Opinion

David Oelberg v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Apr 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID OELBERG, DOCKET NUMBERS

Appellant, PH-0432-18-0114-C-1

PH-531D-17-0196-C-1

DEPARTMENT OF AGRICULTURE,

Agency. DATE: April 10, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David Oelberg , Selinsgrove, Pennsylvania, pro se.

Dora Malykin , Washington, D.C., for the agency.

Sandy S. Francois , Kenner, Louisiana, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the compliance initial

decision, which denied his petition for enforcement, finding that he failed to meet

his burden of proving a breach of the settlement agreement. Generally, we grant

petitions such as this one only in the following circumstances: the compliance

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decision contains erroneous findings of material fact; the compliance 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 compliance 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 to

supplement the administrative judge’s analysis of the agency’s characterization of

the lump sum payment, we AFFIRM the compliance initial decision, which is

now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

On June 28, 2019, the appellant and the Department of Agriculture entered

into a settlement agreement. Oelberg v. Department of Agriculture,

PH-0432-18-0114-C-1, Compliance File (CF), Tab 1 at 7-13. 2 Thereafter, the

appellant filed the instant petition for enforcement, alleging that the agency

breached the settlement agreement. Id. at 3. He alleged that, although the agency

paid him a $20,000 lump sum pursuant to the settlement agreement, it incorrectly

characterized the payment as “other income” in a tax form filed with the Internal

Revenue Service (IRS), as opposed to characterizing it as “Gross proceeds paid to

an attorney.” Id. at 3, 15. According to the appellant, this characterization will

The settlement agreement here resolved two underlying appeals, MSPB Docket

No. PH-0432-18-0114-I-1 and PH-531D-17-0196-I-1. Upon the filing of the appellant’s

petition for enforcement, the two appeals were joined, resulting in one compliance

initial decision and one petition for review. All of the record citations in this decision

are from the appeal docketed as PH-0432-18-0114-C-1.

result in a higher tax burden on him. Id. at 3. The appellant further alleged that,

although he is banned from employment in the agency’s Animal Care Division

under the agreement, the agency breached the settlement agreement by preventing

him from receiving employment in other divisions of the Department of

Agriculture and other Federal agencies. Id.

The administrative judge advised the appellant of his burden of establishing

that the agency breached the agreement. CF, Tab 5 at 2-3. Following the

appellant’s response, the administrative judge issued an initial decision denying

the petition for enforcement. CF, Tab 6, Tab 9, Compliance Initial Decision

(CID) at 1-2. The administrative judge found that the agency’s reporting of the

$20,000 as “other income” did not violate the settlement agreement. CID at 7-9.

He further found that the appellant failed to meet his burden of proving by

preponderant evidence that the agency banned him from Federal employment in

violation of the settlement agreement. CID at 9-12.

The appellant filed a petition for review, and the agency responded.

Petition for Review (PFR) File, Tabs 1, 3. The appellant additionally filed a

motion for sanctions against the agency, alleging that its response to his petition

for review was untimely. 3 PFR File, Tab 4. The agency responded to the

appellant’s request for sanctions, asserting that it was not untimely in its original

response. PFR File, Tab 5. Finally, the appellant has replied to the agency’s

original response to his petition for review. PFR File, Tab 7.

Contrary to the appellant’s assertion, the agency’s response to his petition for review

was not untimely. In an acknowledgment order, the Clerk of the Board informed the

parties that the agency may file a response on or before July 28, 2019. PFR File, Tab 2

at 1. Because the deadline to file a response fell on a Sunday, the filing period included

the first workday after that date. 5 C.F.R. § 1201.23. Thus, the agency’s response filed

on Monday, July 29, 2019, was timely filed, and we deny the appellant’s motion for

sanctions.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the appellant failed to prove that the

agency breached the settlement agreement.

As the party asserting noncompliance, the appellant bears the burden of

proving by preponderant evidence that the agency breached the settlement

agreement; however, following the appellant’s filing of a petition for

enforcement, the agency must produce relevant, material, and credible evidence

of its compliance with the agreement. Perkins v. Department of Veterans Affairs,

105 M.S.P.R. 289, ¶ 7 (2007). Further, the appellant must show not only that the

agency acting in a manner that is inconsistent with a term of the settlement

agreement, but that there was material noncompliance with a settlement term.

Lutz v. U.S. Postal Service, 485 F.3d 1377, 1381 (Fed. Cir. 2007). “A breach is

material when it relates to a matter of vital important, or goes to the essence of

the contract.” Thomas v. Department of Housing and Urban Development ,

124 F.3d 1439, 1142 (Fed. Cir. 1997).

We modify the administrative judge’s analysis of the agency’s

characterization of the lump sum payment, but still conclude that he

properly found that the agency’s characterization was not a breach

of the settlement agreement.

On review, the appellant challenges the finding that the agency’s

characterization of the lump sum as “other income,” as opposed to “Gross income

paid to an attorney,” was not a breach of the settlement. PFR File, Tab 1 at 3.

Specifically, he argues that the administrative judge erred in relying on

Commissioner of Internal Revenue v. Banks, 543 U.S. 426 (2005), in finding that

the agency’s characterization of the lump sum payment did not breach the

settlement agreement. Id. He alleges that Commissioner is distinguishable from

the instant appeal because it involved the payment of attorneys’ fees, whereas this

appeal involves the reimbursement for attorneys’ fees already paid by the

appellant. PFR File, Tab 1 at 3. The administrative judge held that, under the

Supreme Court’s precedent in Commissioner, the agency was required to report

the lump sum payment as income to the plaintiff, even if it paid the attorney’s

fees directly to the appellant’s attorney. CID at 8. The appellant cites no

authority in support of his distinction between payments for attorneys’ fees and

reimbursements for attorneys’ fees already paid, but rather, merely disagrees with

the administrative judge’s conclusions, which we see no reason to disturb. See

Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010) (finding mere

disagreement with the administrative judge’s findings is insufficient to disturb the

initial decision). However, even assuming arguendo that the Supreme Court’s

holding in Commissioner does not apply, the appellant has nonetheless failed to

meet his burden of proving that the agency breached the settlement by

characterizing the lump sum as “other income.”

The administrative judge found that, regardless of the holding in

Commissioner, the lump sum payment here was paid to the appellant, not to his

attorney, and thus the labeling of such a payment as “Gross proceeds paid to an

attorney” would be incorrect. CID at 7-8. We agree, and modify his findings to

supplement the analysis regarding the agency’s characterization of the lump sum

payment under the actual terms of the agreement.

The Board interprets settlement agreements by applying the law of

contracts. Felch v. Department of the Navy, 112 M.S.P.R. 145, ¶ 8 (2009). In

construing the terms of a written settlement agreement, the words of the

agreement itself are of paramount importance. Id. Moreover, in construing a

settlement agreement, the Board examines the four corners of the agreement to

determine the parties’ intent. Id. The agreement here states that the agency

“makes no representations regarding any [F]ederal, state, or local tax liability

which may be incurred by Appellant as a result of this payment.” CF, Tab 1 at 8.

It further states that the agency “will report the payment amount to the [IRS],”

and that “[a]ny disputes over taxes are between the IRS and Appellant, and not

the Agency.” Id. The agreement makes no distinction as to how the agency will

characterize the payment for tax purposes, and thus, the agreement does not

require the agency to characterize the payment in any particular way. Rather,

pursuant to the settlement agreement, any dispute over the taxes is between the

appellant and the IRS, not the agency. CF, Tab 1 at 8. Accordingly, we agree

with the administrative judge that the appellant failed to meet his burden of

proving that the agency’s characterization of the lump sum payment breached the

settlement agreement. 4

The administrative judge properly found that the appellant failed to

prove that the agency banned him from employment in violation of

the settlement agreement.

The appellant further challenges the administrative judge’s holding that,

outside of the Animal Care Division, the agreement was silent as to what the

agency could and could not do concerning the appellant’s efforts to obtain

Federal employment. PFR File, Tab 1 at 3-4. He takes umbrage with the

administrative judge’s assertion that the agency’s interference with his job

applications, if proven, would nonetheless not constitute a breach of the

settlement agreement. Id. He additionally challenges the finding that actions

taken by agency officials prior to the signing of the settlement agreement could

not evidence a breach of the agreement. Id. at 4.

The administrative judge found that the agreement in no way barred the

agency from giving the appellant negative reviews for future applications for

employment. CID at 9-10. He further noted that actions taken by an agency

employee prior to the settlement agreement “cannot be considered as evidence

that a breach occurred.” CID at 6 n.3. The appellant cites no authority casting

doubt on the administrative judge’s findings. Mere disagreement with the

administrative judge’s findings is insufficient to disturb the initial decision.

The appellant further argues that the agency failed to submit evidence of its

compliance with the settlement agreement, as required, and that the administrative

judge erred by issuing a decision without such evidence. PFR File, Tab 1 at 3.

However, he is not alleging that the agency failed to pay him the $20,000. CF, Tab 1

at 3, 15. His own submission, which demonstrates that the agency did in fact pay him

the $20,000, demonstrates that the agency met its burden of showing compliance.

Yang, 115 M.S.P.R. 112, ¶ 12. Accordingly, we see no reason to disturb the

administrative judge’s finding that the appellant provided no evidence of the

agency interfering with his applications. CID at 10.

The appellant also argues that the agency failed to submit evidence of its

compliance with the settlement agreement regarding his alleged ban from

employment. PFR File, Tab 1 at 3. However, the agency submitted sworn

statements from various agency personnel asserting that they have not had

communications with prospective employers concerning the appellant and that

they were not interfering with his applications for employment in any way.

CF, Tab 7 at 19-25. The sworn statements additionally explain why, with regards

to the appellant’s applications within the agency, the appellant was not referred. 5

Id. at 19-23. We therefore find the appellant’s argument that the agency failed to

submit evidence of compliance unavailing.

We find unpersuasive the appellant’s assertion that the administrative judge

engaged in ex parte communications with the agency.

On review, the appellant alleges that the agency and the administrative

judge engaged in prohibited ex parte communications. PFR File, Tab 1 at 3. He

alleges that the initial decision contains statements attributed to the agency that

are not in the record. Id. As an example, he notes that the initial decision

attributes the agency with pointing out that three of the five positions the

appellant was not selected for were not with the agency. Id. We find the

appellant’s assertion unavailing.

The Board’s regulations describe prohibited ex parte communications as

those communications made between a decision-making official of the Board and

an interested party to a proceeding when the communication is made without

giving the other parties to the appeal a chance to participate and where the

communication involves the merits of the case. 5 C.F.R. § 1201.101; see

One of the applications was for current agency employees only, which the appellant

was not. CF, Tab 7 at 20. The other required graduate-level education or experience

which the appellant did not have. Id. at 23.

Gubino v. Department of Transportation, 80 M.S.P.R. 442, 444 (1998). The

appellant’s original submission includes a screenshot of his USA Jobs profile,

which shows three unsuccessful applications for employment with agencies other

than the Department of Agriculture. CF, Tab 1 at 16-17. Moreover, in both of its

submissions below, the agency stated that the appellant’s applications were to

multiple Federal agencies, not just the Department of Agriculture. CF, Tab 4

at 5, Tab 7 at 7. The appellant provides no other evidence or argument in support

of his allegation that the agency engaged in prohibited ex parte communications

with the administrative judge. Based on the foregoing, we find that there is no

evidence to support a finding of prohibited ex parte communications.

NOTICE OF APPEAL RIGHTS 6

The 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 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

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.

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.

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

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. 7 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

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.