# Robert Coleman v. United States Postal Service

> Merit Systems Protection Board · March 20, 2024

URL: https://www.frixlaw.com/law-library/cases/9953256

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 20, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ROBERT M. COLEMAN, DOCKET NUMBER
Appellant, DA-0752-23-0008-X-1

v.

UNITED STATES POSTAL SERVICE, DATE: March 20, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Albert Lum , Brooklyn, New York, for the appellant.

Michael Tita and Roderick Eves , St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman

FINAL ORDER

¶1 This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s January 5, 2023 Order in Coleman v. United States
Postal Service, MSPB Docket No. DA-0752-23-0008-I-1, in which the
administrative judge accepted the parties’ settlement agreement into the record
for enforcement purposes. Coleman v. United States Postal Service, MSPB
Docket No. DA-0752-23-0008-I-1, Initial Appeal File (IAF), Tab 23, Initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Decision (ID). On November 8, 2023, the administrative judge issued a
compliance initial decision finding the agency not in compliance with the Board’s
January 5, 2023 Order. Coleman v. United States Postal Service, MSPB Docket
No. DA-0752-23-0008-C-1, Compliance File (CF), Tab 9, Compliance Initial
Decision (CID). For the reasons discussed below, we find the agency in
compliance and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On October 11, 2022, the appellant appealed his removal by the United
States Postal Service (agency) from the position of Supervisor, Customer Service.
IAF, Tab 1. On January 5, 2023, the administrative judge, pursuant to a
settlement agreement between the parties, issued an initial decision which
dismissed the appeal as settled and accepted the settlement agreement into the
record for enforcement purposes. ID at 1-2. The settlement agreement called for,
inter alia, expunging the appellant’s removal documentation from his electronic
official personnel file (eOPF) and substituting a Notification of Personnel Action,
SF-50, showing he voluntarily resigned, effective January 31, 2023. CID at 3-4.
The initial decision became the final decision of the Board on February 9, 2023,
when neither party petitioned for administrative review. ID at 3.
¶3 On May 11, 2023, the appellant filed a petition for enforcement of the
settlement agreement, alleging that his “PS Form 50 [Notification of Personnel
Action]” in his eOPF had codes on it indicating that his departure from the agency
was due to a resignation in lieu of removal. CF, Tab 1 at 1-2. In its response to
the appellant’s petition, the agency stated it had removed the appellant’s Notice
of Proposed Removal and Letter of Decision from his eOPF, as required by the
settlement agreement. CF, Tab 3 at 4-7. The agency further stated that the codes
in the appellant’s PS Form 50 did not signify a voluntary resignation, as alleged
by the appellant, but instead only indicated his last day in pay status. Id. The
agency did admit, however, that, due to the appellant’s attempts to apply for new
3

jobs with the agency, it added new documentation to his eOPF reflecting the prior
misconduct that led to his removal, to ensure that other officials in the agency
were aware that he was not suitable to be rehired. Id. at 5. The agency argued
that inclusion of the new report in his eOPF was not prohibited by his settlement
agreement. Id.
¶4 On July 18, 2023, the administrative judge held a telephonic status
conference with the parties. CF, Tab 6. During the call, the administrative judge
informed the appellant that, should she find noncompliance with the settlement
agreement by the agency, the appellant would be allowed to elect either
enforcement of the agreement or rescission of the agreement and reinstatement of
his original appeal. Id. at 2. The appellant stated during the call that, should
noncompliance be found, he would request enforcement of the agreement. Id.
¶5 On November 8, 2023, the administrative judge found the agency not in
compliance due to its inclusion of the additional materials in the appellant’s
eOPF. CID at 4-7. The administrative judge found that, while the agency was in
compliance with respect to the appellant’s PS Form 50, the appellant and the
agency had agreed to a “clean record” settlement agreement, and the agency’s
inclusion of the new report reflecting his removal violated that agreement. 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. Accordingly, 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. Coleman v. United States Postal Service,
MSPB Docket No. DA-0752-23-0008-X-1, Compliance Referral File (CRF),
Tab 2.
¶6 On January 1, 2024, the appellant argued to the Board that the agency’s
noncompliance prevented him from being able to apply for new jobs with the
agency. CRF, Tab 3 at 4. The appellant requested that the Board order the
4

agency to reinstate him to employment and pay him back pay to remedy the
noncompliance. Id.
¶7 On January 19, 2024, the agency submitted a pleading in which the agency
representative declared under penalty of perjury that the agency’s additional
report reflecting the appellant’s removal had been removed from the appellant’s
eOPF. CRF, Tab 4 at 4.

ANALYSIS
¶8 The Board has authority to enforce a settlement agreement that has been
entered into the record for enforcement purposes in the same manner as any final
Board decision or order. Vance v. Department of the Interior,
114 M.S.P.R. 679, ¶ 6 (2010). A settlement agreement is a contract, and the
Board will therefore adjudicate a petition to enforce a settlement agreement in
accordance with contract law. Allen v. Department of Veterans Affairs,
112 M.S.P.R. 659, ¶ 7 (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). Where,
as here, an appellant alleges noncompliance with a settlement agreement, the
agency must produce relevant, material, and credible evidence of its compliance
with the agreement. Vance, 114 M.S.P.R. 679, ¶ 6.
¶9 The agency’s outstanding compliance obligation was to remove the “NACI
report” reflecting the appellant’s removal from the appellant’s eOPF. On
January 19, 2024, the agency submitted a pleading that declared under penalty of
perjury that it had expunged the additional “NACI report” from the appellant’s
eOPF. CRF, Tab 4 at 4. The appellant did not file any response to the agency’s
January 19, 2024 submission. Therefore, based on the agency’s submission, we
find that the agency is now in full compliance with the Board’s January 5,
2023 Order.
¶10 Finally, addressing the appellant’s request for reinstatement and back pay
due to the agency’s noncompliance, the Board has no authority to grant the
requested remedy. Wonderly v. Department of the Navy, 68 M.S.P.R. 529, 532
5

(1995). Where an appellant establishes that an agency is in breach of a settlement
agreement, he is entitled only to enforcement of the agreement or rescission of the
agreement and reinstatement of his claim on appeal. Id. When presented with
this choice by the administrative judge, the appellant elected enforcement of the
agreement, and the Board has accordingly enforced it by requiring the agency to
meet its obligations. CF, Tab 6 at 2.
¶11 Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and DISMISSES 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 forth 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).

2
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.
6

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.
7

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. 420 (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
8

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
3
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
9

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.

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.
10

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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9953256. Public record. Not legal advice.