Mosley v. DVA , 644 F. App'x 1020 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CALVIN J. MOSLEY,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-1240
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-10-0469-C-1.
______________________
Decided: April 8, 2016
______________________
CALVIN J. MOSLEY, Gary, IN, pro se.
SCOTT MACGRIFF, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BENJAMIN
C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before LOURIE, MOORE, and CHEN, Circuit Judges.
2 MOSLEY v. DVA
PER CURIAM.
Calvin J. Mosley (“Mosley”) appeals from the decision
of the Merit Systems Protection Board (“Board”) denying
his petition for review of the administrative judge’s (“AJ”)
denial of his petition for enforcement. Mosley v. Dep’t of
Veterans Affairs, 122 M.S.P.R. 659 (2015) (Table); see also
Resp’t’s App. (“App.”) 1–6. Because the Board’s decision
contains no legal error and is supported by substantial
evidence, we affirm.
BACKGROUND
In April 2006, Mosley was hired on a temporary basis
as a social worker at the Department of Veterans Affairs
(“the agency”) veterans’ center in Gary, Indiana. He was
converted to a permanent employee in May 2008, but in
March 2010, he was terminated for failure to obtain the
necessary licensure. App. 43–44.
Mosley appealed his removal to the Board, but shortly
before the hearing, he entered into a settlement agree-
ment (“2011 agreement”) with the agency. App. 34–36.
Pursuant to the 2011 agreement, Mosley agreed to with-
draw his “complaints, grievances, MSPB appeals, and all
other causes of action against the VA in any forum,” and
further “waive[d] his right to pursue any and all future
causes of action.” App. 34 ¶ 1. In exchange, the agency
agreed to “remove the Standard Form 50 (SF-50) from Mr.
Mosley’s Official Personnel File reflecting his removal and
replace it with an SF-50 reflecting that [Mosley] voluntar-
ily resigned from the Agency for personal reasons,” and to
refrain from objecting to any application Mosley might file
for unemployment insurance benefits. App. 34 ¶¶ 2–3.
The AJ accepted the 2011 agreement “as lawful on its face
and entered into freely by both parties,” entered it into
the record, and dismissed Mosley’s appeal. App. 27–28.
Soon thereafter, Mosley filed a petition for review by
the full Board, claiming that the agency failed to provide
MOSLEY v. DVA 3
him with a copy of his new SF-50, and requesting $5,000
to compensate for alleged duress. App. 70–73. The Board
denied the petition for review, finding that (1) the agency
complied with the terms of the 2011 agreement, and in
fact mailed a copy of the new SF-50 to Mosley; (2) Mosley
could not show that the 2011 agreement was unlawfully
or involuntarily entered into, and thus could not convince
the Board to set aside the 2011 agreement; and (3) “noth-
ing in the [2011] agreement can be read as entitling the
appellant to $5,000.00, or to any monetary sum for that
matter.” App. 19. Mosley did not appeal from that deci-
sion.
In 2015, Mosley filed a new petition for enforcement
at the Board, claiming that the agency breached the 2011
agreement when it failed to pay him one year’s salary or
offer any monetary award. App. 8–9. He did not other-
wise challenge the agency’s compliance with the agree-
ment. App. 3 ¶ 3. Additionally, Mosley asked the Board
to invalidate the 2011 agreement and to reopen his earlier
appeal. App. 9.
The AJ declined to address Mosley’s request to invali-
date the 2011 agreement and reopen the appeal because
the agreement’s validity had been adjudicated and upheld
by the Board once before, a matter which Mosley did not
further appeal. See App. 9. The AJ then found that the
agency did not breach the 2011 agreement, for the agree-
ment did not require the agency to pay any monies, only
to revise the SF-50 and to refrain from challenging any
future request for unemployment benefits: “Mosley cannot
ask the Board to enforce any term or provision that is not
in the settlement agreement.” App. 11. Accordingly, the
AJ dismissed Mosley’s petition for enforcement. App. 11.
Mosley petitioned the full Board for review of the AJ’s
denial, and the Board denied the petition. App. 1. It first
reasoned that res judicata barred Mosley from challeng-
ing the validity of the 2011 agreement, a matter that had
4 MOSLEY v. DVA
been formally and finally adjudged. App. 3 ¶ 4. It then
found that the 2011 agreement did not require the agency
to pay Mosley any monies, and thus the agency could not
be in breach of the agreement for failing to pay any mon-
ies that Mosley demanded. App. 4 ¶ 7.
Mosley timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of a Board decision is limited. We can on-
ly set aside the decision if it was “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c).
In his informal appeal brief, Mosley first argues: “For
the MSPB communication–syntax–grammer [sic] transla-
tions within the document are with void terms of the
constitution–contract between these two–or–more persons
within the document.” Pet’r’s Informal Appeal Br. 1. To
the extent Mosley is challenging the validity of the 2011
agreement, see App. 87–90, we agree with the Board that
his challenge is barred by res judicata.
Res judicata applies to bar a claim where (1) the par-
ties are identical or in privity; (2) the first suit proceeded
to a final judgment on the merits in a forum of competent
jurisdiction; and (3) the second claim is based on the same
set of transactional facts as the first. See Parklane Hosi-
ery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979); Carson v.
Dep’t of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005). As
the Board found, all three criteria are satisfied here. The
parties are identical: both actions involve Mosley and the
agency. The second claim is based on the same facts as
the first: in both suits, Mosley contests the validity of the
same 2011 agreement based on the same set of facts. See,
e.g., Resp’t’s Br. 6. Last, the first suit proceeded to a final
MOSLEY v. DVA 5
judgment on the merits: the AJ found, and the full Board
affirmed, that the 2011 agreement was “lawful on its face
and freely entered into by both parties.” App. 19. Mosley
chose to forego any further challenge of the Board’s deci-
sion at that time. Accordingly, the Board correctly deter-
mined that res judicata precludes Mosley from relitigating
the validity of the 2011 agreement.
Next, Mosley further asserts: “MSPB neglectful–use
of the fictional–contract–language with the correctional–
pleading by the claimant.” Pet’r’s Informal Appeal Br. 1.
To the extent Mosley argues that the agency breached the
2011 agreement by failing to pay him a monetary award,
see App. 90–93, we find that argument unpersuasive.
In order to prevail on a breach of a settlement agree-
ment claim, Mosley must show material noncompliance
by the agency with the terms of the agreement. See, e.g.,
Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1071 (Fed. Cir.
2003). The 2011 agreement at issue here only requires
the agency to do two things: (1) replace the SF-50 form in
Mosley’s personnel file with one reflecting his voluntary
resignation; and (2) not object to any application Mosley
files for unemployment benefits. App. 34 ¶¶ 2–3. Nota-
bly, it does not require the agency to pay Mosley a mone-
tary award. See App. 34–36. Indeed, by signing the 2011
agreement, Mosley waived “any and all rights to seek . . .
any other remedies for any matters arising out of or
related to his employment with the Agency.” App. 34 ¶ 2.
In view of such an agreement, Mosley cannot now contend
that the agency’s failure to pay a monetary award consti-
tuted a breach. As the AJ stated, “Mosley cannot ask the
Board to enforce any term or provision that is not in the
settlement agreement.” App. 11. Because Mosley does
not otherwise challenge the agency’s compliance with the
2011 agreement, see App. 3 ¶ 3, we affirm the Board’s
conclusion that the agency did not breach the agreement.
6 MOSLEY v. DVA
CONCLUSION
We have considered the remaining arguments raised
in Mosley’s informal appeal brief, but we find them un-
persuasive. For the reasons set forth above, the decision
of the Board is affirmed.
AFFIRMED