Patterson v. Merit Systems Protection Board ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EDWARD C. PATTERSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3209
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DE0752890371-C-5.
____________________________
Decided: February 8, 2012
____________________________
EDWARD C. PATTERSON, of Sontag, Mississippi, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the Gen-
eral Counsel, Merit Systems Protection Board, of Wash-
ington, DC, for respondent. With her on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
PATTERSON v. MSPB 2
Before LOURIE, MOORE, and REYNA, Circuit Judges.
PER CURIAM.
This appeal concerns the timeliness of a petition filed
by Edward C. Patterson (“Patterson”) on October 28,
2010, to enforce terms of a settlement agreement he
executed with the United States Postal Service (the
“Agency”) on November 16, 1989. A final order of the
Merit Systems Protection Board (the “Board”) dismissed
Patterson’s petition as untimely filed. We affirm.
BACKGROUND
The enforcement petition at issue in this case is the
fifth such petition filed by Patterson over the same set-
tlement agreement. The initial decision of the adminis-
trative judge summarizes the pertinent facts regarding
Patterson’s removal from employment in 1988 and the
resulting settlement agreement that he executed with the
Agency on November 16, 1989. R.A. 2-6. The initial
decision also describes Patterson’s four prior petitions to
enforce various terms of the agreement, all of which were
dismissed by the Board. Id.
Patterson filed the present enforcement petition on
October 28, 2010. The petition alleges that the Agency
did not make back pay payments for the period of March
1988 to October 1989 as required under the settlement
agreement, 1 and that the Agency further breached the
agreement “by not reinstating me with all benefits.” R.A.
21. Upon receipt of the petition, the administrative judge
1 In a later filing with the administrative judge,
Patterson asserted that the Agency failed to make back
pay payments from March 1988 to November 1989. R.A.
50.
3 PATTERSON v. MSPB
ordered Patterson to file evidence and argument as to
why his petition should not be dismissed as previously
decided by the Board or as untimely filed. R.A. 23-26, 43-
46. On the question of res judicata, Patterson responded
by referencing a clause in the settlement agreement
stating that the “conditions of this agreement are mutu-
ally dependent and inseparable.” R.A. 50. On the issue of
timeliness, Patterson argued that “to deny on the cause of
timeliness would make the agreement separable.” Id.
In her initial decision dated February 15, 2011, the
administrative judge found that Patterson’s petition for
enforcement was untimely filed and that no good cause
existed for the delay. R.A. 5-6. Regarding timeliness, the
administrative judge noted that Patterson failed to ex-
plain when he learned of the alleged breach of the settle-
ment agreement, why he did not raise this issue in his
four prior petitions for enforcement, and why he waited
twenty-one years from the date of the settlement agree-
ment to raise his concerns. As for the lack of good cause
for delay, the administrative judge found that Patterson
failed to establish that he acted reasonably and with
diligence in filing his petition so long after the settlement
agreement was executed. Patterson petitioned for review
to the full Board, which denied his request in an order
dated August 9, 2011. R.A. 13. The opinion of the admin-
istrative judge thus became the final decision of the
Board.
Patterson appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
PATTERSON v. MSPB 4
DISCUSSION
Our review of final decisions of the Board is circum-
scribed by statute. We may reverse a decision of the
Board only if it is:
(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) unsupported by substantial evidence[.]
5 U.S.C. § 7703(c) (2006).
A petition for enforcement alleging a breach of a set-
tlement agreement must be filed within a reasonable
amount of time after the date the petitioning party be-
comes aware of a breach of the agreement. Kasarsky v.
Merit Sys. Prot. Bd., 296 F.3d 1331, 1335 (Fed. Cir. 2002).
In this case, Patterson failed to explain, in response to the
administrative judge’s request, when he became aware of
the alleged breach of the settlement agreement or why he
waited twenty-one years after the execution of the agree-
ment to file his petition. Substantial evidence therefore
supports the Board’s determination that Patterson’s
petition for enforcement was untimely and that no good
cause existed for the delay. Accordingly, we affirm the
final decision of the Board.
AFFIRMED