NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3423

CLINT G. KIEFFER, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

Denis P. McAllister , of Glen Cove, New York, for petitioner. Michael A. Carney , Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad Bungard , General Counsel, Rosa M. Koppel , Deputy General Counsel, and Sara B. Rearden , Acting Associate General Counsel. Appealed from: Merit Syst ems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3423 CLINT G. KIEFFER, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
Petition for review of the Merit Syst ems Protection Board in SE0752030320-C-1.

__________________ _________ DECIDED: February 7, 2008

__________________ _________ Before RADER and LINN, Circuit Judges , and WOLLE, Senior District Judge

. ∗ PER CURIAM. The Merit Systems Protection Board di smissed Clint G. Ki effer's petition for enforcement of a settlement agreement as not filed within a reasonable time. Kieffer v. Department of the Interior , MSPB Docket No. SE-0752-03-0320-C-1 (Initial Decision, February 27, 2006; Final Decision, July 13, 2006). Mr. Kieffer waited nine months from the date of the first all eged breach, and six to nine months from the date of the second alleged breach, to file his petition. Because the Board’s decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, this court affirms

.

∗ Honorable Charles R. Wolle, Senior Dis trict Judge, United States District Court for the Southern District of Iowa, sitting by designation.BACKGROUND Mr. Kieffer is a former police office r with the Bureau of Indian Affairs (“BIA”). On August 8, 2002, the BIA proposed to remove Mr. Kieffer from his position, citing unauthorized entry into a private vehicle, taking of another person’s property without au thorization, conversion of said property, and dereliction of duty for failing to safeguar d evidence in violat ion of the BIA Law Enforcement Handbook. On May 5, 2003, the BIA issued a decision letter that sustained the charges but mitigated t he proposed removal to a 60-day suspension. Mr. Kieffer filed an appeal wi th the Board. On July 11, 2003, the parties entered a settlement agr eement to resolve “all i ssues and controversies” relating to Mr. Kieffer’s appeal. Under the agreement, Mr. Kieffer dropped his appeal and the BIA replaced the May 5, 2003 decision letter. The new decision letter suspended Mr. Kieffer for 60 da ys on lesser charges. The settlement agreement contained a confidentia lity provision to keep information related to Mr. Kieffer’s appeal and settlement ag reement confidential. In late 2003, the BIA sent a copy of the new decision letter to the U.S. Attorney’s Office, asking the Office whethe r it would use Mr. Kieffer in future federal court proceedings. Under Giglio v. United States , 405 U.S. 150 (1972), investigative agencies must turn over to prosecutors evidence that could be used to impeach agents involved in a case. T he prosecutor exerci ses discretion to determine disclosure of the impeachment evidence to the defense. AUSA Thomas Rice informed the BI A that the U.S. Attorney’s Office would not be able to use Mr. Kieffer because the actions documented in Mr. Kieffer’s personnel

2006-3423 2folder would need to be disclosed to def ense counsel. This disclosure would undermine Mr. Kieffer’s credibility as a testifying witness. On June 16, 2004, the BIA sent Mr. Ki effer an official notice of proposed removal based on a charge of inability to fulfill an essential function of his position, specifically the pr ovision of testimony in t he federal court system. The official notice suggested that the BIA had gi ven the U.S. Attorney’s Office a copy of Mr. Kieffer’s personnel file, includi ng the new decision letter. Mr. Kieffer responded to the letter, arguing collateral estoppel precluded removal. On September 14, 2004, the BI A notified Mr. Kieffer and his attorney that it disagreed, again citing as support for its de cision that the U.S. Attorney’s Office had reviewed Mr. Kieffer’s personnel file. On March 5, 2005, the BIA removed Mr. Kieffer from his position. On Marc h 28, 2005, Mr. Kieffer filed an appeal of the removal. Three months later, Mr. Kieffer withdrew the appeal, and on July 20, 2005, he filed a petition to enforce the settlement agreement. Mr. Kieffer alleged that the BIA br eached the agreement because “it proposed and sustained the removal” and because it “communicated the contents of the decision letter with the U.S. Attorney’s Office.” The Administrative Law Judge ordered Mr . Kieffer to show cause for his delay in filing the petition for enforcem ent. After considering Mr. Kieffer’s evidence and argument, the Administrative Judge dismissed the petition for enforcement as not filed wi thin a reasonable time. The Administrative Judge found that the June 16, 2004 removal notice showed that the issues involved in his 60-day suspension were not “resolved.” Therefore, a nine-month delay in

2006-3423 3filing the petition was not r easonable. The Administrative Judge also found that Mr. Kieffer had notice of the alleged breach of the confi dentiality provision six to nine months before he filed his appeal. The MSPB denied a petition for review. Mr. Kieffer timely petitioned fo r review in this court, which has jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION This court reviews the Board's decision to ensure that it is not (1) arbitrary, capricious, an abuse of discret ion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Briggs v. Merit Systems Protection Board , 331 F.3d 1307, 1311 (Fed. Cir. 2003). The interpretation of a settlement agreement is a matter of law, which this court reviews without deference. Ki ng v. Department of the Navy , 130 F.3d 1031, 1033 (Fed. Cir. 1997). Unless the contract provides a time limit within which the parties must bring an enforcement action, a petition fo r enforcement must be filed “within a reasonable time of the date of the alleged breach of t he agreement, taking into consideration the petitioning party’s kno wledge of the alleged br each.” Poett v. Merit Systems Protection Board , 360 F.3d 1377, 1380-81 (Fed. Cir. 2004) (citation omitted). This court requires “actual knowledge” to tr igger the time limit to file a petition for enforcement. Id. at 1384. The reasonableness of a delay depends on the circumstances of each case. See Kasarsky v. Merit Sys. Prot. Bd. , 296 F.3d 1331, 1335 (Fed. Cir. 2002).

2006-3423 4Mr. Kieffer asserts that he filed hi s petition for enforcement within a reasonable time. According to Mr. Kieffer, he did not have actual knowledge until March 5, 2005, the effective date of his re moval. Before that date, the BIA’s actions were merely anticipatory and did no t violate the terms of the settlement agreement. In particular, the June 16, 2004, proposal letter was an anticipatory breach because the BIA could have decided not to sustain the removal action. And a mere threat of a breach is not suffici ent to trigger the Petitioner’s obligation to timely file a petition for enforcement. Thus, according to Mr. Kieffer, four months passed between the date on wh ich he had actual knowledge of the alleged breach and the date on which he filed his petition. Mr. Kieffer argues that his pursuit of an appeal of the removal justified the f our-month delay. Further, between the date of the proposal lette r and the date on which he filed the petition, Mr. Kieffer informally attempt ed to dissuade the BIA from taking final action, specifically in a letter dated September 29, 2004. Mr. Kieffer also urges this cour t to consider a new factor in evaluating the reasonableness in a delay in bringi ng an enforcement action. He cites language from this court’s opinion in Poett , which discussed the doctrine of laches in its reasonableness analysis. Mr. Kieffer suggests that this discussion makes a delay reasonable unless it prejud ices the opposing party. Because the BIA knew that Mr. Kieffer was appealing the removal during the four months between the effective date of his re moval and his filing the petition for enforcement, he argues that the BIA coul d not have been prejudi ced. However, Mr. Kieffer suggests that had he explor ed an alternative administrative remedy

2006-3423 5during that time, as opposed to appealing to the Board, the four-month delay may have been unreasonable. Mr. Kieffer does not show that the Board’s decision was arbitrary, capricious, an abuse of discretion, or ot herwise not in accordance with the law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. The Board based its conclusion on two clocks, each triggered by a different alleged breach of the settlement agreement. First, the Board concluded that t he June 16, 2004 notic e of proposed removal provided the first alleged br each, because the document informed him that the issues related to his 60-day suspension were not resolved. This first alleged breach was not anticipatory becaus e it allegedly violated the first paragraph of the settlement agr eement, which purports to resolve “all issues and controversies relating to” Mr. Kie ffer’s suspension appeal. The notice of proposed removal reignited a controversy between the parties concerning issues related to Mr. Kieffer’s prior misconduct because the BIA’s decision that Mr. Kieffer could no longer perform the essent ial functions of his position was based on the U.S. Attorney’s Office’s advice. Thus, the notice of proposed removal amounts to the alleged contractual non performance. In his petition for enforcement, Mr. Kieffer effectively agreed, stating that the BIA “is in breach . . . in that it proposed an d sustained the removal . . . .” Mr. Kieffer did not limit his breach allegation to the BIA’ s sustaining the removal. The Board was correct to

2006-3423 6deny review of the Administrative J udge’s finding that the notice of proposed removal started the clock for Mr. Kieffer to file his petition. This court finds that the Board did not err in denying review of the determination that the nine-month delay bet ween Mr. Kieffer’s receiving the June 16, 2004 notice of proposed removal and filing a petition for enforcement was unreasonable. Mr. Kieffer was represented by counsel throughout the process. In fact, the same counsel represented Mr. Kieffer in his appeal, his petition for enforcement, and in his attempt to dissua de the BIA from taking final action. Although Mr. Kieffer informally attempted to dissuade the BIA from taking final action, the Board has consistently held t hat pursuit of an al ternative resolution with an agency does not constitute good c ause for an untimely filing. See Smith v. Department of Veterans Affairs , 101 M.S.P.R. 366, 371 (2006); Schrum v. Department of the Treasury , 42 M.S.P.R. 103, 107 (1989) ; Maples v. Defense Logistics Agency , 31 M.S.P.R. 667, 671 (1986); Shrider v. United States Postal Service , 26 M.S.P.R. 238, 240 (1985); Couv illion v. Department of the Army , 20 M.S.P.R. 163, 164 (1984); Wall v. D epartment of Health and Human Services , 10 M.S.P.R. 139, 140 (1982); Clark v. Department of the Navy , 3 M.S.P.R. 541, 543 (1980). This principle is equally valid in the context of delaying filing a petition for enforcement. Second, the Administrative Judge c oncluded that the June 16, 2004 and September 14, 2004 notice le tters provided the second alleged breach, because the notice letters informed Mr. Kieffer t hat the BIA had disc losed his personnel file to the U.S. Attorney’s Office. This disclosure alle gedly violated the

2006-3423 72006-3423 8 confidentiality provision in paragraph six of the settl ement agreement because the personnel file allegedl y contained documents relat ed to Mr. Kieffer’s appeal and to the settlement agreement. Again, in his petition for enforcement, Mr. Kieffer identified this disclosure as an all eged breach, stating the BIA “is in further breach . . . in that [it] communicated t he contents of the decision letter with the U.S. Attorney’s Office in direct cont ravention of paragraph number 6 of the settlement agreement.” Yet, in his a ppellate brief, Mr. Kieffer offers no explanation for why this six- to nine-m onth delay was reasonabl e. This ground alone was sufficient for the Board to deny review of the Administrative Judge’s finding that the delay was unreasonable. Finally, Mr. Kieffer mischaracterize s this court’s holding in Poett . In Poett , this court reasoned that “[t]he reasonable ti me requirement for filing a petition for enforcement is conceptually similar to the defense of laches. . . . In either case, unreasonable delay is needed.” 360 F.3d at 1384 (citation omitted). This court did not hold in Poett that prejudice to the opposin g party is a factor in the reasonableness inquiry. CONCLUSION
AFFIRMED