UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAN SANDERS,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-531D-12-0684-C-1

DATE: September 5, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Dan Sanders, Lodi, New Jersey, pro se.

Kevin D. Mack, Esquire, Sacramento, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the 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, and based on the following 

points and authorities, 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. Except as expressly modified by this Final Order, 

we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant filed an appeal with the Board on July 23, 2012, challenging 

his performance appraisal rating and alleging that the agency had improperly 

denied his within-grade increase, effective March 25, 2012. Sanders v. 

Department of the Interior, MSPB Docket No. SF-531D-12-0684-I-1, Initial 

Appeal File (IAF), Tab 2, Tab 4, Subtabs 4b, 4h. On November 19, 2012, the 

parties entered a written settlement agreement resolving both the appellant’s 

Board appeal and an informal equal employment opportunity (EEO) complaint 

that the appellant had filed with the agency’s EEO office. IAF, Tab 18. The 

settlement agreement provided that the agency would take the following actions 

within 30 days of the execution of the agreement: (1) change the appellant’s 

performance ratings for fiscal years 2010-2011 and 2011-2012 to “fully 

successful”; and (2) change the appellant’s step level from 4 to 5, effective 

July 25, 2012, thus entitling the appellant for back pay for earnings owed back to 

that date. IAF, Tab 18 at 4. In addition, the agreement provided that the 

appellant would report to a different supervisor and would attend two sessions on 
3

supervisory training. Id. at 5-6. The agreement also provided that the appellant 

would withdraw his pending Board appeal and his informal EEO complaint. Id.

at 3. 

¶3 The administrative judge issued an initial decision dated November 21, 

2012, dismissing the appeal as settled and entering the agreement into the record 

for enforcement purposes. IAF, Tab 19, Initial Decision (ID). The administrative 

judge found that the settlement agreement was lawful on its face, that the parties 

had freely entered into the agreement and understood its terms, and that the 

agreement met the criteria for inclusion in the Board’s record. ID at 2. The 

initial decision dismissing the appeal as settled became final on December 26, 

2012, when neither party filed a petition for review. ID at 2.

¶4 The appellant filed this petition for enforcement on July 15, 2013, alleging 

that the agency had breached the settlement agreement by failing to change his 

performance rating within 30 days of the execution of the settlement agreement, 

and by harassing him on an ongoing basis. Sanders v. Department of the Interior, 

MSPB Docket No. SF-531D-12-0684-C-1 (C-1), Compliance Appeal File (CAF), 

Tab 1. In particular, the appellant alleged that the agency harassed him by 

placing him on administrative leave, proposing his removal, and ultimately 

forcing him to transfer to another agency in order to “get out of [his] negative 

work environment.” CAF, Tab 1 at 1-4, Tab 7 at 1-7. In support of his 

harassment claim, the appellant further alleged that his new supervisor instructed 

him not to send emails to his former supervisor. CAF, Tab 11 at 2.

¶5 The administrative judge issued a compliance initial decision denying the 

petition for enforcement. CAF, Tab 13, Compliance Initial Decision (CID). She 

found that, although the agency complied with the provision of the agreement 

requiring it to change the appellant’s performance ratings outside the period 

specified in the settlement agreement, the agency had nonetheless ultimately 

complied with that provision of the agreement. CID at 4-5. She also found that 

the appellant had not established a breach of the settlement agreement in 
4

connection with any alleged harassment. CID at 5-8. The appellant has filed a 

petition for review of the compliance initial decision. C-1, Compliance Petition 

for Review (CPFR) File, Tab 1.¶. 

ANALYSIS

¶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 which has been entered into the record in the same manner 

as a final Board decision or order. Id. Where 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.

Although the agency materially breached the settlement agreement by failing to 

prepare and process the appellant’s new performance ratings within 30 days of 

the execution of the agreement, the agency is now in compliance and there is no 

further relief available to the appellant.

¶7 In order to establish a breach of a settlement agreement, the petitioning 

party “must show material noncompliance” with a term of the contract. 

Walker-King v. Department of Veteran Affairs, 119 M.S.P.R. 414, ¶ 9 (2013). A 

breach of a settlement agreement is material when it relates to a matter of vital 

importance or goes to the essence of the contract. Kitt v. Department of the 

Navy, 116 M.S.P.R. 680, ¶ 11 (2011). 

¶8 In his Board appeal, the appellant identified his dissatisfaction with his 

performance ratings as one of the bases for his appeal. IAF, Tab 2. Thus, the 

changes to the performance ratings were of vital importance to the contract. See 

Burke v. Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 11 (2014) (finding 

that the removal of a reprimand from the appellant’s Official Personnel File went 

to the essence of the parties’ settlement agreement resolving the appellant’s 
5

individual right of action appeal where the appellant identified the reprimand as 

one of the personnel actions that the agency allegedly took against him in 

retaliation for making protected disclosures). Although the settlement agreement 

specifically required the agency to prepare and process the appellant’s new 

performance ratings within 30 days of the execution of the settlement agreement

(i.e., by December 19, 2012), the agency did not make those changes until 

January 18, 2013. See CAF, Tab 1 at 57, 59. We find that, because the changes 

to the appellant’s performance ratings went to the essence of the contract, the

agency’s failure to make those changes within 30 days, as required by the 

contract, was a material breach of the agreement. See Kitt, 116 M.S.P.R. 680, 

¶¶ 2-3, 9, 11 (finding that the agency materially breached a settlement agreement 

by retaining a record of the appellant’s removal despite a provision in the 

agreement requiring it to change the removal to a 30-day suspension). Because 

the agency breached a material provision of the settlement agreement, the 

appellant is not required to establish that the breach caused him actual harm. See 

Mullins v. Department of the Air Force, 79 M.S.P.R. 206, ¶ 11 (1998) (the breach 

was material not because it resulted in a monetary loss but because the breached 

provision was material to the agreement).

¶9 When one party commits a material breach of a settlement agreement, the 

other party ordinarily is entitled to either enforce the settlement agreement or to 

rescind it and to reinstate the appeal. Kitt, 116 M.S.P.R. 680, ¶ 12. If a 

settlement agreement is rescinded, the settlement terms become inoperative, and 

the parties are essentially restored to the status quo ante. Id. An appellant who 

chooses to rescind a settlement agreement risks losing any benefits he received 

under the agreement. Id. If the appellant chooses to rescind the agreement, then 

his Board appeal must be adjudicated on the merits. Id.

¶10 In this case, the appellant has stated that he is seeking compensatory 

damages and reinstatement of his informal EEO complaint. CAF, Tab 1 at 1, 4,

Tab 11 at 3; CPFR File, Tab 1. The actions the appellant asks the Board to take 
6

are not within its authority. See Smith v. Department of the Army, 72 M.S.P.R. 

676, 679 (1996) (the Board lacks authority to award damages for breach of a 

settlement agreement). Further, although the appellant has repeatedly stated that 

he would like his EEO complaint reinstated, he has never indicated that he would 

like his Board appeal reinstated. Thus, it appears that the appellant does not wish 

to reinstate his Board appeal. Therefore, the Board will not order rescission of 

the settlement agreement and reinstatement of the appellant’s Board appeal. 2

 See 

Burke, 121 M.S.P.R. 299, ¶ 13. Furthermore, because the agency has already 

effected the changes to the appellant’s performance ratings, there is no 

meaningful relief the Board can provide, and the appellant’s petition for 

enforcement regarding the changes in his performance ratings is, therefore, moot. 

See id. (citing Bables v. Department of the Army, 86 M.S.P.R. 171, ¶¶ 19-20 

(2000) (dismissing a petition for enforcement as moot despite the agency’s 

delayed compliance in purging a document from the appellant’s file)).

The administrative judge otherwise correctly denied the appellant’s petition for 

enforcement. 

¶11 In support of his petition for enforcement, the appellant argued that the 

agency discriminated against him and harassed him both before and after the 

settlement agreement in an effort to make him quit his position. CAF, Tab 1 at 

1-3, Tab 7 at 1-7, Tab 11 at 1-3. It is well settled that implicit in any agreement, 

as under other contracts, is a requirement that the parties fulfill their respective 

contractual obligations in good faith. Kuykendall v. Department of Veterans 

Affairs, 68 M.S.P.R. 314, 323 (1995). A party may breach a settlement agreement 

by acting in bad faith concerning a settlement term, and an appellant may 

establish that an agency breached the settlement agreement by showing that the 

 2

It also would be infeasible to restore the parties to the status quo ante, given some of 

the terms of the agreement (e.g., the change in the appellant’s supervisor, his attendance 

at two sessions on supervisory training) and the fact that the appellant has transferred to 

another agency. See IAF, Tab 18 at 5-6; CAF, Tab 1 at 1, Tab 7 at 3.
7

agency’s post-settlement harassment and retaliation against him constituted 

bad-faith noncompliance with a term of the agreement. Id. at 323-24. “Bad 

faith” is not simply bad judgment or negligence but instead implies conscious 

wrongdoing because of dishonest purpose or moral obliquity. See Silva v. U.S. 

Postal Service, 59 M.S.P.R. 268, 272 (1993) (quoting Black’s Law Dictionary 

(6th Ed.), aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). A mere showing of some 

frictions, misunderstandings, or unpleasantness between the appellant and other 

employees or management is insufficient to establish bad-faith noncompliance 

with a term of the agreement. Stasiuk v. Department of the Army, 118 M.S.P.R. 

1, ¶ 7 (2012). The Board may only consider the appellant’s allegations that the 

agency’s post-settlement actions constituted retaliation for filing and settling his 

Board appeal to the extent that his allegations pertain to the alleged breach of the 

settlement agreement. Burke, 121 M.S.P.R. 299, ¶ 15.

¶12 The administrative judge found that the appellant failed to show that the 

agency engaged in bad faith in implementing a term of the settlement agreement. 

CID at 7. Specifically, the administrative judge found that some of the incidents 

of alleged harassment, such as his placement on administrative leave and his 

proposed removal, are the subject of an EEO complaint the appellant filed in 

2013, and she explained that the Board lacks jurisdiction to decide those claims in 

a petition for enforcement. CID at 8 (citing Walker-King, 119 M.S.P.R. 414, 

¶ 15). The administrative judge further found that the appellant’s remaining 

allegations either did not relate to the agency’s implementation of a term of the 

settlement agreement or are in the nature of a friction or unpleasantness (e.g., his 

claim that his new supervisor directed him not to send emails directly to his 

former supervisor). CID at 8.

¶13 On review, the appellant does not specifically challenge (and we discern no 

reason to disturb) the administrative judge’s explained finding that the appellant 

failed to meet his burden of proving that the agency’s actions constituted 

bad-faith noncompliance with the parties’ settlement agreement. Rather, the 
8

appellant argues that the motivation for these actions “can only be fully 

comprehended by reinstatement of the [informal] EEO complaint.” CPFR File, 

Tab 1. As previously stated, however, the Board does not have the authority to 

reinstate that complaint.

¶14 Therefore, we dismiss as moot the appellant’s petition for enforcement 

concerning the changes to his performance ratings and AFFIRM the compliance 

initial decision regarding the appellant’s claim of bad-faith noncompliance with 

the settlement agreement.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. 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: 

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 
9

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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board