Case: 21-1996 Document: 52 Page: 1 Filed: 06/30/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEMETRIA CECELIA BROWN,
Petitioner
v.
GENERAL SERVICES ADMINISTRATION,
Respondent
______________________
2021-1996
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-19-0272-C-1.
______________________
Decided: June 30, 2022
______________________
KERRIE DIANE RIGGS, Kator, Parks, Weiser & Harris,
P.L.L.C., Washington, DC, argued for petitioner. Also rep-
resented by MICHAEL KATOR.
STEPHANIE FLEMING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY.
______________________
Case: 21-1996 Document: 52 Page: 2 Filed: 06/30/2022
2 BROWN v. GSA
Before LOURIE, MAYER, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge LOURIE.
Dissenting opinion filed by Circuit Judge CHEN.
LOURIE, Circuit Judge.
Demetria Brown appeals from a decision of the Merit
Systems Protection Board (“the Board”) dismissing her pe-
tition for enforcement of a settlement agreement. See
Brown v. GSA, No. DC-0752-19-0272-C-1,
2021 WL 779642
(M.S.P.B. Feb. 23, 2021) J.A. 1–17 (“Decision”). We affirm.
BACKGROUND
On March 31, 2018, Brown retired from her position as
a program analyst with the General Services Administra-
tion (“GSA”). Shortly after retirement, Brown alleged that
GSA had incorrectly told her that she did not need to make
a redeposit to secure her full annuity upon retirement.
Brown discovered the mistake approximately two months
after retiring, when the United States Office of Personnel
Management (“OPM”) notified her that she needed to rede-
posit funds to restore her full retirement annuity.
Brown petitioned the Board to reinstate her in her po-
sition with back pay and other relief. Apparently, she
hoped to receive her back pay in time to make the redeposit
while still employed so she could obtain a full annuity.
But GSA and Brown reached a settlement agreement (“Set-
tlement Agreement”) to resolve the dispute. GSA agreed to
provide her with back pay in return for Brown withdrawing
her petition. The Settlement Agreement went into effect
on July 31, 2019. The Settlement Agreement provided, in
relevant part, that:
The Agency agrees to pay the Appellant back pay,
interest on back pay, and other benefits in accord-
ance with 5 CFR part 550 from April 1, 2018 to Au-
gust 4, 2019. This payment will be made by
electronic funds transfer to the Appellant. The
Case: 21-1996 Document: 52 Page: 3 Filed: 06/30/2022
BROWN v. GSA 3
Appellant shall provide, in writing, the necessary
ACH information to the Agency within five (5) cal-
endar days of the effective date of this Agreement
so that the payment may be processed. This pay-
ment shall be initiated by the Agency within thirty
(30) calendar days of the effective date of this Agree-
ment or the Agency’s receipt of payment infor-
mation from the Appellant, whichever is later. The
Agency will provide accounting of back pay to the
Appellant’s legal representative within fifteen (15)
days of the payment of the back pay.
J.A. 30 (emphasis added).
Because Brown had not received her back pay by the
end of the 30-day period after July 31, 2019, she filed a pe-
tition for enforcement with the Board on October 22, 2019,
alleging breach of the Settlement Agreement. Brown’s pe-
tition alleged that GSA failed to “initiate” payment of her
back pay within 30 days of the execution of the Settlement
Agreement, i.e., by August 30, 2019. She claimed that GSA
could only meet this obligation by instructing the Defense
Finance and Accounting Service to pay Appellant’s back
pay by August 30. 2019. GSA contended that it timely “in-
itiated” payment by taking steps toward authorizing pay-
ment within 30 days of the execution of the Settlement
Agreement. It was not required to actually make the pay-
ment to Brown by August 30, 2019. The delay in having
the payment authorized was due to (1) its realization that
additional information was needed from Brown and (2) the
need to coordinate annuity withholdings with OPM. In the
meantime, Brown’s back pay was issued on November 1,
2019.
On February 23, 2021, the Board’s Administrative
Judge dismissed Brown’s petition and held that GSA met
its obligation to “initiate” payment by August 30, 2019, be-
cause it began the process internally, and then with OPM,
to facilitate the payment of back pay. During the
Case: 21-1996 Document: 52 Page: 4 Filed: 06/30/2022
4 BROWN v. GSA
proceedings, OPM represented that it had not received re-
deposit funds from Brown but indicated that she could still
make the redeposit. OPM also indicated that it was still
awaiting input from Brown about the withholdings it had
from her retirement annuity. Given these facts, the Board
concluded that GSA met its obligations under the Settle-
ment Agreement as written, and that the Board “c[ould
not] read terms into the settlement agreement that the
parties neglected to include[]” in order to facilitate Brown’s
purpose to be able to redeposit the funds needed to restore
her full annuity. Decision, slip op. at 8.
The Administrative Judge’s decision became the
Board’s final decision on March 31, 2021. Brown then ap-
pealed to this court. We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)(A) and
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review the Board’s legal determinations de novo
and its underlying findings of fact for substantial evidence.
See, e.g., Welshans v. United States Postal Serv.,
550 F.3d
1100, 1102 (Fed. Cir. 2008). A court will not overturn an
agency decision if it is not contrary to law and was sup-
ported by “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Consol.
Edison Co. v. Nat’l Lab. Rel. Bd.,
305 U.S. 197, 229 (1938).
In reviewing findings of fact, “the standard is not what the
court would decide in a de novo appraisal, but whether the
administrative determination is supported by substantial
evidence on the record as a whole.” Parker v. United States
Postal Serv.,
819 F.2d 1113, 1115 (Fed. Cir. 1987).
Brown argues that the plain language of the Settle-
ment Agreement makes clear that the “initiate” payment
language meant that GSA was required to “have completed
the paperwork on its end by [August 30, 2019] and in-
formed the third party payor [Defense Finance and Ac-
counting Service] to cut the check to the payee.”
Appellant’s Br. at 17. She adds that this meaning is
Case: 21-1996 Document: 52 Page: 5 Filed: 06/30/2022
BROWN v. GSA 5
consistent with the parties’ use of the term in the agree-
ment and the general use of the term in federal civil service
matters. Brown further asserts that GSA breached this
material term of the Settlement Agreement because she
did not timely receive her back pay by August 30, 2019, and
was therefore unable to make her redeposit to restore her
retirement annuity before she retired.
GSA responds that the plain meaning of “initiate,” the
context of adjacent language in the Settlement Agreement,
and the lack of countervailing authority all support GSA’s
understanding that it did timely “initiate” the back pay
award. GSA adds that even if it failed to timely “initiate”
Brown’s back pay, it was not a material breach of the Set-
tlement Agreement because Brown received her back pay
on November 1, 2019. It also argues that, if Brown’s pur-
pose in receiving the back pay was to permit her to make a
redeposit before retiring, that was not in the agreement.
We agree with GSA and hold that the Board did not err
in reading the term “initiate” in the Settlement Agreement
to mean “taking steps to initiate payment.” The normal
meaning of initiate is to begin, not to complete. See, e.g.,
Merriam-Webster’s Collegiate Dictionary 644 (11th ed.
2020) (defining “initiate” to mean “to cause or facilitate the
beginning of”). There is no question that the Agency did
take steps to initiate the payment. And there was no other
potential material breach of the Settlement Agreement be-
cause Brown received her back pay a short time later. The
Settlement Agreement does not state that the purpose of
paying Brown’s back pay was so that she could use the
money to make her redeposit and restore her retirement
annuity. If that had been part of the agreement, we might
have a different case.
While we are sympathetic to Brown’s circumstances,
we find that GSA did not materially breach the Settlement
Agreement and hold that the Board properly dismissed
Brown’s petition for enforcement, finding it moot.
Case: 21-1996 Document: 52 Page: 6 Filed: 06/30/2022
6 BROWN v. GSA
CONCLUSION
We have considered Brown’s remaining arguments but
find them unpersuasive. For the foregoing reasons, the de-
cision of the Board is affirmed.
AFFIRMED
COSTS
No costs.
Case: 21-1996 Document: 52 Page: 7 Filed: 06/30/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEMETRIA CECELIA BROWN,
Petitioner
v.
GENERAL SERVICES ADMINISTRATION,
Respondent
______________________
2021-1996
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-19-0272-C-1.
______________________
CHEN, Circuit Judge, dissenting.
Because I believe that the plain language of the settle-
ment agreement between Ms. Brown and the General Ser-
vices Administration (GSA) required GSA to do something
more than merely “tak[e] steps to initiate payment,” see
Majority Op. 5, and because, even under the majority’s in-
terpretation of “initiate,” GSA breached its duty to pay Ms.
Brown in a reasonable time, I respectfully dissent.
I. BACKGROUND
Additional background beyond that recited by the ma-
jority is helpful to understand how this appeal arose.
Case: 21-1996 Document: 52 Page: 8 Filed: 06/30/2022
2 BROWN v. GSA
For two months after Ms. Brown’s March 2018 retire-
ment, she received a $4,631 monthly retirement annuity.
J.A. 2. Then, in May 2018, the Office of Personnel Man-
agement (OPM) notified her that she needed to redeposit
funds she had withdrawn during a prior departure from
federal service and that, absent a redeposit, her monthly
retirement annuity would decrease to $936. J.A. 2.
Ms. Brown subsequently petitioned the Board for rein-
statement, alleging GSA coerced her March 2018 retire-
ment by incorrectly telling her before she retired that she
did not need to make a redeposit to secure her full retire-
ment annuity. J.A. 2. GSA and Ms. Brown settled the pe-
tition. J.A. 29. Under the settlement agreement, GSA
agreed to reinstate Ms. Brown, with back pay and interest
for the period during which she was separated (April 1,
2018, to August 4, 2019), and pay $18,000 in attorneys’
fees. J.A. 29–30 (¶¶ 1–3). Ms. Brown agreed to withdraw
her petition and to retire again on September 30, 2019.
J.A. 31 (¶¶ 5–6). The main issue in this appeal pertains to
GSA’s agreement to initiate payment of back pay and other
benefits within thirty days:
The Agency agrees to pay the Appellant back pay,
interest on back pay, and other benefits in accord-
ance with 5 CFR part 550 from April 1, 2018 to Au-
gust 4, 2019. This payment will be made by
electronic funds transfer to the Appellant. The Ap-
pellant shall provide, in writing, the necessary
ACH information to the Agency within five (5) cal-
endar days of the effective date of this Agreement
so that the payment may be processed. This pay-
ment shall be initiated by the Agency within thirty
(30) calendar days of the effective date of this
Agreement or the Agency’s receipt of payment in-
formation from the Appellant, whichever is later.
The Agency will provide accounting of back pay to
the Appellant’s legal representative within fifteen
(15) days of the payment of the back pay.
Case: 21-1996 Document: 52 Page: 9 Filed: 06/30/2022
BROWN v. GSA 3
J.A. 30 (¶ 2) (emphasis added).
Two other provisions of the agreement are relevant.
GSA agreed to pay $18,000 in attorneys’ fees. J.A. 29 (¶ 1).
This provision, like the back pay provision, required that
“payment shall be initiated by the Agency within thirty
(30) calendar days of the effective date of this Agreement,
or the Agency’s receipt of payment information . . . , which-
ever is later.” J.A. 30 (¶ 1). And Ms. Brown “irrevocably
agree[d] to retire or resign effective September 30, 2019.”
J.A. 31 (¶ 5).
On July 23, 2019, Ms. Brown provided her payment in-
formation and the signed settlement agreement to GSA.
J.A. 47. The effective date of the agreement was July 31,
2019. J.A. 32 (¶ 8). The deadline for GSA to initiate pay-
ment was thirty days later—August 30, 2019.
On August 20, 2019, Ms. Brown’s attorney contacted
GSA’s attorney out of concern that the agency may not
have Ms. Brown’s correct banking information. J.A. 46.
GSA’s attorney responded: “I believe the Agency may have
already initiated the payments to your firm and Ms.
Brown.” J.A. 45. Two days later, on August 22, 2019, Ms.
Brown’s attorney received the payment for attorneys’ fees,
but neither Ms. Brown nor her attorney received payment
for Ms. Brown’s back pay. Appellant’s Br. 5.
On August 28, 2019, Ms. Brown’s attorney again in-
quired as to the status of the payment of Ms. Brown’s back
pay. J.A. 44. GSA responded that “[t]he Agency has initi-
ated the payment.” J.A. 43. GSA cautioned that “[t]he pay-
ment may not reach Ms. Brown until the next EFT pay date
which is September 6.” J.A. 43.
No payment was received on September 6, 2019. On
September 10, 2019, Ms. Brown’s counsel again asked
about the status of the payment. J.A. 42–43. After receiv-
ing no response from GSA nearly a week later, Ms. Brown’s
attorney again asked about the status of the back payment.
Case: 21-1996 Document: 52 Page: 10 Filed: 06/30/2022
4 BROWN v. GSA
J.A. 42. Ms. Brown’s counsel explained that “without the
backpay, Ms. Brown cannot meet her re-payment obliga-
tions to buy back her time” and that Ms. Brown “can’t retire
without the increased annuity.” J.A. 42. GSA’s counsel re-
sponded that she would investigate the issue. J.A. 40–41.
After hearing nothing further, Ms. Brown’s counsel
again emailed GSA’s counsel:
Ms. Brown has still not received the back pay nor
has her leave been restored. We need to explore
options for amending the settlement agreement to
allow her to continue on the rolls until these actions
are completed. One option is to extend her retire-
ment date for another 30 days, but we are open to
discussing other ideas.
J.A. 40.
The next day, Ms. Brown’s attorney again contacted
GSA to explain that Ms. Brown was “about to experience
financial harm due to the Agency’s failure to pay the back
pay” and suggesting that the settlement agreement may
need to be amended to push back Ms. Brown’s retirement
date. J.A. 38. In a phone call, the GSA attorney agreed to
extend Ms. Brown’s retirement date by a month. See J.A.
37.
On September 26, 2019, GSA’s counsel asked to set up
a call with Ms. Brown’s attorney and explained that she
wanted “to make sure we resolve any issues before 9/30.”
J.A. 36. Ms. Brown alleges that, in a call that afternoon,
GSA’s counsel stated that she expected the payment to be
made by October 4, 2019, and stated that she would draft
a modification to the settlement agreement to allow Ms.
Brown to retire at the end of October so that Ms. Brown
could receive her back pay and make her redeposit before
retirement. Appellant’s Br. 7; J.A. 35.
On October 4, 2019, Ms. Brown received restored leave,
but did not receive back pay or a draft modification to the
Case: 21-1996 Document: 52 Page: 11 Filed: 06/30/2022
BROWN v. GSA 5
settlement agreement. J.A. 35. Ms. Brown’s counsel again
contacted GSA’s counsel about the issue. J.A. 35. GSA’s
counsel responded to say that she “just requested another
update from payroll a few hours ago” and would let Ms.
Brown’s counsel know when she heard back. J.A. 35.
On October 7, 2019, Ms. Brown’s counsel again emailed
GSA’s counsel seeking an update and explaining that, if
Ms. Brown did not receive the back pay by the end of that
week, she would file a petition for enforcement. J.A. 56.
GSA’s counsel did not respond. Appellant’s Br. 8.
On October 15, 2019, GSA’s counsel emailed Ms.
Brown’s attorney stating, for the first time, that OPM could
not release Ms. Brown’s payment until it received three
new items from Ms. Brown: (1) verification of Ms. Brown’s
total outside earnings during the period of her separation;
(2) a W-2 or any other information establishing Ms.
Brown’s earnings for the back pay period; and (3) proof that
Ms. Brown “was ready, willing, and able to perform at all
times during the period between the date of the separation
and reinstatement.” J.A. 55.
Ms. Brown’s attorney responded:
It is problematic that you didn’t raise these issues
before. Payment was due in August and you have
been telling us for a month and a half that the pay-
ment will be made in the next pay period. That was
clearly incorrect. We were willing to work with you
when you represented that payment would be
made on October 4th and agreed in principle to ex-
tend Ms. Brown’s retirement date until that pay-
ment was made. However, you never sent the draft
addendum, nor did she receive payment. This is no
longer workable. We cannot continue to drag this
out with no end in sight and with the Agency rais-
ing new alleged problems as we go on. As such, Ms.
Brown has notified the Agency that she will be re-
tiring effective tomorrow. We will be filing a
Case: 21-1996 Document: 52 Page: 12 Filed: 06/30/2022
6 BROWN v. GSA
Petition for Enforcement on Monday unless pay-
ment is received before then.
J.A. 54–55.
Ms. Brown filed her petition for enforcement on Octo-
ber 22, 2019. A week later, on October 30, 2019, GSA re-
sponded promising to “process the backpay with deductions
today if [Ms. Brown] provides” an affidavit confirming that
she “was ready, willing and able to work during the back-
pay period,” and a statement of any earnings from outside
employment during the back pay period, all before 2:30 pm
EST—less than two hours after the email was sent. J.A.
53–54. Finally, on November 1, 2019, Ms. Brown received
back pay in the amount of $59,510.91 despite not having
provided the information demanded by GSA in advance of
their deadline. J.A. 5; Appellant’s Br. 10.
II. DISCUSSION
A. Interpretation of “Initiate”
I disagree with the majority’s interpretation of “initi-
ate” as “taking steps to initiate payment.” See Majority Op.
5. That interpretation conflicts with the plain language of
the settlement agreement, which required GSA to initiate
payment within thirty days, not, as the majority now holds,
to take steps to initiate payment within thirty days. By in-
terpreting “initiate” as “taking steps to initiate,” the major-
ity effectively relieves GSA of its duty to initiate payment
within a set time, contradicting the contractual language
to which both parties agreed.
Payment is the act of transferring money from one en-
tity to another. Merriam Webster’s Third New Interna-
tional Dictionary defines it as “the act of paying or giving
compensation : the discharge of a debt or an obligation.”
Payment, MERRIAM WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (2002). Similarly, Black’s Law Dictionary de-
fines “payment” as “[p]erformance of an obligation by the
delivery of money or some other valuable thing accepted in
Case: 21-1996 Document: 52 Page: 13 Filed: 06/30/2022
BROWN v. GSA 7
partial or full discharge of the obligation.” Payment,
BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, initiation
of payment must mean initiation of the transfer, not, as the
majority holds, initiation of internal and preliminary steps,
like, say, opening up a file, which may be necessary to even-
tually effectuate a transfer. In the context of this settle-
ment agreement, the requirement to initiate payment must
mean that GSA has completed its internal processes and
instructed its third-party payor to make the payment to
Ms. Brown.
The plain meaning of the contract is enough to inter-
pret it without reference to extrinsic evidence. See, e.g.,
Nutt v. United States,
837 F.3d 1292, 1296 (Fed. Cir. 2016)
(“Where the language is unambiguous . . . the ‘inquiry ends
and the plain language of the Agreement controls,’ so ex-
trinsic evidence need not be considered.” (quoting Coast
Fed. Bank, FSB v. United States,
323 F.3d 1035, 1041 (Fed.
Cir. 2003))). Although reference to extrinsic evidence is not
necessary to interpret the settlement agreement, emails
sent between the parties during and after the thirty-day
period confirm that the contract required GSA to complete
all steps necessary to transfer the back pay payment to Ms.
Brown, not merely take some nominal step towards even-
tual payment.
On August 20, 2019, GSA’s attorney stated that she be-
lieved that GSA “may have already initiated the payments
to [Ms. Brown’s counsel’s] firm and Ms. Brown.” J.A. 45.
(emphasis added). Ms. Brown’s counsel received payment
of attorneys’ fees two days later, but Ms. Brown did not re-
ceive her payment until months later—after she filed a pe-
tition for enforcement. It seems that, where payment to
Ms. Brown’s attorneys was concerned, initiation led to
prompt receipt of payment. Where payment to Ms. Brown
was concerned, there is no reason it should have meant
something different—for example, that only some prelimi-
nary step had been taken.
Case: 21-1996 Document: 52 Page: 14 Filed: 06/30/2022
8 BROWN v. GSA
On August 28, 2019, GSA’s counsel stated that GSA
“has initiated the payment” and that “HR actions had to be
done to reinstate Ms. Brown and the timekeeper needed to
do timecards in HRLinks for the entire period in order gen-
erate the back pay.” J.A. 43. GSA’s counsel noted that pay-
ment “may not reach Ms. Brown until the next EFT pay
date,” September 6, 2019. J.A. 43. While GSA’s counsel
referred to necessary preliminaries (“HR actions” and
“timecards”), she assured Ms. Brown’s counsel that these
preliminary steps had been taken and that payment had
been initiated, although it might not be received until the
next scheduled pay date. In other words, “initiated” signi-
fied expected payment because all processing steps but for
actual payment had already occurred.
It was only two months later, after Ms. Brown filed a
petition for enforcement, that GSA’s counsel evinced a new,
narrower understanding of what it means to “initiate pay-
ment.” On October 30, 2019, GSA’s counsel told Ms.
Brown’s counsel that “[t]he settlement agreement states
that the payment would be initiated within 30 days, with
the understanding that completion of backpay in accord-
ance with 5 CFR 550.805 requires actions from both parties
and information collected by third party sources.” J.A. 53.
In the same email, GSA’s counsel asked for several new
items of information from Ms. Brown. J.A. 53. In all prior
communications, GSA’s communications indicate that it
understood “initiate” to mean something more than taking
some step toward Ms. Brown’s eventual payment and indi-
cate that the payment would be completed soon after initi-
ation—it is only after Ms. Brown filed her petition for
enforcement that GSA’s apparent understanding of “initi-
ate” shrank to “take steps to initiate.”
Finally, “[i]t is ‘a fundamental precept of common law
that the intention of the parties to a contract controls its
interpretation.’” Tri-Star Elecs. Int’l, Inc. v. Preci-Dip Dur-
tal SA,
619 F.3d 1364, 1367 (Fed. Cir. 2010) (quoting Beta
Sys. Inc. v. United States,
838 F.2d 1179, 1185 (Fed. Cir.
Case: 21-1996 Document: 52 Page: 15 Filed: 06/30/2022
BROWN v. GSA 9
1988)). Ms. Brown surely would not have agreed to a con-
tract that permitted GSA to merely take any minor, pre-
liminary step towards eventually paying her back pay
without any deadline for GSA to complete its internal pro-
cessing or any deadline for her actual receipt of the pay-
ment.
B. GSA’s Duty to Complete Payment
in a Reasonable Time
Even if the majority’s interpretation of “initiate” were
correct, GSA still breached its contract with Ms. Brown by
failing to complete its processing of her back payment in a
reasonable time. The settlement agreement required GSA
to pay Ms. Brown back pay, interest, and other benefits.
J.A. 30 (¶ 2). Although there was no deadline for Ms.
Brown’s receipt of that payment, “[t]he government has an
‘ever-present obligation to carry out its contractual duties
within a reasonable time.’” Essex Electro Eng’rs, Inc. v.
Danzig,
224 F.3d 1283, 1291 (Fed. Cir. 2000) (quoting J.D.
Hedin Const. Co. v. United States,
347 F.2d 235, 253 (Ct.
Cl. 1965)).
The other deadlines and dates in the agreement indi-
cate that the parties intended all contractual duties to be
completed quickly. Ms. Brown was required to provide her
banking information within five days of the agreement’s
execution. J.A. 30 (¶ 2). GSA was required to initiate pay-
ment within thirty days of execution. J.A. 30 (¶ 2). And
the latest date in the contract is Ms. Brown’s scheduled re-
tirement date, September 30, 2019—two months after the
contract’s execution date. J.A. 31 (¶ 5). These deadlines,
taken together, indicate that not only were all contractual
duties intended to be performed quickly but also the en-
tirety of the agreement was to be resolved by September
30, 2019, at the latest. When it became clear that Ms.
Brown would not receive payment by September 30, 2019,
her attorney offered to extend that final deadline. J.A. 40,
Case: 21-1996 Document: 52 Page: 16 Filed: 06/30/2022
10 BROWN v. GSA
38. The parties ultimately agreed to an extension until Oc-
tober 31, 2019. J.A. 35; J.A. 37.
But Ms. Brown did not receive her payment by Septem-
ber 30, 2019, or even by October 31, 2019. She did not re-
ceive payment until November 1, 2019—93 days after the
settlement agreement was executed on July 31, 2019, and
10 days after she filed a petition for enforcement on Octo-
ber 22, 2019. J.A. 1; J.A. 5. The time between the con-
tract’s execution date and the date she received payment
was over three times as long as the thirty-day deadline for
GSA to initiate payment and over a month after her origi-
nal contractually required retirement date of September
30, 2019. When considered alongside the other contractual
deadlines, 93 days to render payment to Ms. Brown was
not reasonable, and GSA’s late payment was, therefore, a
breach of the settlement agreement.
C. Other Delayed and Outstanding Duties
In addition to GSA’s breach of its duties to initiate pay-
ment within thirty days and render payment in a reasona-
ble time, Ms. Brown alleges that GSA failed to timely
perform other duties under the settlement agreement. She
alleges that GSA has still not properly processed the can-
cellation of her March 2018 retirement and that, as a re-
sult, she has not been given credit towards retirement
benefits for the period of her federal employment between
April 1, 2018, to October 8, 2019. 1 Appellant’s Br. 10–12.
She also alleges that GSA failed to properly process her
1 After her March 2018 retirement and under the
settlement agreement, GSA agreed to reinstate Ms. Brown
for the period that she was separated (April 1, 2018, to Au-
gust 4, 2019). J.A. 29–30 (¶¶ 1–3). She resumed her fed-
eral employment from August 5, 2019, to October 8, 2019,
when she re-retired while waiting for her delayed back pay-
ment.
Case: 21-1996 Document: 52 Page: 17 Filed: 06/30/2022
BROWN v. GSA 11
back pay in accordance with 5 C.F.R. part 550 and did not
repay to OPM the annuity from her March 2018 retirement
until a year after it should have. Appellant’s Br. 10–11.
She further alleges that GSA has not provided her with
outstanding paperwork OPM needs to process the repay-
ment and calculate her correct retirement annuity. 2 Ap-
pellant’s Br. 11. Finally, she alleges that GSA’s delayed
repayment to OPM of the annuity incorrectly included ben-
efits, resulting in her paying for benefits twice (first
through back pay withholdings and a second time through
GSA withholding the gross amount of the annuity). Appel-
lant’s Br. 11. She alleges that GSA represented to her that
OPM would refund those benefits but maintains that she
has not yet received any refund due to GSA’s failure to
properly process the back pay. Appellant’s Br. 11.
Neither the Board nor the majority addresses these al-
legations. I would remand to the Board to address them in
the first instance.
III. CONCLUSION
For the foregoing reasons, I respectfully dissent. I
would reverse the Board’s determination that Ms. Brown’s
petition for enforcement is moot and remand for the Board
to determine in the first instance whether GSA’s breaches
were material and what, if any, remedy should be awarded.
2 On August 27, 2020—nearly a year after the dead-
line for GSA to initiate payment of Ms. Brown’s back pay—
OPM informed GSA that “GSA needs to provide a corrected
IRR [(Individual Retirement Record)] for the deductions for
both 2018 and 2019, not lumped together but separated out
for each year and for any pay adjustments received.” J.A.
65.
