Opinion

Karen Cleaver-Bascombe v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Apr 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

outlining that an agency is not required to serve a notice of compliance in cases where a settlement agreement is reached

How later courts described this case

outlining that an agency is not required to serve a notice of compliance in cases where a settlement agreement is reached

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KAREN CLEAVER-BASCOMBE, DOCKET NUMBER

Appellant, DC-0752-15-0034-C-1

DEPARTMENT OF AGRICULTURE, DATE: April 16, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Karen Cleaver-Bascombe , Washington, D.C., pro se.

Timothy O. Schranck and Martin A. Gold , Esquire, Washington, D.C., 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 initial decision that

denied her petition for enforcement of a 2015 settlement agreement that she

entered into with the agency. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. However, we VACATE the initial

decision’s finding that the appellant failed to establish good cause for the

untimely filing of her petition for enforcement of the lump sum payment claim

and MODIFY the initial decision to DISMISS this claim because the appellant did

not file her petition for enforcement within a reasonable amount of time after she

became aware of the supposed breach. We further MODIFY the initial decision

by addressing the appellant’s entire breach claim regarding the confidentiality

provision.

BACKGROUND

On October 13, 2014, the appellant filed an appeal with the Board

contesting her removal from the agency. Cleaver-Bascombe v. Department of

Agriculture, MSPB Docket No. DC-0752-15-0034-I-1, Initial Appeal File (IAF),

Tab 1. Effective May 13, 2015, the appellant and the agency entered into a

settlement agreement. Cleaver-Bascombe v. Department of Agriculture, MSPB

Docket No. DC-0752-15-0034-C-1, Compliance File (CF), Tab 8 at 21-30. The

administrative judge issued an initial decision in the removal appeal on

May 14, 2015, dismissing it as settled and entering the agreement into the

Board’s record for enforcement purposes. IAF, Tab 93, Initial Decision (ID)

at 1-2.

Under the terms of the settlement agreement, the agency, among other

things, agreed to pay the appellant a lump sum of $100,000, and expunge the

appellant’s official personnel folder and other agency files of documents

concerning her removal (and other select personnel matters). CF, Tab 8 at 21-25.

In exchange, the appellant, among other provisions, agreed to voluntarily resign

in lieu of her removal, not seek employment in the same office in the future, and

withdraw and waive claims against the agency through the effective date of the

agreement, including her removal appeal before the Board. Id. at 25-28.

A provision was included requiring the parties to keep the agreement confidential,

but it did state that the agreement did not provide the appellant with a “clean

record” and that the agency would not withhold information from “lawful

requestors to whom the Agency is legally obligated to disclose such records.”

Id. at 22, 28.

On April 16, 2018, the appellant filed a petition for enforcement with the

Board, setting forth claims that the agency breached the settlement agreement.

CF, Tab 1. First, the appellant alleged she received $64,000 on or about June 30,

2015, and not the $100,000 outlined in the agreement. CF, Tab 1 at 10, Tab 10

at 6-7. The appellant then asserted that in 2018, the agency violated the

confidentiality provision of the settlement agreement by disclosing her removal

and the existence of the settlement agreement to the Office of Disciplinary

Counsel for the District of Columbia’s Board on Professional Responsibility.

CF, Tab 1 at 10, Tab 10 at 7-15.

The administrative judge issued an initial decision on June 19, 2018,

dismissing the petition for enforcement regarding the lump sum payment as

untimely filed and finding that the appellant failed to prove that the agency

breached the confidentiality provision of the agreement. CF, Tab 11, Compliance

Initial Decision (CID) at 1-8. The appellant’s petition for review followed, and

the agency responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred when assessing in the initial decision whether the

appellant established good cause for the untimely filing of her petition for

enforcement on the lump sum payment claim.

Unlike a Board order where the Board’s regulations require a notice of

compliance, there is no such requirement where a case is settled. Kasarsky v.

Merit Systems Protection Board, 296 F.3d 1331, 1335 (Fed. Cir. 2002); 5 C.F.R.

§ 1201.181; see Bostick v. Department of Health and Human Services ,

63 M.S.P.R. 399, 401 (1994). A petition for enforcement of a settlement

agreement must be filed within a reasonable amount of time from the date the

petitioning party becomes aware of the alleged breach of the agreement.

Phillips v. Department of Homeland Security, 118 M.S.P.R. 515, ¶ 11 (2012); see

Bostick, 63 M.S.P.R. at 401. There is no need to show good cause to excuse an

untimely filing of a petition for enforcement of a settlement agreement. Poett v.

Merit Systems Protection Board, 360 F.3d 1377, 1380-81 (Fed. Cir. 2004).

Therefore, the administrative judge erred in the initial decision when assessing

whether the appellant demonstrated good cause for the late filing of her petition

for enforcement on the lump sum payment claim, meaning that any conclusions

on the matter are vacated. CID at 5-6.

The appellant was provided with notice and an opportunity to establish that her

petition for enforcement was timely filed.

When an appeal appears untimely, an administrative judge is to apprise the

appellant of the issue by providing information concerning what she must show to

establish that her appeal was timely. Gutierrez v. U.S. Postal Service,

90 M.S.P.R. 604, ¶ 11 (2002). The appellant must then be provided with an

opportunity to submit argument and evidence on the issue. Lacy v. Department of

the Navy, 78 M.S.P.R. 434, 438-39 (1998). Any shortcoming in providing this

notice and an opportunity to submit argument and evidence can be cured if the

initial decision puts the appellant on notice of her burden to demonstrate

timeliness, thus giving her a chance to meet it on review. See Easterling v. U.S.

Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008). In this case, the initial decision put

the appellant on notice of her burden to prove that her petition for enforcement of

the settlement agreement was timely filed. CID at 4-5. The appellant proffered

her arguments on timeliness in her petition for review. PFR File, Tab 1 at 4-5.

As a result, any error by the administrative judge in not providing the appellant

notice and an opportunity to respond on this issue below has been cured.

In Chudson v. Environmental Protection Agency, 71 M.S.P.R. 115, 118

(1996), aff’d, 132 F.3d 54 (Fed. Cir. 1997) (Table), the administrative judge

failed to provide the appellant with notice of the timeliness issue before

dismissing his petition for enforcement of a settlement agreement as untimely

filed. Yet, the record was developed for the Board to make a finding concerning

timeliness on review without a remand, particularly because the appellant’s

evidence on review did not differ significantly from what he set forth below, and

on review, he had notice of the issue from the initial decision. Id. The instant

appeal is similar to Chudson in many regards. On review here, the appellant

argues that good cause exists to excuse her untimely filing of her petition for

enforcement regarding the lump sum payment breach claim. PFR File, Tab 1

at 4-5. We take the appellant’s arguments into consideration and assess whether

she filed her petition for enforcement within a reasonable amount of time after

she learned of the supposed breach, which is the appropriate standard. Poett,

360 F.3d at 1380.

The appellant’s petition for enforcement regarding the 2015 lump sum payment is

untimely, as she did not file it within a reasonable period after she became aware

of the supposed breach.

The record establishes that the appellant, through her then representative,

sent the agency an email on July 10, 2015, claiming that the agency had not

complied with the agreement because the appellant did not receive the full

$100,000 payment. CF, Tab 8 at 31-32. The appellant herself sent a follow -up

email to the agency on July 13, 2015. Id. at 35. The agency responded to the

appellant on July 10 and July 19, 2015, confirming that it had sent the payment in

full, along with an explanation as to why the appellant only received

approximately $65,000. 2 Id. at 31, 34. This evidence proves that the appellant

was aware of the purported breach in July 2015.

As noted, the appellant did not file her petition for enforcement until

April 2018. CF, Tab 1. She set forth various arguments on review for why it

took her almost 3 years to file a petition for enforcement after learning of the

claimed breach. PFR File, Tab 1 at 4-5. She first argues that the agency never

provided her with a notice of compliance. Id. Yet, as noted, agencies that enter

into settlement agreements are not required to serve a notice of compliance.

Kasarsky, 296 F.3d at 1335; 5 C.F.R. § 1201.181; see Bostick, 63 M.S.P.R.

at 401. Notwithstanding, the record contains emails from the agency sent on

July 10 and July 19, 2015, to the appellant and her then representative,

confirming the agency’s belief that it had paid the appellant $100,000 in full

compliance with the settlement agreement. CF, Tab 8 at 31, 34. The appellant

further asserts that she was not informed of the procedures for filing a petition for

enforcement. PFR File, Tab 1 at 4-5. However, the administrative judge

provided detailed instructions on how to file a petition for enforcement in the

initial decision that dismissed the appellant’s removal appeal as settled. ID at 2.

Lastly, the appellant’s claim that the agency violated 5 C.F.R. § 1201.181 is

misplaced, as this regulation concerns compliance of final orders issued by the

Board, not settlement agreements. PFR File, Tab 1 at 4; see Kasarsky, 296 F.3d

at 1335 (outlining that an agency is not required to serve a notice of compliance

in cases where a settlement agreement is reached).

The agency certified the $100,000 payment to the appellant on June 30, 2015;

however, the U.S. Department of Treasury, through its Offset Program, recovered

$35,024.99 of this payment to satisfy an indebtedness of the appellant. CF, Tab 8 at 34.

The appellant received $64,975.01. Id. The record does not reflect the source of the

appellant’s indebtedness.

Thus, the appellant, who was represented by an attorney for much of the

relevant proceedings, has not proven that waiting almost 3 years to file her

petition for enforcement after she was aware of the supposed breach of the term

of the settlement agreement requiring the lump sum payment was reasonable.

Dismissal of this portion of her petition for enforcement is warranted. See

Chudson, 71 M.S.P.R. at 118-19 (dismissing a petition for enforcement on

timeliness grounds that was filed 1 year after the appellant learned of the alleged

breach, while noting that the appellant had previous experience litigating before

the Board and was represented by counsel).

The appellant failed to prove that the agency breached the confidentiality

provision of the agreement.

The appellant’s initial claim regarding the confidentiality provision

consisted of the agency breaching the agreement because it discussed her

expunged removal with the Office of Disciplinary Counsel for the District of

Columbia’s Board on Professional Responsibility. CF, Tab 1 at 10. The

appellant supplemented her claim by adding that the agency also breached the

confidentiality provision when it disclosed the existence and the parameters of the

settlement agreement to the Office of Disciplinary Counsel. CF, Tab 10 at 9-15.

The initial decision addressed the former claim but not the latter. CID at 7-8. An

initial decision must contain findings of fact and conclusions of law for the

material issues presented in the record, along with the corresponding reasons or

bases. Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980).

Thus, while we agree with the administrative judge’s overall conclusion that the

appellant did not meet her burden of proving that the agency violated the

agreement, we modify the analysis to address the appellant’s entire claim

pertaining to the confidentiality provision.

When an appellant alleges that a settlement agreement has been breached,

she bears the ultimate burden of proving the claim by preponderant evidence.

Allen v. Department of Veterans Affairs, 112 M.S.P.R. 659, ¶ 7 (2009), aff’d,

420 F. App’x. 980 (Fed. Cir. 2011). The confidentiality provision at issue states

that the agreement “is confidential” and “applies only to communications with

third parties.” CF, Tab 8 at 28. In 2015, the appellant admittedly disclosed to the

Office of Disciplinary Counsel that she had been removed and entered into a

settlement agreement with the agency. CF, Tab 9 at 28. In particular, the

appellant stated, “[i]n October 2014, I filed a complaint at Merit System

Protection Board for wrongful termination . . . but the case was settled, for a

monetary sum, and that my resignation was part of that settlement . . . .” Id.

(grammar, spelling, and punctuation as in the original).

The Board held in Caston v. Department of the Interior, 108 M.S.P.R. 190,

¶ 21 (2008), that it would be inequitable to require an agency to remain silent in

order to adhere to a settlement agreement’s confidentiality provision when the

appellant had first violated that provision. We find that this holding from Caston

applies to this appeal. After the appellant informed the Office of Disciplinary

Counsel of her removal and the existence of the settlement agreement, the

agency’s representative later confirmed with the same third party the agreement

and the appellant’s resignation in lieu of removal. CF, Tab 9 at 5, 28. Based on

the appellant’s earlier disclosure of even more information, the agency was not in

breach by confirming the same information to the same third party, as it was no

longer under an obligation to keep it confidential.

The other topic that the agency discussed with the Office of Disciplinary

Counsel pertained to the appellant’s purported unauthorized use of a

government-issued phone. Id. at 5-6. The settlement agreement did not preclude

the agency from discussing this topic, as it was not the basis for the appellant’s

removal or involved in any personnel action covered by the settlement

agreement. 3 CF, Tab 8 at 21-30.

The agency removed the appellant for various charges related to time and attendance

matters and abandonment of her position. IAF, Tab 1 at 7-9.

Notwithstanding, the settlement agreement between the parties was not a

“clean record” agreement, and the agency had the right to disclose information to

“lawful requestors to whom the Agency is legally obligated to disclose such

records.” Id. at 22. Thus, the agency’s actions contested in the appellant’s

petition for enforcement regarding the confidentiality provision are not a breach.

See Del Balzo v. Department of the Interior, 60 M.S.P.R. 659, 662 n.1 (1994)

(stating that there was no reason for the Board to address a breach claim, as even

if the settlement agreement prohibited the agency from disclosing to prospective

employers the existence of the agreement, the record indicated that the appellant

first disclosed the existence of the agreement to the prospective employers).

NOTICE OF APPEAL RIGHTS 4

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. 5 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.