February 2000, Final Unappealable MSPB
Decision
Last Updated 12/08/03
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85 MSPR 171 (2000) UNITED STATES OF AMERICA DATE: FEB 3, 2000 JOSEPH P. CARSON, Appellant versus DEPARTMENT OF ENERGY, Agency DOCKET NUMBERS(1) SL-1221-94-0179-B-1 AT-1221-98-0250-W-1 AT-1221-96-0948-W-3 AT-1221-98-0623-W-1 SL-1221-94-0179-C-2 AT-1221-96-0948-C-1 AT-1221-98-0250-C- 1 AT-1221-98-0623-C-1 After full consideration, we find that the appellant's petitions for review in MSPB Docket Nos. SL-1221-94-0179-B- 1, AT-1221-96-0948-C- 1, AT-1221-98-0250-C-1, and AT-1221-98-0623-C-1, do not meet the criteria for review set forth at 5 C.F.R. 1201.115. We therefore DENY the petitions for review in those cases. Although there is a question as to the timeliness of the petition for review in No. SL-1221-94-0179-B-1, we have not resolved the issue, and instead have denied the petition on the merits. After full consideration, we find that the agency's petition for review in MSPB Docket Nos. AT-1221-98-0250-W-1, AT-122 1-96-0948-W-3, and AT-1221-98-0623-W-1, does not meet the criteria for review set forth at 5 C.F.R. 1201.115. We therefore DENY the petition for review in those cases. The appellant has also filed a request that the Board reopen and reconsider its decision in Carson v. Department of Energy, 79 M.S.P.R. 502 (1998). That request will be disposed of separately. Below, we address the appellant's petition for review of the July 15, 1999 compliance initial decision in MSPB Docket No. SL-1221-94-0179-C-2. The appellant filed a petition for enforcement of a 1994 settlement agreement, claiming that the agency breached its implied duty of good faith and fair dealing in negotiating and implementing the agreement. He also claimed that the agency violated the expunction and confidentiality provisions of the agreement. MSPB Docket No. SL-1221-94-0179-C-2, Compliance File, Tab 1. The administrative judge (AJ) dismissed the petition for enforcement as premature. Id., Tab 2. The appellant has petitioned for review of that decision, arguing that the AJ misconstrued his petition for enforcement. Petition for Review File, MSPB Docket No. SL-122 1-94-0179-C-2, Tab 1. The agency has not responded to the petition for review. We agree with the appellant that his petition for enforcement should not have been dismissed as premature. The AJ was correct that he could not considered the agency's alleged breach of its implied obligation of good faith and fair-dealing because that was the subject of a pending petition for review when the appellant filed his petition for enforcement. However, the settlement agreement included the following provisions which were enforceable because they had been left undisturbed by the full Board's decision finding part of the agreement unenforceable, Carson v. Department of Energy, 79 M.S.P.R. 502 (1998), and they were not the subject of a pending petition for review when the appellant filed his petition for enforcement:
Consolidated File, MSPB Docket Nos. AT-1221-98-0250-W- 1, AT-1221-96-0948-W-3, AT-1221-98-0623-W-1 , Appellant's Exhibit CB. The appellant claimed below that the agency violated provisions 2 and G by informing William Cooper, the appellant's supervisor in 1992 and co-worker in 1991 and 1993, "of its particulars at the time it was signed." MSPB Docket No. SL-1221-94-01 79-C-2, Compliance File, Tab 1 at 4. The appellant based this assertion on the agency representative's summary of the appellant's original contested performance ratings for 1991-92 and of the parties' settlement agreement in the agency's petition for review in a consolidated case, MSPB Docket Nos. AT-1221-98-0250-W-1; AT-1221-96-0948-W-3, AT-1221-98-0623-W-1 and on Cooper's hearing testimony in that case. As to the former, the agency representative's mention of the appellant's original performance ratings for 1991-92 and the parties' settlement agreement in the "Statement of Facts" section of the agency's petition for review was not a breach of the confidentiality or expunction provisions of the settlement agreement, since the Board was already privy to the contents of the agreement, and the agency's petition for review in any event was not a "file" for purposes of the expunction clause. As to the latter, Cooper testified that he had "hearsay evidence," in the form of "[h]all talk and scuttlebutt," but not from his superiors, that the agency had settled the appellant's complaints and grievances with respect to his 1991-92 performance ratings. Hearing Transcript (Nos. AT-1221-98-0250-W-1, AT-1221-96-0948-W-3, AT-1221-98-0623-W-1 at 496, 538. He testified without rebuttal that he had no "direct knowledge of" and never saw a copy of the settlement agreement. Id. at 498, 538; Agency's Exhibit 54 (Nos. AT-1221-98-0250-W-1, AT-1221-96-0948-W-3, AT-1221-98-0623-W-1). We find, under these circumstances, that the appellant has not shown that any knowledge of the terms of the settlement agreement on Cooper's part was the result of a breach of the confidentiality and expunction provisions of that agreement by the agency. Accordingly, the petition for enforcement is DENIED. (Nos. AT-1221-98-0250-W-1; AT-1221-96-0948-W-3; AT-1221-98-0623-W-1) We ORDER the agency to cancel the letter of admonishment, to cancel the directed reassignment, and to return the appellant to the full range of duties and work assignments consistent with his position description and past assignments. See 5 U.S.C. 1221(e)(l); Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board's Order and of the actions it took to carry out the Board's Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. 1201.181(b). No later than 30 days after the agency tells the appellant that it has fully carried out the Board's Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board's Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board's Order, and should include the dates and results of any communications with the agency. 5 C.F.R. 1201.182(a). This is the final decision of the Merit Systems Protection Board in these appeals. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 1201.113(c)). You may be entitled to be paid by the agency your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), ord 1214(g). The regulations may be found at 5 C.F.R. 1201.202. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. This decision is being referred to the Special Counsel under 5 U.S.C. 1221, "to investigate and take appropriate action under [5 U.S.C.] section 1215," based on the determination that "there is reason to believe that a current employee may have committed a prohibited personnel practice" under 5 U.S.C. 2302(b)(8). You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address: The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. 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). You may read this law as well as review other related material at our web site, <http://www.mspb.gov>. For the Board Robert F. Taylor Clerk of the Board Washington, D.C. 1. We have joined these eight appeals brought by the same appellant. See 5 U.S.C. 7701(f)(2) |
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Questions or comments? Contact Joseph P. Carson, P.E.