Clarence Templeton v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARENCE M. TEMPLETON, III, DOCKET NUMBERS
Appellant, DE-1221-21-0032-C-1
DE-1221-21-0032-R-1
v. DE-4324-21-0067-C-1
DE-4324-21-0067-R-1
DEPARTMENT OF THE AIR FORCE,
Agency.
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL 1
Jerald Rule, Washington, D.C., for the appellant.
Bobbie Garrison, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed petitions for review of the compliance initial
decisions docketed as Templeton v. Department of the Air Force, MSPB Docket
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
No. DE-1221-21-0032-C-1, and Templeton v. Department of the Air Force, MSPB
Docket No. DE-4324-21-0067-C-1, which denied his petitions for enforcement of
the parties’ settlement agreements that resolved his individual right of action
(IRA) and Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeals. For the reasons set forth herein we REOPEN the
underlying appeals, docketing them as Templeton v. Department of the Air Force,
MSPB Docket No. DE-1221-21-0032-R-1, and Templeton v. Department of the
Air Force, MSPB Docket No. DE-4324-21-0067-R-1. 2 We also JOIN the
compliance appeals. We GRANT the appellant’s petitions for review, VACATE
the initial decisions dismissing the underlying appeals as settled, VACATE the
compliance initial decisions denying the appellant’s petitions for enforcement ,
and REMAND the reopened appeals to the field office for further adjudication in
accordance with this Remand Order.
2
The Board will exercise its discretion to reopen an appeal only in unusual or
extraordinary circumstances and generally within a short period of time after the
decision becomes final. 5 C.F.R. § 1201.118. We recognize that the initial decisions in
the appellant’s underlying appeals became final in February 2021. Templeton v.
Department of the Air Force, MSPB Docket No. DE-1221-21-0032-W-1, Initial
Decision at 3 (Jan. 19, 2021); Templeton v. Department of the Air Force, MSPB Docket
No. DE-4324-21-0067-I-1, Initial Decision at 3 (Jan. 22, 2021). However, the appellant
sought enforcement of the settlement agreements that resolved the appeals in
April 2021, only 2 months after the initial decisions became final. Templeton v.
Department of the Air Force, MSPB Docket No. DE-1221-21-0032-C-1, Compliance
File, Tab 1; Templeton v. Department of the Air Force, MSPB Docket No. DE-4324-21-
0067-C-1, Compliance File, Tab 1. Further, we find the circumstances here unusual
because, as discussed below, the parties only became aware that the settlement
agreements were premised on a mutual mistake of fact after the agency attempted
compliance, and the discovery of this mistake of fact was an intervening event that
directly bears on the dismissal of the underlying appeals as settled. Jennings v. Social
Security Administration, 123 M.S.P.R. 577, ¶ 17 (2016) (explaining that unusual or
extraordinary circumstances that justify reopening an appeal include, as relevant here,
an intervening event that directly bears on the result ). Therefore, we exercise our
discretion to reopen the underlying appeals.
3
BACKGROUND
¶2 From June 1, 1986, to March 31, 2004, the appellant served a number of
tours of duty in the military. Templeton v. Department of the Air Force, MSPB
Docket No. DE-1221-21-0032-W-1, Initial Appeal File (0032 IAF), Tab 9 at 46.
Then beginning in November 2009, he served in a series of appointments in
Federal agencies and departments. 0032 IAF, Tab 9 at 19, Tab 10 at 41.
As relevant to this appeal, the appellant asserted that he made two deposits to
receive service credit for a portion of his military service towards his Federal
Employees’ Retirement System (FERS) retirement, while employed at the
Department of the Navy and Department of Veterans Affairs, in 2013 and 2015
respectively. 0032 IAF, Tab 7 at 3, Tab 9 at 81, Tab 10 at 41.
¶3 In March 2018, he was appointed to a position with the agency, and was
employed with the agency at all times relevant to this appeal. 0032 IAF,
Tab 9 at 18. Between 2018 and 2019, the appellant attempted to correct
his military service credit to reflect that he paid the two deposits, which should
have resulted, by his calculation, in 1133 days of creditable FERS service as of
September 2015. 0032 IAF, Tab 1 at 5, 10, Tab 7 at 3-4, Tab 9 at 52-54.
In July 2019, after the appellant contacted U.S. Senator Martin Heinrich, Senator
Heinrich’s office requested assistance in correcting the appellant’s service credit.
0032 IAF, Tab 9 at 56-60. However, as of September 2019, the agency could not
determine whether the appellant had paid a deposit for all periods of service.
Id. at 47, 67-71. In June 2020, he filed a complaint with the Office of Special
Counsel asserting that the agency ceased helping him correct his service
computation date after he contacted Senator Heinrich. 0032 IAF, Tab 1 at 10.
¶4 Subsequently, in November 2020, the appellant filed an appeal alleging that
the agency failed to credit him with 1133 days. 0032 IAF, Tab 1. The regional
office separately docketed the appeal as an IRA appeal and a USERRA appeal.
0032 IAF, Tab 15; Templeton v. Department of the Air Force, MSPB Docket
No. DE-4324-21-0067-I-1, Initial Appeal File (0067 IAF), Tabs 1, 6.
4
The administrative judge made a preliminary finding that the Board has
jurisdiction over both appeals. 0032 IAF, Tab 15.
¶5 In January 2021, the parties entered into two substantially similar
settlement agreements. 0032 IAF, Tab 18 at 4-7, Tab 20 at 4-7. In exchange for
the appellant withdrawing his appeals, the agency agreed to “complete any
documentation needed to correct [his] creditable military service to 1133 days”
and “request this correction from the Defense Finance and Accounting Services
(DFAS) within . . . 45 days” in both agreements. 0032 IAF, Tab 18 at 4-5,
Tab 20 at 4-5. 3 The agency also agreed to provide the appellant with a lump sum
payment of $300 dollars in the IRA agreement, 0032 IAF, Tab 18 at 4, and status
updates to the appellant every 14 days in the USERRA agreement, 0032 IAF,
Tab 20 at 5. The administrative judge then issued a substantively identical initial
decision in each appeal, dismissing the appeals as settled and entering the
settlement agreements into the record for enforcement purposes. 0032 IAF,
Tab 21, Initial Decision; 0067 IAF, Tab 10, Initial Decision. Neither party
petitioned for review, and the initial decisions became the final decisions of the
Board. 5 C.F.R. § 1201.113 (providing that, absent a timely filed petition for
review, the initial decision generally becomes the Board’s final decision within
35 days after issuance).
¶6 The agency submitted the payment voucher for the $300 dollars and
the documentation to DFAS to increase the appellant’s creditable FERS service
by 1133 days. Templeton v. Department of the Air Force, MSPB Docket
No. DE-1221-21-0032-C-1, Compliance File (CF), Tab 5 at 8-14. In
February 2021, DFAS advised the agency that the appellant ’s deposit resulted in
1124 days of creditable FERS service. Id. at 16, 25. On April 11, 2021, the
appellant filed separate petitions for enforcement of the parties’ settlement
3
To the extent the initial decisions, settlement agreements, and other documents and
pleadings are identical in these appeals, we will cite to the record in the appellant’s IRA
appeal for the sake of clarity and simplicity.
5
agreements, raising the same issue. Specifically, he alleged that the agency failed
to “provide[] the requested relief.” CF, Tab 1 at 3. The agency responded,
submitting evidence and argument to show that it had complied with the
settlement agreements by timely submitted documentation to DFAS, with
follow-up notices to the appellant. CF, Tab 5. According to the agency, it
disagreed with DFAS as to whether the appellant’s FERS credit for military
services was 1133 days as the agency calculated, or 1124 days, as DFAS
calculated. Id. at 5, 21, 25.
¶7 In substantively identical compliance initial decisions, the administrative
judge found that the appellant failed to establish the agency breached the
settlement agreements and denied his petitions for enforcement. CF, Tab 9,
Compliance Initial Decision (CID) at 2, 4-5. Specifically, she found it undisputed
that the agency timely provided DFAS with the promised documentation and the
appellant with status updates in accordance with t he terms of the agreement.
CID at 4. She further concluded that the parties did not dispute that DFAS’s
calculation of 1124 days of service credit were correct. Id.¶8 The appellant has filed the same petition for review of the compliance
initial decision in each appeal. Compliance Petition for Review (CPFR) File,
Tab 1. The agency has responded, and the appellant has replie d. CPFR File,
Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The parties’ settlement agreement must be set aside for mutual mistake of fact.
¶9 Federal employees covered under FERS can receive credit for military
service performed after 1956 by paying “a deposit (including interest, if any)” of
3% of military basic pay before separation. 4 Simpkins v. Department of Labor,
4
Joinder of two or more appeals filed by the same appellant may be appropriate when
joinder would expedite processing of the appeals and would not adversely affect the
interests of the parties. Boechler v. Department of the Interior, 109 M.S.P.R. 542, ¶ 14
(2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We
6
107 M.S.P.R. 651, ¶ 19 (2008); 5 U.S.C. §§ 8411(c)(1)(B), 8422(e)(1)(A);
5 C.F.R. § 842.307(b). Here, the dispute as to the appellant’s FERS credit
occurred because the agency appeared to calculate the appellant’s FERS credit
using calendar days, and thus, believed he was entitled to 1133 days. 0032 IAF,
Tab 1 at 5; CF, Tab 5 at 43-45. DFAS calculated his FERS credit as 1124 days,
based upon a 30-day month in accordance with the Department of Defense
Financial Management Regulation, DoD 7000.14-R, volume 7A, chapter 1.
CF, Tab 8 at 4, 7. There is some support for DFAS’s calculation. See 5 U.S.C.
§ 8411(a)(1) (providing that “[t]he total service of an employee or Member is the
full years and twelfth parts thereof, excluding from the aggregate the fractional
part of a month, if any); Begley v. Office of Personnel Management, 60 F.3d 804,
805-06 (Fed. Cir. 1995) (upholding the Office of Personnel Management’s
interpretation of the same language in 5 U.S.C. § 8332(a), governing service
credit under the Civil Service Retirement System, as providing for 30 days’ credit
for each full calendar month of work). However, we need not resolve here the
question of how to properly calculate the number of days per month for purposes
of FERS service credit because we must void the agreement as relying on
a mutual mistake of fact.
¶10 A settlement agreement is a contract between the parties that may be set
aside or voided only on the basis of certain limited grounds, including, as relevant
here, a mutual mistake of material fact under which both parties acted. Vance v.
Department of the Interior, 114 M.S.P.R. 679, ¶ 12 (2010). A mutual mistake of
fact is a shared, mistaken belief of the parties regarding a material assumption of
fact underlying their agreement. Id. A mistake of fact is material if it involves
a “basic assumption” underlying an agreement. Brady v. Department of the Navy,
find that these compliance appeals, based on the same underlying military service
deposit and involving substantially similar settlement agreements, initial decisions, and
petitions for review, meet the regulatory criteria; therefore, we join them.
7
95 M.S.P.R. 619, ¶ 8 (2004). A settlement term is material when it is central to
the agreement and numerous other provisions depend on it. Id.¶11 The relevant provision of the settlement agreements provided that the
agency would submit the documentation to DFAS to correct the appellant’s
creditable military service to 1133 days. 0032 IAF, Tab 18 at 5, Tab 20 at 4 -5.
The settlement agreements did not specify what would happen if the appellant
was not entitled to 1133 days. 0032 IAF, Tab 18 at 5, Tab 20 at 4 -5. Although
they contemplated that the appellant might be owed a refund or be required to pay
additional deposits in order to receive credit for the service dates at issue, the
agreements were premised on the assumption that, based on the military dates of
service at issue, DFAS would credit the appellant with 1133 days of FERS
service. CF, Tab 5 at 13, 40. Thus, both parties believed that, by taking the steps
outlined in the agreement, the appellant would receive 1133 days of creditable
military service based on his military service dates. Id. at 5, 22-28; 0032 IAF,
Tab 1 at 10, Tab 7 at 3. Furthermore, there is nothing in the agreement s that
suggest that the parties intended the result that the appellant’s entitlement would
be 9 days less than they both calculated.
¶12 Thus, it appears the parties executed their settlement agreement s under
a mutual mistake of material fact, i.e., that DFAS would process 1133 days of
FERS service credit. 5 Cf. Vance, 114 M.S.P.R. 679, ¶¶ 12, 14-16 (finding
5
We have alternatively considered whether the error here is one of law regarding how
to apply the relevant statutes and regulations for crediting the appellant’s military
service. However, we need not resolve whether the mistake here was legal or factual in
nature, because a mutual mistake of law that goes to the heart of the agreement, as the
error does here, also requires that it be set aside. Potter v. Department of Veterans
Affairs, 111 M.S.P.R. 374, ¶ 9 (2009). We observe that there appears to be another
fatal flaw regarding the agreement settling the appellant’s USERRA appeal. That
agreement requires the agency to process the appellant’s military service credit without
providing any additional benefits to the appellant. 0032 IAF, Tab 20 at 4-7. Arguably,
the agency was obligated to process the appellant’s service credit even absent the
agreement; therefore, the agreement may lack consideration for the appellant’s waiver
of his Board appeal rights. See Black v. Department of Transportation, 116 M.S.P.R.
8a settlement agreement had to be set aside when both part ies may have operated
under a mistake of fact that the appellant could have a clean employment record
or, alternatively, the agency acted in bad faith in failing to advise the appellant
that his assumption that he could have a clean record was mistaken). Therefore,
we find that the settlement agreements must be set aside based on mutual mistake
of a material fact. Ordinarily, a finding that a settlement agreement must be set
aside results in the reinstatement of the underlying appeal. Id., ¶ 16. However,
when a settlement agreement must be set aside because of the failure of
an essential part of that agreement, but the appellant has obtained other benefits
pursuant to that agreement, the Board has found it appropriate to offer the
appellant a choice between reinstating his appeal or accepting the settlement
agreement as is. Id.¶13 Accordingly, remand of the reopened appeals is necessary. On remand, the
administrative judge shall inquire whether the appellant wishes to reinstate his
IRA and USERRA appeals or accept the parties’ settlement agreement s
notwithstanding the fact that, according to DFAS, he is not entitled to 1133 days.
Alternatively, the parties may choose to negotiate a new settlement agreement.
The administrative judge shall then issue a new initial decision.
87, ¶¶ 17-18 (2011) (explaining that a waiver of appeal rights was unenforceable when
there was no consideration for the employee’s waiver).
9
ORDER
¶14 For the reasons discussed above, we remand the appellant’s reopened
appeals to the field office for further adjudication in accordance with this Remand
Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.