UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CALVIN J. MOSLEY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0752-10-0469-C-1

DATE: September 28, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Calvin J. Mosley, Gary, Indiana, pro se.

Janet M. Kyte, Esquire, Hines, Illinois, 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 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 interpretation of statute or regulation 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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, 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 and AFFIRM 

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

§ 1201.113(b).

¶2 The appellant appealed his removal from a position as a Social Worker, 

GS 0185-09, with the agency’s Gary Area Vet Center in Gary, Indiana. Mosley v. 

Department of Veterans Affairs, MSPB Docket No. CH-0752-10-0469-I-1, Initial 

Appeal File (IAF), Tab 1, Tab 9, Subtabs 4a-4b. He was removed for failure to 

obtain licensure as a social worker, which was required for his position. IAF,

Tab 9, Subtab 4e. After the parties executed a settlement agreement, which was

entered into the record, the Board dismissed the appeal as settled. See IAF, 

Tabs 13-14. In the settlement agreement, the appellant agreed to withdraw his 

Board appeal. IAF, Tab 13 at 2. In return, the agency agreed to remove the 

Standard Form 50 (SF-50) reflecting the appellant’s removal from his Official 

Personnel Folder and replace it with an SF-50 reflecting that he voluntarily 

resigned from the agency for personal reasons. Id. at 2. The agency also agreed

not to object to his application for Illinois unemployment insurance benefits. Id.

¶3 The appellant sought review of the initial decision dismissing the appeal as 

settled. Petition for Review (PFR) File, Tab 1. The Board considered the 

appellant’s petition for review and found that he failed to meet his burden of 

showing that the settlement agreement should be invalidated. Mosley v. 
3

Department of Veterans Affairs, MSPB Docket No. CH-0752-10-0469-I-1, Final 

Order at 2-3 (Jan. 21, 2011) (located at PFR File, Tab 4). The appellant filed this 

petition for enforcement, claiming that the agency breached the settlement 

agreement when it failed to pay him 1 year’s salary in the amount of $57,193.00 

or make any other monetary settlement. See Compliance File (CF), Tab 1. He 

admitted, however, that the agency had met the other terms of the settlement 

agreement. Id. He also asked the Board to invalidate the settlement agreement 

and reopen his appeal. Id.; CF, Tab 8 at 3. 

¶4 The administrative judge properly denied the petition for enforcement. See

CF, Tab 9, Compliance Initial Decision. To the extent that the appellant is still 

seeking to invalidate the settlement agreement, see Compliance Petition for 

Review File (CPFR), Tab 1 at 1, 3, the issue was litigated when the Board 

reviewed the administrative judge’s dismissal of the appeal as settled. The 

doctrine of res judicata precludes parties from relitigating issues that were, or 

could have been, raised in the prior action, and is applicable if: (1) the prior 

judgment was rendered by a forum with competent jurisdiction; (2) the prior 

judgment was a final judgment on the merits; and (3) the same cause of action 

and the same parties or their privies were involved in both cases. Peartree v. U.S. 

Postal Service, 66 M.S.P.R. 332, 337 (1995). Here, all prongs of the test have 

been met.

¶5 As for the appellant’s petition for enforcement, a settlement agreement is a 

contract, and as such, the Board will enforce it according to 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 that has been entered into the record in the same manner as a final 

Board decision or order. Id. The agreement here has been entered into the record 

for enforcement purposes, as the parties intended. IAF, Tab 14 at 1-2; see IAF, 

Tab 13 at 2. Where the appellant alleges noncompliance with the agreement, the 

agency must produce relevant material evidence of its compliance or show that 
4

there was good cause for noncompliance. Allen, 112 M.S.P.R. 659, ¶ 7. The 

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

preponderance of the evidence. Id.

¶6 In construing a settlement agreement, the Board looks first to the terms of 

the agreement itself to determine the intent of the parties at the time they 

contracted. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir. 

1988). The Board will consider extrinsic evidence of intent (evidence from 

outside of the four corners of the agreement) only if the terms of the agreement 

are ambiguous. Id.; see, e.g., Mital v. Department of Agriculture, 116 M.S.P.R. 

589, ¶¶ 6-9 (2011).

¶7 The settlement agreement required the agency to undertake only the two 

actions that the appellant acknowledged have been performed: revising his SF-50 

to indicate he resigned for personal reasons and refraining from contesting his 

application for unemployment benefits. See IAF, Tab 13 at 2. The settlement 

agreement does not state that the agency agreed to pay the appellant a monetary 

settlement. Id. at 2-4. Indeed, in paragraph 2, the appellant specifically waived 

“any and all rights to seek any personnel records adjustment or any other 

remedies for any matters arising out of or related to his employment with the 

Agency.” Id. at 2 (emphasis added). In paragraph 10, he acknowledged that the 

agreement constituted “the entire understanding between the parties, and there are 

no other terms or commitments, verbal or written.” Id. at 3. Finally, in 

paragraph 9, the appellant acknowledged he entered into the agreement 

“knowingly and voluntarily.” Id.

¶8 After the record closed on review, the appellant submitted two motions for 

leave to submit additional pleadings. In the first motion, he requests an 

opportunity to submit “additional evidence and an additional witness to establish 

that due process was obstructed in the initial ruling.” The motion simply restates

the arguments he made in his petition for review. CPFR File, Tab 1 at 1, 3, 

Tab 8. As we have explained, he has already litigated the matter of whether the 
5

settlement agreement should be invalidated and the appeal reopened. In the 

second, he asks for an opportunity to restructure his petition for review so that the 

Board might better understand his arguments. CPFR File, Tab 10. Again, it 

appears that he is requesting one more opportunity to present arguments that have 

been addressed above. We deny both motions. 

¶9 Because the agreement set forth the agency’s obligations clearly and 

without ambiguity, the Board will not look beyond the four corners of the 

agreement. Mital, 116 M.S.P.R. 589, ¶ 6. The appellant’s arguments are 

unavailing and we thus deny the petition for review and affirm the initial 

decision. 2

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

States 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 

 2 The petition for review includes several attached documents pertaining to the 

appellant’s underlying removal appeal. The oldest of these documents is dated 

February 4, 2010. The documents do not meet the Board’s definition of new and 

material evidence, or otherwise justify the granting of this petition for review. See

5 C.F.R. § 1201.115(d) (“Situations in which the Board may grant a petition or cross 

petition for review include . . . a showing that [n]ew and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not available 

when the record closed.”).
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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 

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 an appeal to the 

United States 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.

______________________________

William D. Spencer

Clerk of the Board