UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TERESA K. DAY,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DA-0841-15-0596-C-1

DATE: November 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

James R. Hefflin, Newport Beach, California, for the appellant.

Tynika Faison Johnson, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial 

decision, which denied her 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 administrative 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, 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 and AFFIRM the 

compliance initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b).

BACKGROUND

¶2 In 2009, the Office of Personnel Management (OPM) approved the 

appellant’s application for disability retirement under the Federal Employee s’

Retirement System (FERS). Day v. Office of Personnel Management, MSPB 

Docket No. DA-0841-15-0596-I-1, Initial Appeal File (IAF), Tab 6 at 6-8, Tab 13 

at 9. The appellant elected to receive compensation from the Office of Workers’ 

Compensation Programs (OWCP) in lieu of her FERS annuity payments. IAF, 

Tab 13 at 5-8. In March and August 2015, she requested that OPM convert her 

election to FERS. IAF, Tab 6 at 9-16. After OPM apparently did not 

acknowledge her requests, she filed an initial appeal alleging that OPM was

constructively denying her FERS disability retirement benefits. IAF, Tab 1.

¶3 During the telephonic hearing, the parties reached a settlement agreement. 

IAF, Tab 19, Hearing Compact Disc (Oral Settlement Agreement). The 

administrative judge recited and entered into the record the following agreement: 

(1) the appellant’s election of FERS disability retirement benefits was to be 

effective January 1, 2016; (2) OPM was to “take action appropriate to begin the 
3

FERS benefit” by the effective date; and (3) any OWCP benefits that the 

appellant received after the effective date constituted an overpayment. Id. The 

administrative judge issued an initial decision finding that the Board had 

jurisdiction over the appeal and the settlement agreement was legally enforceable,

and dismissing the disability retirement appeal as settled. IAF, Tab 20, Initial 

Decision (ID) at 1-3.

¶4 Less than a week after the initial decision became final, the appellant filed a 

petition for enforcement. ID at 4; Compliance File (CF), Tab 1. The appellant 

alleged that OPM had materially breached the settlement agreement by denying 

her payment of her previously determined monthly annuity of $1,740, by placing 

her in interim pay status, and by requiring her to complete additional paperwork 

before reinstating her full annuity. CF, Tab 1, Tab 5 at 1-2, Tab 9 at 1-3. OPM 

asserted that the appellant’s 2008 application was incomplete and that it needed 

the missing information to finalize her FERS annuity benefit. CF, Tab 4 at 4, 

8‐14.

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

petition for enforcement. CF, Tab 13, Compliance Initial Decision (CID) at 1. 

She found that the settlement agreement did not encompass the calculation of the 

appellant’s annuity, as OPM had not issued a final decision on that issue. CID 

at 3. She also found that the agreement did not preclude OPM from placing the 

appellant in interim pay status or requiring additional information to finalize her 

application and annuity calculation. CID 4-5. The administrative judge therefore 

found that OPM had complied with the settlement agreement. Id.

¶6 The appellant filed a 2-sentence petition for review alleging only that the 

“appeal was wrongly decided based on the evidence that is already in the record.” 
4

Compliance Petition for Review (CPFR) File, Tab 1 at 1. OPM filed an untimely 

response.

2

 CPFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 A petition for review must state a party’s objections to the initial decision, 

including the party’s legal and factual arguments, and it must be supported by 

specific references to the record and any applicable laws or regulations. 

Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 6 (2015), aff’d per 

curiam, 640 F. App’x 864 (Fed. Cir. 2016); 5 C.F.R. § 1201.114(b). The 

appellant’s bare assertion of error does not satisfy these requirements. 

Nonetheless, we have reviewed the parties’ submissions below, and we find that 

the administrative judge properly denied the appellant’s petition for enforcement.

¶8 The Board has the authority to enforce an oral or a written settlement 

agreement that has been entered into the record in the same manner as a final 

Board decision or order. Allen v. Department of Veterans Affairs, 112 M.S.P.R. 

659, ¶ 7 (2009), aff’d per curiam, 420 F. App’x 980 (Fed. Cir. 2011); Brown v. 

Department of the Navy, 60 M.S.P.R. 461, 462 (1994). When an 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. Allen, 112 M.S.P.R. 659, ¶ 7. The ultimate 

burden, however, remains with the appellant to prove material breach by a 

preponderance of the evidence. Id.

¶9 We agree with the administrative judge that the appellant has not proven 

that OPM materially breached the settlement agreement. A settlement is a 

contract, and as such, it will be enforced in accordance with contract law. 

Sweet v. U.S. Postal Service, 89 M.S.P.R. 28, ¶ 9 (2001). In interpreting a 

 

2

 We have considered OPM’s untimely response and determined that the argument 

therein does not address the merits of the appellant’s petition. Rather, OPM asserts that 

its finalizing the calculation of the appellant’s annuity has been delayed by her multiple 

filings. CPFR File, Tab 4.
5

contract, the Board first looks to its terms to determine the parties’ intent at the 

time they entered into it. Id. Extrinsic evidence of intent should be considered 

only if the terms are ambiguous. Id. The terms of a contract are ambiguous if it 

is susceptible to differing, reasonable interpretations. Id.

¶10 The appellant essentially argued below that the settlement agreement 

required OPM to initiate the previously determined monthly annuity payments of 

$1,740, without further analyzing her application or conducting additional

annuity computations. CF, Tab 5 at 1-2, Tab 9 at 1-3. However, the agreement is 

devoid of any term identifying the specific annuity amount to which the appellant 

is entitled or prohibiting OPM from taking other actions to ensure the proper 

calculation of her annuity payments.

¶11 The agreement’s silence as to the annuity amount or the steps that OPM 

must take does not necessarily render it ambiguous. See Landrith v. Office of 

Personnel Management, 99 M.S.P.R. 76, ¶ 8 (2005) (finding that a divorce decree 

was silent, not ambiguous, as to the specific amount of survivor annuity benefit 

awarded). Rather, it is presumed that the parties are aware of the applicable 

retirement statutes and regulations and intend to incorporate them. Young v. 

U.S. Postal Service, 113 M.S.P.R. 609, ¶ 39 n.4 (2010). As such, the 

administrative judge correctly interpreted the agreement as permitting OPM to 

follow its administrative process to ensure that the appellant is awarded the 

monthly annuity amount to which she is entitled by law. In the absence of a 

reasonable, alternative interpretation, we find that the settlement agreement is 

unambiguous and that we need not consider extrinsic evidence of the parties’ 

intent. See Sweet, 89 M.S.P.R. 28, ¶ 9.

¶12 As permitted by the settlement agreement, OPM demonstrated that it 

recognized the appellant’s FERS disability retirement election, placed her in an 

interim pay status, attempted to obtain additional information to complete her 

application, and was in the process of finalizing her FERS disability retirement 

annuity payment. CF, Tab 4 at 4-14. Upon consideration of this argument and 
6

evidence, we discern no error with the administrative judge’s finding that OPM 

complied with its obligations under the settlement agreement.

¶13 Accordingly, we find that the appellant has not met her burden to show that 

OPM materially breached the settlement agreement, and we affirm the 

administrative judge’s decision to deny the petition for enforcement.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the 

U.S. Court of Appeals for the Federal Circuit. 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 U.S. 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 

U.S. 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.
7

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 

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.

______________________________

Jennifer Everling

Acting Clerk of the Board