to defects in the settlement agreement itself or to the circumstances present at the
time that the parties signed the agreement. They do not pertain to events
occurring after the agreement was signed, including an agency’s alleged improper
ex parte communication to facilitate a settlement payment. Because the appellant
has not identified anything improper about the settlement agreement itself or the
circumstances under which he entered into it, we deny his petition for review of
3
The appellant has submitted numerous documents with his petition, all of which are
already part of the record and none of which change the outcome of either the merits
appeal or compliance proceeding.
5
the initial decision dismissing the merits appeal as settled. 4 See Peters v. Defense
Commissary Agency, 59 M.S.P.R. 512, 513-14 (1993) (treating allegations that an
agency acted in bad faith based on actions taken after a settlement agreement was
executed as allegations of breach of the agreement, rather than as a basis for
invalidating the agreement).
¶7 We further find no basis to disturb the compliance initial decision, which
denied the appellant’s petition for enforcement. On review, there is no dispute
with the administrative judge’s finding that the agency timely paid the amount
required by the settlement agreement. CID at 5. Instead, the appellant’s
representative continues to argue that the agency acted improperly by
communicating with the appellant and making this payment directly to him rather
than to his representative. E.g., C-1 PFR File, Tab 1 at 4-8. We discern no error
in the administrative judge’s finding that the terms of the settlement agreement
provided for payment to the appellant, not his representative. CID at 4-5; IAF,
Tab 21 at 7-8. Moreover, no term of the agreement forbade communication with
the appellant to effectuate the payment or required the payment to go through his
representative. IAF, Tab 21 at 7-10.
¶8 We have considered the appellant’s representative’s assertions of allegedly
improper and coercive “ex parte” communications between agency employees and
the appellant that led to this payment being made directly to the appellant without
his representative’s knowledge or consent. E.g., C-1 PFR File, Tab 1 at 4-8. A
party may breach a settlement agreement by acting in bad faith concerning a
settlement term. Burke v. Department of Veterans Affairs, 121 M.S.P.R. 299,
¶ 15 (2014). “Bad faith” in this context is not simply bad judgment or negligence
but instead implies conscious wrongdoing because of dishonest purp ose or moral
obliquity. Id. We find that the alleged facts, even if proven, would not support a
finding that the agency acted in “bad faith” amounting to a breach of the
4
In light of our finding, we do not address the timeliness of the appellant’s petition for
review of the initial decision in the merits appeal. I-1 PFR File, Tab 2 at 1-2, Tab 3.
6
agreement. The agency communicated with the appellant to arrange for the
timely payment to him required by the agreement, and, as a result, he received
timely payment. CID at 4-5. We find no indicia of “bad faith” in the agency’s
actions to comply with the agreement. The appellant’s representative’s reliance
on the Board’s regulations regarding “ex parte” communications to demonstrate
agency wrongdoing is misplaced. E.g., C-1 PFR File, Tab 1 at 39-42. The
regulations at 5 C.F.R. §§ 1201.101—.103 concern a communication between an
interested party and a decision-making official of the Board, which is not the
basis for his allegation of breach here. 5 See 5 C.F.R. § 1201.101(a). The
appellant’s representative has suggested that the agency’s conduct may have been
“unethical.” CF, Tab 8 at 4, 10. To the extent that the appellant may be asking
the Board to sanction the agency attorney, the Board lacks the general authority
to enforce state bar rules of professional conduct against attorney representatives
in proceedings before the Board, and we make no findings on such issues here.
See Gubino v. Department of Transportation, 85 M.S.P.R. 518, ¶ 11 (2000);
Christofili v. Department of the Army, 81 M.S.P.R. 384, ¶¶ 19-21 (1999).
Nevertheless, we find nothing in the record before us to suggest it would be
appropriate for the Board to invoke the authority it does possess to sanction the
agency or its representatives in these circumstances. E.g., 5 C.F.R.
§§ 1201.31(d), 1201.43. Therefore, we affirm the compliance initial decision.
NOTICE OF APPEAL RIGHTS 6
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
5
The appellant’s representative has not provided any evidence or allegations of fact to
support his speculative assertion that “[b]oth [agency] attorneys may have contacted the
[administrative j]udge, which could be ex-parte.” C-1 PFR File, Tab 1 at 5. We find
that this speculation does not warrant disturbing the compliance initial decision.
6
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.
7
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:
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.
8
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
9
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 Boar d’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. 7 The court of appeals must receive your petition for
7
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
10
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 ou r 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.
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.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.