Wilson v. Department of Agriculture , 690 F. App'x 666 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALVIN WILSON, JR.,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2017-1587
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0432-14-0835-C-2.
______________________
Decided: June 7, 2017
______________________
ALVIN WILSON, JR., St. Louis, MO, pro se.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH M.
HOSFORD.
______________________
Before MOORE, REYNA, and STOLL, Circuit Judges.
2 WILSON v. AGRICULTURE
PER CURIAM.
Alvin Wilson, Jr. appeals from a final decision of the
Merit Systems Protection Board (the “Board”) denying his
petition for enforcement of a settlement agreement with
the United States Department of Agriculture (“USDA”).
Because substantial evidence supports the Board’s deci-
sion, we affirm.
BACKGROUND
After Mr. Wilson was removed from his position as a
Processor with the USDA’s Rural Housing Service, he
filed a Board appeal challenging his removal. While his
appeal was pending, Mr. Wilson and the USDA entered
into a settlement agreement that resolved Mr. Wilson’s
Board appeal and two separate equal employment oppor-
tunity claims. The settlement agreement required the
USDA to: (1) support Mr. Wilson’s disability retirement
application with the Office of Personnel Management
(“OPM”); (2) permit Mr. Wilson to voluntarily resign,
effective the date of his removal; and (3) pay Mr. Wilson
$5,000. The administrative judge entered the settlement
agreement and dismissed the appeal.
Approximately six months later, Mr. Wilson filed a
petition for enforcement of the settlement agreement. He
argued the USDA breached the agreement in four ways:
(1) it told an unspecified prospective employer he had
been removed; 1 (2) it failed to timely provide OPM with a
Disability Retirement Application Checklist; (3) it provid-
ed forms directly to him, rather than to OPM; and (4) it
provided him with copies of documents, rather than
originals. The administrative judge denied the petition.
Mr. Wilson petitioned the Board for review, and the Board
affirmed the administrative judge’s decision.
1 Mr. Wilson did not raise this argument before the
Board or in his appeal to our court.
WILSON v. AGRICULTURE 3
Mr. Wilson appeals to our court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a Board decision unless it is:
(1) arbitrary, capricious, an abuse of discretion, or other-
wise 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). We review the Board’s construction of
a settlement agreement de novo. Fomby-Denson v. Dep’t
of Army, 247 F.3d 1366, 1372 (Fed. Cir. 2001). We seek to
implement the intent of the parties at the time the
agreement was made. King v. Dep’t of Navy, 130 F.3d
1031, 1033 (Fed. Cir. 1997).
Mr. Wilson raises three arguments. First, he argues
the USDA failed to timely provide OPM with a Disability
Retirement Application Checklist. The settlement
agreement requires the USDA to support Mr. Wilson’s
disability retirement application with OPM. The agree-
ment defines support as “providing certification to OPM
on OPM Standard Forms 3112B and 3112D . . . and any
other documentation requested by OPM” within 21 days
of executing the agreement. J.A. 21. On September 15,
2015, 202 days after the effective date of the settlement
agreement, the USDA received a letter from OPM re-
questing that the agency provide OPM with a third docu-
ment—the Disability Retirement Application Checklist—
pertaining to Mr. Wilson. The USDA sent the requested
form to OPM 37 days later.
Mr. Wilson contends the USDA was obligated to pro-
vide the Disability Retirement Application Checklist
within 21 days of execution of the settlement agreement.
We disagree. The settlement agreement only required
that the USDA provide two documents within 21 days:
Forms 3112B and 3112D. OPM did not request the
Disability Retirement Application Checklist until after
4 WILSON v. AGRICULTURE
the 21-day period, making it impossible for the USDA to
comply within 21 days of execution of the contract. To the
extent the settlement agreement required the USDA to
provide documentation requested by OPM after the 21-
day window, we conclude that transmitting the Disability
Retirement Application Checklist to OPM a little over five
weeks after the request is reasonable. See Thomas v.
Dep’t of Housing & Urban Dev., 124 F.3d 1439, 1442 (Fed.
Cir. 1997) (noting that only material breaches justify
rescinding settlement agreements with an agency). We
agree with the Board that the USDA did not breach the
settlement agreement by failing to provide documents in a
timely fashion.
Second, Mr. Wilson argues the USDA provided forms
directly to him, rather than to OPM. The settlement
agreement expressly requires the USDA to send forms to
Mr. Wilson. See J.A. 21 (“The Agency will provide such
support directly to the Complainant . . . .”). We agree
with the Board that the USDA did not breach the settle-
ment agreement by sending the forms to Mr. Wilson.
Third, Mr. Wilson argues the USDA provided him
with copies of documents, rather than originals. The
Board noted the USDA submitted evidence that it provid-
ed Mr. Wilson with original forms and documents with
signatures, as required by OPM, and that Mr. Wilson
never presented contrary evidence. This is substantial
evidence to support the Board’s finding that the USDA
provided Mr. Wilson original documents.
CONCLUSION
The Board’s decision denying Mr. Wilson’s petition for
enforcement of the settlement agreement is affirmed.
AFFIRMED
COSTS
No costs.