The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE M. PENA, III, DOCKET NUMBER
Appellant, CH-0752-16-0046-C-1
v.
DEPARTMENT OF THE ARMY, DATE: April 13, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jose M. Pena, III, Louisville, Kentucky, pro se.
Michael A. Suire, Fort Knox, Kentucky, 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, which denied his petition for enforcement of a settlement agreement
resolving his removal appeal. Generally, we grant petitions such as this one only
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 this appeal, 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. Except as expressly MODIFIED by
this Final Order to correct the disposition of this appeal to find that the petition
was denied and not dismissed, and address the appellant’s new allegation raised
on review, we AFFIRM the compliance initial decision.
BACKGROUND
¶2 The appellant filed an appeal challenging the agency’s removal action.
Pena v. Department of the Army, MSPB Docket No. CH-0752-16-0046-I-1, Initial
Appeal File (IAF), Tab 1. While the appeal was pending, the parties entered into
a settlement agreement that resolved the appellant’s Board appeal and all claims
against the agency related to his removal. IAF, Tab 12 at 5. Under the terms of
the settlement agreement, the agency agreed to amend the appellant’s Standard
Form 50 (SF-50) to state that he was removed for medical inability to perform the
essential functions of his position. Id. The appellant agreed to “accept [this]
remedy” and to “the dismissal of the [appeal] with prejudice.” Id. The appellant
also acknowledged that he carefully read and understood the terms of the
agreement, he had an opportunity to consult with a representative, and he
voluntarily signed the agreement. Id. at 6.
3
¶3 In an initial decision, the administrative judge found that the appeal was
within the Board’s jurisdiction and the settlement agreement was lawful on its
face, freely entered into by the parties and they understood its terms. IAF,
Tab 13, Initial Decision at 1-2. Accordingly, the administrative judge entered the
agreement into the record for the purposes of enforcement by the Board and
dismissed the appeal as settled. Id.
¶4 The appellant filed a petition for enforcement arguing that he is entitled to
severance pay according “to OPM, MSPB, and Union guidelines,” and that the
agency erroneously noted on his amended SF-50 that he is not entitled to
severance pay. Pena v. Department of the Army, MSPB Docket No. CH-0752-16-
0046-C-1, Compliance File (CF), Tab 1 at 5. The agency responded by asserting
that it had fully complied with the terms of the settlement agreement by amending
the appellant’s SF-50 to state that the basis for his removal was medical inability
to perform the essential functions of his position. CF, Tab 4 at 5. The agency
submitted a copy of the amended SF-50 as proof of compliance. Id. at 10. The
agency argued that the settlement agreement did not include severance pay and
the parties never discussed severance pay during the settlement negotiat ions. Id.
at 5.
¶5 Without holding the hearing that the appellant requested , the administrative
judge issued a compliance initial decision finding the agency in compliance with
the settlement agreement. CF, Tab 1 at 2, Tab 8, Compliance Initial Decision
(CID) at 4. She found that the appellant did not dispute that the agency had
complied with the agreement by amending his SF-50 to state that his removal was
based on a medical inability to perform. CID at 4. The administrative judge also
found that the appellant agreed to waive all claims against the employing agency
relating to his removal, including any right to back pay or a severance package,
and that he provided no authority to support his claim that he was e ntitled to
severance pay under “OPM, MSPB, and Union guidelines.” Id. The
4
administrative judge further found that the appellant did not allege fraud or
misrepresentation by the agency. Id.
¶6 The appellant has filed a petition for review of the compliance initial
decision. Compliance Petition for Review (CPFR) File, Tab 1. The agency has
not responded to his petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as any final Board decision or order.
Stasiuk v. Department of the Army, 118 M.S.P.R. 1, ¶ 5 (2012). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. When, as
here, the appellant files a petition for enforcement of a settlement agreement over
which the Board has enforcement authority, the agency must produce relevant,
material, and credible evidence of its compliance with the agreement. Id. Still,
the ultimate burden of proof is on the appellant, as the party seeking enforcement,
to show that an agency failed to fulfill the terms of an agreement. Id.
¶8 The administrative judge found that the agency proved that it complied with
the settlement by amending the appellant’s SF-50 in accord with the terms of the
parties’ agreement, which did not require the agency to provide the appellant with
back pay or severance pay. CID at 4. The appellant does not dispute these
findings on review, and we affirm them. Moreover, the appellant does not allege
a new breach by the agency or identify any error in the administrative judge’s
determination that the agency is in compliance with the parties’ settlement
agreement. Having carefully reviewed the parties’ settlement agreement, the
appellant’s petition for enforcement, the agency’s evidence of compliance, and
the compliance initial decision, we affirm the compliance initial decision as
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modified to deny the petition for enforcement. 3 IAF, Tab 12; CF, Tab 1, Tab 4
at 8-10; CID.
¶9 For the first time on review, the appellant argues that the agency misled him
by failing to inform him that he would not receive severance pay if the agency
amended his SF-50 to reflect that he was removed based on a medical inability to
perform. CPFR File, Tab 1 at 4. He states that the administrative judge
suggested amending the appellant’s SF-50 to state that his removal was based on
a medical inability to perform so that he could apply for “medical disability, both
sides agreed and that was the end of it.” Id. He also indicates that he would have
objected to the amendment if he had known that it would negate his eligibility for
severance pay, and that the agency withheld this information from him. Id.
¶10 When an appellant’s petition for enforcement “unmistakably” challenges the
validity of the agreement, the Board will treat it as a petition for review .
Miller v. Department of the Army, 112 M.S.P.R. 689, ¶ 12 (2009). A party may
challenge the validity of a settlement agreement if he believes that the agreement
is unlawful, involuntary, or the result of fraud or mutual mistake. Hinton v.
Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013). Here, the
appellant’s allegations on review are not sufficient for us to find that he is
“unmistakably” challenging the validity of the agreement in his petition for
enforcement. See Miller, 112 M.S.P.R. 689, ¶ 12 (finding that an appellant’s
allegations that she and her attorney had overlooked the agency’s revisions to a
settlement agreement was at most an allegation of unilateral mistake by her and
her attorney in accepting the agency’s revisions to the draft agreement) ;
Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶¶ 5, 9, 11 (2009)
3
Although the administrative judge stated that she dismissed the petition for
enforcement, her analysis reflects that she denied the petition on the merits. CID at 5.
We therefore modify the initial decision to find that she denied the petition for
enforcement. See Wofford v. Department of Justice, 115 M.S.P.R. 367, ¶¶ 16-17 (2010)
(correcting the disposition of a petition for enforcement from “dismissed” to “den[ied]”
when the administrative judge made a decision on the merits of the petition).
6
(finding an appellant’s claim that the agency induced him into agreeing to resign
with incorrect assurances during settlement negotiations that he would be able to
retire was an unmistakable challenge to the validity of the settlement agreement ).
The appellant does not seek to invalidate the settlement agreement, allege the
agency made any assurance that he would receive severance pay that induced him
to settle, or suggest that he made inquiries regarding severance pay before signing
the agreement. See Schwartz v. Department of Education, 113 M.S.P.R. 601, ¶ 10
(2010) (finding an appellant’s statement that accurate retirement information
would have “affected [his] thinking about settlement” did not constitute an
allegation that accurate retirement information would have caused him not to
settle). Thus, we do not interpret the appellant’s new allegations on review as a
challenge to the validity of the settlement agreement. 4
¶11 Accordingly, we find that the administrative judge properly denied the
appellant’s petition for enforcement.
NOTICE OF APPEAL RIGHTS 5
The compliance initial decision, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
4
If the appellant intends to challenge the validity of the settlement agreement , he may
do so by filing a petition for review in Pena v. Department of the Army, MSPB Docket
No. CH-0752-16-0046-I-1. However, we do not address the timeliness of any petition
for review that may be filed in that matter. See Hazelton, 112 M.S.P.R. 357, ¶¶ 9-10
(2009) (discussing the requirement to file a timely petition for review or show good
cause for the delay).
5
Since the issuance of the initial decision in this matter, the Board m ay 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
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 partic ular
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
8
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 th eir 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,
9
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. 6 The court of appeals must receive your
6
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.
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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.