September 1998, DOE's second Material Breach

Last Updated 12/08/01

79 MSPR 502 (1998) UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSEPH CARSON, Appellant, v. DEPARTMENT OF ENERGY, Agency. DOCKET NUMBER: SL-1221-94-0179-X-1 DATE: SEPTEMBER 11, 1998 Robert C. Seldon, Esquire, and Sarah Levitt, Esquire, Project on Liberty and the Workplace, Washington, D.C., for the appellant. Isiah Smith, Esquire, Washington, D.C., for the agency. BEFORE Ben L. Erdreich, Chairman Beth S. Slavet, Vice Chair Susanne T. Marshall, Member OPINION AND ORDER On January 26, 1998, the Board issued an Opinion and Order in this case finding that the agency had breached a settlement agreement. The appellant was ordered to inform the Board whether he wanted to go forward to enforce the remaining terms of the agreement, or to rescind the agreement and reinstate his appeal. Carson v. Department of Energy 77 M.S.P.R. 453 (1998). On February 17, 1998, the appellant informed the Board that he wishes to go forward to enforce the terms of the agreement. The appellant suggested that the agency institute a process before a hearing examiner in its Office of Hearings and Appeals in accordance with 10 C.F.R. Part 708. The appellant also noted that the agency did agree to pay certain of the remaining costs incurred by the appellant in his original IRA appeal.(1) The agency submitted a response to the submission in which it states that it does not consent to the appellant's suggested process. In this case, provision 4 of the settlement agreement provided as follows: Mr. Carson's allegations of whistleblower reprisal will be evaluated by the process directed by the secretary of the Department of Energy (i.e. the mechanism described at the PEER Conference which Mr. Thomas McBride is now working on to determine whether they were meritorious. Initial Appeal File, Vol. 3, Tab 12 In the earlier case we found that the process described above was not in place at the time of the settlement agreement and did not materialize. Because the appellant did not agree to the substitute process, we found that the parties have not modified provision 4 and the agency was in breach of that provision. Carson, M.S.P.R. at 458 Normally, when an agency is in breach of a settlement agreement, the appellant has the option of enforcing the agreement or rescinding the agreement and reinstating the underlying appeal. See Fuller v. U.S. Postal Service, 45 M.S.P.R. 611, 614 (1990). We did not order complete enforcement of provision 4 of the settlement agreement, however, because we found that the mechanism contemplated in the settlement agreement did not materialize and there was no mutual assent to the proposed substitute process. Carson, M.S.P.R. at 458. Accordingly, in the circumstances here, the appellant must be given the option of either rescinding the settlement agreement and reinstating the appeal, or accepting the agreement without complete enforcement of provision 4. See Day v. Department of the Air Force, MSPB Docket No. SE-0752-94-0737-C-1, slip op. at 4-7 (May 1, 1998); cf: Gullette v. U.S. Postal Service, 70 M.S.P.R. 569, 577 (1996) (where the appellant could not obtain enforcement of a settlement term as she reasonably interpreted it because enforcement would violate a collective bargaining agreement, she was given the option of rescinding the agreement and reinstating the appeal, or accepting the agreement under the agency's interpretation). In the circumstances of this case, the appellant is entitled to enforcement of the settlement agreement except as to provision 4 (unless the parties agree on a substitute provision) or rescinding the agreement and reinstating his original claim. In over earlier decision the appellant was ordered to inform the Board whether he wanted to go forward to enforce the remaining terms of the agreement, or to rescind the agreement and reinstate his appeal. In his response, the appellant continued to argue that provision 4 should be enforced by an order directing the agency to institute a proceeding before a hearing examiner in its Office of Hearings and Appeals. This particular process was not contemplated by the terms of the settlement agreement and the appellant's response is therefore unresponsive to the Board's Order. In view of the foregoing, we shall remand the proceeding to the Atlanta Regional Office as provided below. ORDER The case is hereby REMANDED. On remand the appellant shall be provided the option of rescinding the agreement and reinstating his appeal. If the appellant chooses that option, the administrative judge should order rescission of the agreement and reinstatement of the appeal. The appellant shall also be provided the option of going forward with the remaining terms of the settlement agreement without the mechanism for resolving his whistleblower allegations specified in provision 4 (unless the parties agree to a substitute mechanism or the appellant accepts the agency's substitute process). If the appellant elects this second option, then the administrative judge shall order the agency to comply with the remaining terms of the settlement agreement.(2) FOR THE BOARD: Robert E. Taylor Washington, D.C. 1. The appellant on May 8, 1998, informed the Board telephonically, that payment has now been received. 2. The appellant and the agency, of course, may also enter into a new settlement agreement.