UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JESUS J. GONZALEZ, JR.,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DA-0752-11-0078-C-1

DATE: August 8, 2022

THIS ORDER IS NONPRECEDENTIAL*

Juan M. Gonzalez, Esquire, San Antonio, Texas, for the appellant.

Kathleen Shipley, Megan Nicole Copley, and Felix R. Martinez Velez, 

Laredo, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

denied his petition for enforcement, finding that he failed to prove 

by preponderant evidence that the agency materially breached any of the terms of 

 

* A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the settlement agreement. For the reasons discussed below, we GRANT the 

appellant’s petition for review and REMAND the case to the regional office for 

further adjudication in accordance with this Remand Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant from his position as a GS-11 Border 

Patrol Agent and he filed an appeal with the Board. Gonzalez v. Department of 

Homeland Security, MSPB Docket No. DA-0752-11-0078-I-1, Initial Appeal File 

(IAF), Tab 1. During the pendency of that appeal, the parties entered into a 

settlement agreement resolving the appeal. IAF, Tab 17. The settlement 

provided, in pertinent part, that the appellant would withdraw his appeal, submit a 

written resignation “for personal reasons,” and would not apply for a position 

with the agency for 5 years. IAF, Tab 17 at 3-4. In exchange, the agency agreed

to do the following: (1) cancel the removal action; (2) replace the existing 

Standard Form (SF) 50 in the appellant’s Official Personnel File (OPF) indicating 

that he had been removed with an SF-50 indicating that he resigned “for personal 

reasons”; (3) remove all documentation regarding the removal action from the 

appellant’s OPF; and (4) refer all inquiries and requests for references regarding 

the appellant’s work performance, reason for resignation, or other employment 

matters to the agency’s Indianapolis Hiring Center and limit information provided 

in response to such requests to the information reflected in the OPF. Id. at 4. 

The administrative judge issued an initial decision dismissing the appeal as 

settled and accepting the settlement agreement into the Board’s record for 

enforcement purposes. IAF, Tab 18, Initial Decision.

¶3 The appellant filed a petition for enforcement on January 7, 2017, alleging 

that the agency breached a term of the settlement agreement when it found him 

unsuitable for employment as a contractor with a private company doing contract 

work with the agency. MSPB Docket No. DA-0752-11-0078-C-1, Compliance 

File (CF), Tab 1. The agency filed a response to the compliance petition 
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asserting that it had not breached the agreement because the appellant had 

specifically authorized the release of information for the purposes of a 

background investigation by executing a signed waiver or alternatively, that the 

appellant himself had voluntarily disclosed the offending information leading to 

the unsuitability finding on his SF-85P background investigation questionnaire. 

CF, Tab 5 at 4-5. The agency also alleged that the appellant breached the waiting 

period provision of the agreement by applying for a position with the agency 

before 5 years had elapsed. Id. at 4.

¶4 In a compliance initial decision based on the written record, the 

administrative judge determined that the appellant had failed to submit evidence 

sufficient to demonstrate that the agency had breached a term of the settlement 

agreement. CF, Tab 8, Compliance Initial Decision (CID) at 6-7. Alternatively, 

the administrative judge determined that, even if the agency had provided the 

disputed information to the background investigators, the appellant had 

knowingly and intentionally waived the agency’s obligation to restrict the release 

of the information by executing an authorization form. CID at 7-9. 

Consequently, the administrative judge denied the petition for enforcement. 

CID at 9.

¶5 On review, the appellant contends that he was improperly denied the 

opportunity to conduct discovery and that the administrative judge erred in 

concluding that the signed authorization allowed the agency to release the 

contested information. Compliance Petition for Review (CPFR) File, Tab 1

at 3-4. The agency has filed a response in opposition to the petition for review. 

CPFR File, Tab 3.

The administrative judge abused his discretion by issuing the compliance initial 

decision without allowing the appellant to conduct discovery.

¶6 In a January 17, 2017 acknowledgement order, the administrative judge 

noted that though discovery “may not be necessary in a compliance appeal,” if a 

party believed it was necessary, “any initial request for discovery must be filed 
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within 15 days of the filing of the response to the petition for enforcement. ” 

CF, Tab 3 at 2-3. Consistent with the Board’s regulations, the order specified 

that the record would close 15 calendar days from the date of service of the 

agency’s reply “unless a party inform[ed] [the administrative judge] that 

discovery will take place.” Id. at 3; see 5 C.F.R. § 1201.183(a)(9).

¶7 The agency filed its response to the petition for enforcement on 

February 1, 2017. CF, Tab 5. The appellant, replying to the agency’s response 

on February 11, 2017, indicated that he “intend[ed] to propound discovery upon

the Agency,” and requested “the ability to issue discovery to the agency.” CF, 

Tab 6 at 11. On February 24, 2017, the administrative judge issued the 

compliance initial decision denying the appellant’s petition for enforcement,

despite the fact the appellant had informed the administrative judge that he 

intended to conduct discovery. CID.

¶8 In response to an order issued by the Acting Clerk of the Board, the 

appellant provided a list of interrogatories propounded on the agency on 

February 15, 2017, and a request for the production of documents submitted to 

the agency on February 16, 2017. CPFR File, Tab 7 at 7-19. The appellant’s 

attorney asserts that no response was received to either request. Id. at 5. The 

agency has not provided a response to the order. 

¶9 The Board will not reverse an administrative judge’s rulings on discovery 

matters absent an abuse of discretion. Wagner v. Environmental Protection 

Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) 

(Table). However, as the party bearing the burden of proof on the claim, the

appellant is entitled to obtain evidence to support his claim. See, e.g., Lynch v. 

Department of Defense, 114 M.S.P.R. 219, ¶ 11 (2010). The appellant has 

provided sufficient evidence demonstrating that he notified the administrative 

judge of his intention to undertake discovery, that he served his discovery 

requests within the requisite 15 days following the agency’s response to the 

petition for enforcement, and that, when the administrative judge issued his 
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compliance initial decision, the agency had not yet replied to the appellant’s 

requests. The unanswered discovery requests produced by the appellant seek 

evidence that could be relevant and admissible concerning his allegation that the 

agency materially breached a term of the settlement agreement. CPFR File, Tab 7 

at 7-19. By issuing the initial decision before discovery was completed, the 

administrative judge deprived the appellant of the opportunity to gather and 

submit potentially relevant evidence obtained during the ongoing discovery 

process. Bernard v. Department of Agriculture, 788 F.3d 1365, 1368-70 (Fed. 

Cir. 2015); 5 C.F.R. § 1201.183(a)(9). As such, the administrative judge abused 

his discretion and we remand this appeal for further adjudication. See Bernard, 

788 F.3d at 1368-70. 

¶10 On remand, the administrative judge shall grant the parties additional time 

to conduct discovery regarding the matters addressed in the outstanding discovery 

requests. Additionally, the administrative judge shall set a new close-of-record 

date and allow the parties to submit potentially relevant evidence obtained 

through the discovery process. After discovery is completed, the administrative 

judge shall issue a new compliance initial decision consistent with this Remand 

Order.

ORDER

¶11 For the reasons discussed above, we remand this case to the regional office 

for further adjudication consistent with this Remand Order. 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board