Jason W. Abney v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON W. ABNEY, DOCKET NUMBER
Appellant, CH-0351-13-1386-C-2
v.
DEPARTMENT OF THE ARMY, DATE: September 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard Kenniston, Esquire, Somerset, Kentucky, for the appellant.
Mary L. Fuhr, Esquire, Rock Island, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement. Generally, we grant
petitions such as this one only when: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective June 21, 2013, the appellant was separated from his position as an
Explosives and Material Handler (FLO) pursuant to a reduction in force. Abney
v. Department of the Army, MSPB Docket. No. CH-0351-13-1386-I-1, Initial
Appeal File (IAF), Tab 11 at 17‑19. He filed a Board appeal challenging the
reduction in force, and the parties entered into a settlement agreement resolving
the appeal. IAF, Tab 1; Abney v. Department of the Army, MSPB Docket
No. CH-0351-13-1386-I-2, Appeal File (I-2 AF), Tab 18. 2 Pursuant to the terms
of the settlement agreement, the agency agreed to, among other things, “place
Appellant in a temporary position of Explosives and Material Handler (FLO),
WG-6502-06, step 05, $20.11 per hour for a term of at least 9 months but no more
than 12 months effective if Appellant successfully completes standard
preemployment checks to include drug test, physical, and security background.”
I-2 AF, Tab 18 at 4. On July 9, 2014, the administrative judge dismissed the
appeal as settled. I-2 AF, Tab 20.
2
The appellant’s initial appeal was dismissed without prejudice to automatic refiling
due to the Government shut down in 2013. IAF, Tab 22.
3
¶3 On March 23, 2015, the appellant filed a petition for enforcement alleging
that the agency had breached the settlement agreement when it placed him in an
Explosives and Material Handler position in the Industrial Services Division
instead of the Maintenance Division, where he formerly was employed. 3 Abney v.
Department of the Army, MSPB Docket No. CH-0351-13-1386-C-2, Compliance
File (C-2 CF), Tab 1 at 6. The appellant further contended that the agency failed
to disclose the specific reasons why it determined that he could not return to an
Explosives and Material Handler position in the Maintenance Division under the
terms of a revised Army security regulation. C-2 CF, Tab 1 at 6, Tab 7 at 5-6.
He also claimed that the agency failed to identify the name of the agency official
charged with ensuring compliance with the settlement agreement in accordance
with 5 C.F.R. § 1201.183(a)(2). C-2 CF, Tab 7 at 6.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued a compliance initial decision finding that the agency established that it was
in full compliance with the parties’ settlement agreement and that the appellant
failed to prove any breach by the agency. C-2 CF, Tab 12, Compliance Initial
Decision (CID). The administrative judge found that the settlement agreement
was not ambiguous and did not require the agency to place the appellant in a
position in the Maintenance Division because the express terms stated that the
appellant was to be placed in a temporary position of Explosives and Material
Handler without reference to any particular division. CID at 4-5. The
administrative judge further found that the terms of the settlement agreement did
not require the agency to provide any information concerning the security
3
The appellant also filed a prior petition for enforcement on August 20, 2014, in which
he asserted that he had not been placed in the proper Explosives and Material Handler
position and the agency had failed to pay him $4,000 per the terms of the settlement
agreement. Abney v. Department of the Army, MSPB Docket No. CH-0351-13-1386-
C-1, Compliance File (C-1 CF), Tab 1 at 4-5. That petition for enforcement was
dismissed as withdrawn. C-1 CF, Tabs 6-7.
4
regulation or the name of the individual responsible for enforcing the settlement
agreement. Id. at 5.
¶5 The appellant has filed a petition for review in which he reiterates his
arguments below that the agency did not identify the name of the person
responsible for ensuring compliance with the settlement agreement pursuant to
5 C.F.R. § 1201.183(a)(2) and did not explain why it determined that he was no
longer eligible for a position in the Maintenance Division under the terms of a
revised Army security regulation. Petition for Review (PFR) File, Tab 1 at 4.
The agency has not responded to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 A settlement agreement is a contract, and, as such, will be enforced in
accord 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). The Board will enforce
a settlement agreement that has been entered into the record in the same manner
as a final Board decision or order. Id. When the appellant alleges noncompliance
with a settlement agreement, the agency must produce relevant material evidence
of its compliance with the agreement or show that there was good cause for
noncompliance. Id. The ultimate burden, however, remains with the appellant to
prove breach by a preponderance of the evidence. Id.
¶7 In interpreting a settlement agreement, the Board looks to the language used
by the parties. Zamora v. Department of Defense, 58 M.S.P.R. 544, 546 (1993).
The Board has no authority to unilaterally modify the terms of the parties’
settlement agreement, Hamilton v. Department of Veterans Affairs, 92 M.S.P.R.
467, ¶ 6 (2002), or to read a nonexistent term into an agreement that is
unambiguous, Galatis v. U.S. Postal Service, 109 M.S.P.R. 651, ¶ 10 (2008). The
Board will consider parol evidence only if the agreement is ambiguous. Flores v.
U.S. Postal Service, 115 M.S.P.R. 189, ¶ 10 (2010). The terms of an agreement
are ambiguous as a result of differing interpretations as to the meaning or intent
5
given to those terms by the parties only when the respective interpretations are
both reasonable. Id. When an agreement’s words and meaning are unambiguous,
its terms are not subject to variation. Id.; see Slattery v. Department of Justice,
590 F.3d 1345, 1347 (Fed. Cir. 2010). The fact that an agreement is silent as to a
term does not mean it is ambiguous. De Luna v. Department of the Navy,
58 M.S.P.R. 526, 530 (1993).
¶8 We have reviewed the record in light of the appellant’s allegations on
review and discern no error in the administrative judge’s findings. We agree with
the administrative judge that the settlement agreement is unambiguous and does
not specify a particular division for the Explosives and Material Handler position
in which the agency agreed to place the appellant. CID at 4-5. As such, the
administrative judge correctly found that the agency’s placement of the appellant
in an Explosives and Material Handler, WG-6502, step 5 position in the Industrial
Services Division complied with the terms of the settlement agreement and
declined to imply a term into the settlement agreement based on the appellant’s
assertion that the parties had previously discussed placing him in the Maintenance
Division. CID at 5; see, e.g., De Luna, 58 M.S.P.R. at 529-30 (finding that a
settlement agreement’s silence regarding the agency’s alleged oral promise to
increase the appellant’s years of service for purposes of retirement did not render
the agreement ambiguous and declining to consider parol evidence concerning
prior settlement negotiations).
¶9 Similarly, we agree with the administrative judge that the settlement
agreement does not contain any provision requiring the agency to explain the
reasons why it determined that the appellant was no longer eligible to occupy a
position in the Maintenance Division under its revised security regulation. CID
at 5; I-2 AF, Tab 18. Finally, we find unavailing the appellant’s argument
concerning the agency’s failure to identify the individual responsible for
complying with the settlement agreement pursuant to 5 C.F.R. § 1201.183(a)(2).
PFR File, Tab 1 at 4. Under the Board’s regulations, if the agency fails to submit
6
the name and address of the agency official charged with complying with the
Board’s order, the Board presumes that the highest ranking appropriate agency
official who is not appointed by the President by and with the consent of the
Senate is charged with compliance. 4 5 C.F.R. § 1201.183(a)(2). Regardless, such
information is now immaterial because we find the agency is in compliance.
¶10 Accordingly, we find that the appellant has not met his burden to show that
the agency breached the settlement agreement, and we affirm the administrative
judge’s decision to deny the petition for enforcement.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
4
The record reflects that the agency previously had identified an individual responsible
for implementation of the settlement agreement. C-1 CF, Tab 3 at 7.
7
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.