UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEONARD ENGLISH, JR.,

Appellant,

v.

SMALL BUSINESS 

ADMINISTRATION,

Agency.

DOCKET NUMBERS

DE-0752-13-0353-C-11

DE-1221-12-0266-C-1

DATE: July 23, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Leonard English, Jr., Aurora, Colorado, pro se.

Larry G. Webb and Sherrie Abramowitz, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

decisions, which dismissed the petitions for enforcement as untimely filed. 

Generally, we grant petitions such as this one only when: the initial decision 

 1 We JOIN these cases because they are interdependent and doing so will expedite their 

processing without adversely affecting the parties’ interests. 5 C.F.R. § 1201.36(a)(2).

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

contains erroneous findings of material fact; the initial decision is based on an 

erroneous 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 petitions for review. 

Therefore, we DENY the petitions for review and AFFIRM the compliance initial 

decisions, which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b). 

¶2 On April 4, 2012, the appellant filed an individual right of action (IRA)

appeal alleging that the agency proposed his removal and placed him on 

administrative leave in retaliation for his alleged whistleblowing activity. 

English v. Small Business Administration, MSPB Docket No. DE-1221-12-0266-

W-1, Initial Appeal File (W-1 IAF), Tab 1. The administrative judge dismissed 

the appeal without prejudice pending issuance of Day v. Department of Homeland 

Security, 119 M.S.P.R. 589 (2013), which resolved whether certain provisions of 

the Whistleblower Protection Enhancement Act, which became effective on 

December 27, 2012, applied to cases, such as the appellant’s, that were pending 

before the Board on its effective date. W-1 IAF, Tab 24. On June 28, 2013, 

while the appellant’s IRA appeal was dismissed pending a decision in Day, the 

appellant filed an appeal of the agency’s action suspending him. English v. Small 

Business Administration, MSPB Docket No. DE-0752-13-0353-I-1, Initial Appeal 

File (I-1 IAF), Tab 1. On July 9, 2013, while the suspension appeal was pending, 

the administrative judge sua sponte refiled the IRA appeal. English v. Small 

Business Administration, MSPB Docket No. DE-1221-12-0266-W-2, Initial 
3

Appeal File (W-2 IAF), Tab 1. On December 21, 2013, the parties signed a 

settlement agreement resolving all disputed issues in both the IRA and suspension 

appeals, and they submitted it to the administrative judge for inclusion into the 

records of the appeals. W-2 IAF, Tab 10; I-1 IAF, Tab 20. The administrative 

judge issued initial decisions dismissing both appeals as settled and entered the 

settlement into the appellate records for enforcement purposes. W-2 IAF, Tab 11, 

Initial Decision; I-1 IAF, Tab 21, Initial Decision.

¶3 On December 8, 2014, the appellant filed petitions for enforcement in both 

appeals alleging that the agency breached the agreement by failing to place his 

Fiscal Year (FY) 2013 Annual Performance Review in his official personnel file

(OPF). English v. Small Business Administration, MSPB Docket No. DE-0752-

13-0353-C-1, Compliance Appeal File (CAF), Tab 1.

3

 The administrative judge 

issued show cause orders advising the parties that, because the settlement 

agreement required that the agency place a FY 13 appraisal in the appellant’s 

personnel record within 60 days, the appellant should have known by

February 21, 2014, whether the required document had been added to his OPF, 

and thus it appeared that the appellant’s petitions for enforcement were untimely. 

CAF, Tab 3. In his responses the appellant acknowledged that, on February 24, 

2014, the agency’s counsel had sent an email to the appellant’s counsel noticing

compliance with the settlement agreement. CAF, Tab 4. The appellant also 

stated that he had contacted the agency on May 1, 2014, and September 24, 2014,

about his concerns that his FY 2013 appraisal was not in his electronic OPF. 

CAF, Tabs 4, 10. The administrative judge found that under these circumstances,

where the appellant had actual knowledge that his FY 2013 appraisal had not been 

uploaded to his electronic OPF by May 1, 2014, he did not exercise due diligence 

 3 The two compliance appeal files contain different numbers of tabs. All of the 

documents relevant to the disposition of this petition for review are in the petition for 

enforcement file with the docket number of the suspension appeal. For ease of 

reference, all the references to the compliance file in this Final Order are to the file in 

MSPB Docket No. DE-0752-13-0353-C-1.
4

in waiting more than 7 months to file his petitions for enforcement, i.e., until 

December 8, 2014. CAF, Tab 13, Compliance Initial Decision (0353 CID) at 5; 

English v. Small Business Administration, MSPB Docket No. DE-1221-12-0266-

C-1, Compliance Appeal File, Tab 9, Compliance Initial Decision (0266 CID)

at 4-5. She dismissed the petitions for enforcement as untimely filed. 0353 CID 

at 5; 0266 CID at 5.

¶4 The appellant has filed identical petitions for review of the compliance 

initial decisions. Petition for Review File, Tab 1. 4

 In his petition, the appellant 

appears to be contending the administrative judge should have considered his

many allegations of what he perceived as agency wrongdoing unrelated to the 

settlement agreement in determining whether he timely filed his petition for 

enforcement.

¶5 Any petition for enforcement that is filed more than 30 days after the date 

of service of the agency’s notice that it has complied must contain a statement 

and evidence showing good cause for the delay and a request for an extension of 

time for filing the petition. 5 C.F.R. § 1201.182(a). Because an agency is not 

required to serve a notice of compliance with a settlement agreement, a petition 

for enforcement of a settlement agreement must be filed within a reasonable time 

of the date of the alleged breach of the agreement, taking into consideration the 

date of the petitioning party’s knowledge of the alleged breach, and the 

reasonableness of the time period depends on the particular circumstances of the 

case. See Dean v. U.S. Postal Service, 101 M.S.P.R. 356, ¶ 12 (2006).

¶6 In Phillips v. Department of Homeland Security, 118 M.S.P.R. 515, (2012),

the appellant filed a petition for enforcement 4 months after she became aware 

that the agency apparently had breached the settlement agreement. The Board 

found 4 months was a reasonable delay under the circumstances of that case

 4 For ease of reference, all references to the petition for review file in this Final Order 

are to the file in English v. Small Business Administration, MSPB Docket No. DE-0752-

13-0353-C-1. 
5

because the appellant had contacted the agency to obtain a copy of her OPF 

promptly after learning of the apparent breach. The Board concluded that she 

acted diligently to determine whether the agency had complied with its 

expungement obligations, and in filing her petition for enforcement within 6 days 

after receiving her OPF from the agency. Phillips, 118 M.S.P.R. 515, ¶ 11.

Under the circumstances—including the agency’s lengthy delay in providing the 

OPF, which appears to have influenced Appellant Phillips’ failure to immediately 

file her petition—the Board found that the petition for enforcement was filed 

within a reasonable amount of time. Id. 

¶7 The appellant’s situation differs from that in Phillips. He had access to his 

OPF electronically without any need to make any request to his agency. None of 

the agency’s alleged wrongdoing affected his ability to know for certain of the 

agency’s alleged breach of the settlement agreement. Thus, the agency’s actions 

identified by the appellant do not provide a circumstance that appears to have 

influenced his 7-month delay in filing his petition for review.

¶8 In Bostick v. Department of Health & Human Services, 63 M.S.P.R. 399

(1994), the appellant also filed his petition for enforcement 4 months after he 

apparently learned that the agency breached a settlement agreement by 

withholding the authority he allegedly needed to perform the duties of his 

position. Bostick, 63 M.S.P.R. at 401. However, he filed a grievance concerning 

the matter, and he filed his petition for enforcement only 10 days after he 

received the agency’s decision on that grievance. Id. The Board noted that 

generally the pursuit of other avenues of redress, including the grievance process,

does not constitute good cause for waiving the Board’s filing deadline. See, e.g.,

Bachelor v. Department of the Army, 56 M.S.P.R. 108, 110 (1992). However, 

because the appellant received only the more general information about petitions 

for enforcement that is provided in cases involving settlement agreements, and 

not the more specific information provided in other cases, the Board found that he
6

acted within a reasonable time of the date of the alleged breach. Bostick, 

63 M.S.P.R. at 410. 

¶9 The appellant’s situation also differs from that in Bostick. Although the 

appellant states that he filed an equal employment opportunity complaint, a 

complaint with the Office of Special Counsel, and a complaint with the Inspector 

General, he does not allege that any of these complaints involved the agency’s 

alleged failure to place his FY 2013 appraisal in his OPF. Thus, they provide no 

basis to find that the appellant acted within a reasonable time to file his petitions

for enforcement. Further, although the appellant received only the more general 

information about petitions for enforcement that is provided in cases involving 

settlement agreements, by his own admission, he was familiar with Board 

proceedings, having filed other Board complaints, a circumstance supporting a 

finding that the appellant failed to act with due diligence in filing his petitions for 

enforcement. Cf. Chudson v. Environmental Protection Agency, 71 M.S.P.R. 115, 

118 (1996) (1-year delay was unreasonable where appellant was an experienced 

Board litigant and was represented by counsel), aff’d, 132 F.3d 54 (Fed. Cir. 

1997) (Table).

¶10 In sum, we find that the administrative judge properly dismissed the 

appellant’s petitions for enforcement in these appeals as untimely filed.

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
7

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 

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
8

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