UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ROBERT E. REQUARTH,

Appellant,

v.
DEPARTMENT OF THE AR MY,

Agency. DOCKET NUMBER DA

- 0752

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- 0353

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DATE: September 15, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles H. Allenberg , Virginia Beach, Virginia, for the appellant. Kathy M. Wright , Texarkana, Texas, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member

FINAL ORDER ¶1 This case is before the Board on the appellant’s petition to enforce the parties’ settlement agreement resolving his underlying appeal. In a Ma y 4 , 20 22 compliance initial decision, the administrative judge found that the agency ha d not fully complied with the agreement because it impos ed a debt for unpaid health

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

insurance premiums for coverage that the agency acknowledged had been
terminated. Requarth v. Department of the Army , MSPB Docket No. DA

- 0752

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- 1, Compliance File ( CF) , Tab 12, Compliance Initial Decision (CID)
at 5. For the reasons discussed below, we now find the agency in compliance and
DISMISS the appellant’s petition for enforcement.

DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In an October 20, 2021 init ial decision, the administrative judge accepted
into the record for enforcement the parties’ settlement agreement disposing of the underlying dispute. Requarth v. Department of the Army , MSPB Docket
No. DA

- 0752

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- 0353

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- 1, Initial Appeal File, Tab 14 , In itial Decision (ID) . The
initial decision became the final decision of the Board on November 24, 2021, after neither party petitioned for administrative review. ID at 14

. ¶3 On March 11, 2022, the appellant petitioned for enforcement of the settlement agr eement. CF, Tab 1. In the compliance initial decision , the administrative judge found that the agency ha d not fully complied with the agreement because it impos ed a debt for unpaid health insurance premiums for coverage that the agency acknowledged had b een terminated. CID at 12

. The administrative judge therefore ordered the agency to “ take all actions required to resolve the incorrect overpayment determination .” Id

. Neither party filed any
submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to 5 C.F.R. § 1201.183 (b)

- (c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of compliance. Requarth v. Depa rtment of the Army , MSPB Docket No. DA

- 0752

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- 1, Compliance Referral File (CRF), Tab 1. ¶4 In response to the Clerk’s acknowledgment order, see CRF, Tab 1, the agency responded with evidence that it had resolved its incorrect overpayment3

determination . CRF, Tabs 4

- 5. In his reply, t he appellant acknowledged that “it appears the agency has now attained compliance. ” See CRF, Tab 6 at 5

. ¶5 The Board has the authority to enforce a settlement agreement which has
been entered into the record in the same man ner as any final Board decision or
order. Richardson v. Environmental Protection Agency
, 5 M.S.P.R. 248 , 250 (1981). Because a settlement agreement is a contract, the Board will adjudicate an enforcement proceeding relevant to a settlement agreement in accordance with
contract law. See Greco v. Department of the Army
, 852 F.2d 558 , 560 (Fed. Cir. 1988). Under settled contract law, the party alleging breach of a settlement agreement has the burden of proving such breach. Kramer v. Department of t he Navy , 46 M.S.P.R. 187 , 190 (1990). ¶6 As noted above, the appellant no longer challenges the agency’s compliance with the settlement agree ment. Accordingly, we find the agency in compliance and DISMISS the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)( 1) ( 5 C.F.R. § 1201.183 (c)(1)).

NOTICE TO THE APPELL ANT REGARDING

YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for 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), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs w ith the office that issued the initial decision on your appeal.4

NOTICE OF APPEAL RIG HTS 2 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. I f 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 about whether a particular forum is the appropriate one to review your case, you
should contact that f orum 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 t he 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:

2 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 w hich option is most appropriate in any matter.5

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 availabl e 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 decis ion

— 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.

____ , 137 S. Ct. 1975 (2017). If you have a representa tive 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 and6

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 revi ew 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’s7

disposition of allegation s of a prohibited personne l 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 F ederal Circuit or any court of appeals of competent jurisdiction. 3 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. § 7 703 (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 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,” wh ich 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 representat ion in a given case.

3 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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.8

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board