Monte Parham v. Department of Homeland Security ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONTE M. PARHAM DOCKET NUMBERS
Appellant, DA-0432-16-0254-I-1
DA-1221-15-0345-W-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: July 20, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Stephanie Bernstein, Esquire, Dallas, Texas, for the appellant.
Shaun Southworth, Esquire and Terina Williams, Esquire, Atlanta, Georgia,
for the appellant.
Benjamin Owen and Daniel Rodriguez, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision s, which
dismissed the appellant’s individual right of action (IRA) appeal and his
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
chapter 43 removal appeal as settled. 2 For the reasons discussed below, we
GRANT the agency’s petition for review, VACATE the initial decisions, and
REMAND both appeals to the regional office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 On April 24, 2015, the appellant filed an IRA appeal with the Board .
Parham v. Department of Homeland Security, MSPB Docket
No. DA-1221-15-0345-W-1, Initial Appeal File (W-1 AF), Tab 1. Thereafter, on
March 1, 2016, he filed an appeal challenging his chapter 43 removal. Parham v.
Department of Homeland Security, MSPB Docket No. DA-0432-16-0254-I-1,
Initial Appeal File (IAF), Tab 1. The appeals were assigned to different
administrative judges. Following a hearing on his IRA appeal, but prior to a
hearing on his removal appeal, the parties entered into an oral settlement
agreement that resolved both matters. W-1 AF, Tab 30; IAF, Tab 30. 3
The agency agreed to rescind the appellant’s removal and reinstate him.
W-1 AF, Tab 30; IAF, Tab 30. It further agreed that, once it rescinded the
appellant’s removal, it would place him in a sick leave status from the date of
reinstatement until his return to work. W-1 AF, Tab 30; IAF, Tab 30.
Thereafter, on June 8, 2016, the administrative judges issued two separate initial
decisions entering the settlement agreement into the record and dismissing each
2
We JOIN the two appeals under 5 C.F.R. § 1201.36(b), because doing so would
expedite the processing of the appeals without adversely affecting the interests of the
parties. On remand, the regional office may elect to sever these appeals, if appropriate.
See 5 C.F.R. § 1201.36.
3
In both its petition for review and reply, the agency indicates that the record does not
contain a complete recording of the parties’ oral settlement agreement. Parham v.
Department of Homeland Security, MSPB Docket No. DA-0432-16-0254-I-1, Petition
for Review File, Tab 2 at 4 n.1, Tab 5 at 4. Although the record of the appellant’s IRA
appeal contains only a partial recording of the oral agreement, W-1 AF, Tab 30, the
record of the appellant’s chapter 43 removal appeal contains the complete recording,
IAF, Tab 30.
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appeal as settled. W-1 AF, Tab 31, Initial Decision; IAF, Tab 31,
Initial Decision.
¶3 The agency has filed a petition for review for both appeals in which it
asserts that the settlement agreement should be set aside based upon the parties’
mutual mistake because Federal regulations prevent it from placing the appellant
in a sick leave status when he was not incapacitated. Parham v. Department of
Homeland Security, MSPB Docket No. DA-1221-15-0345-W-1, Petition for
Review File, Tab 1 at 4-11; Parham v. Department of Homeland Security,
MSPB Docket No. DA-0432-16-0254-I-1, Petition for Review (PFR) File, Tab 2
at 4-11, Tab 7 at 4-5. The appellant has responded, asserting that the settlement
agreement was not unlawful and should instead be set aside based upon the
agency’s refusal to abide by the agreement. PFR File, Tab 4 at 3. The appellant
does not appear to assert that the agency failed to properly reinstate him. 4
PFR File, Tab 2 at 14-15, Tab 4 at 3. The agency has filed a reply wherein it
avers that it did not act in bad faith and that it is unable to lawfully comply with
an essential term of the settlement agreement. PFR File, Tab 5 at 4-6.
ANALYSIS
¶4 It is well settled that a settlement agreement is a contract between the
parties that may be set aside or voided only on the basis of certai n limited
grounds, including fraud or a mutual mistake of material fact under which both
parties acted. Vance v. Department of the Interior, 114 M.S.P.R. 679, ¶ 12
(2010). A mutual mistake of fact is a shared, mistaken belief of the parties
regarding a material assumption of fact underlying their agreement. Id.¶5 Here, both parties entered into the settlement agreement under the
assumption that the agency had the authority to place the appellant in a sick leav e
status. W-1 AF, Tab 30; IAF, Tab 30; PFR File, Tab 2 at 17-18. The parties
4
The appellant avers in his response that the agency’s “bad faith negotiations” caused
him “to endure additional time without employment,” PFR File, Tab 4 at 3; however, it
appears that he is referring to his inability to use sick leave, PFR File, Tab 2 at 14.
4
were mistaken, however, because the agency may only place an employee in a
sick leave status under certain circumstances specified by regulation, such as
when he is incapacitated. 5 C.F.R. §§ 630.401(a), 630.405(a). We find that this
mistake relates to a material assumption of fact underlying the settlement
agreement because, as the parties state, without the ability to place the appellant
in a sick leave status, the agency cannot comply with the settlement agreement .
PFR File, Tab 2 at 9-10, 14; see Brady v. Department of the Navy, 95 M.S.P.R.
619, ¶ 8 (2004). Thus, the settlement agreement must be set aside. See Miller v.
Department of Defense, 45 M.S.P.R. 263, 266 (1990) (finding that a settlement
agreement that granted the appellant retroactive administrative leave for 1 year
should be set aside based upon a mutual mistake because the agency lacked
discretion to authorize a grant of administrative leave for an extended period of
time under the circumstances of the case); see also Mansfield v. National
Mediation Board, 103 M.S.P.R. 237, ¶ 23 (2006) (recognizing that the Board has
the discretion not to accept a settlement agreement into the record for
enforcement purposes when it provides the appellant with pay and benefits not
authorized by law).
¶6 When a settlement agreement must be set aside because of the failure of an
essential part of the agreement but the appellant has obtained other benefits
pursuant to that agreement, such as reinstatement, the Board has found it
appropriate to offer the appellant a choice between reinstating his appeal or
accepting the settlement agreement as is. Vance, 114 M.S.P.R. 679, ¶¶ 16-17.
Accordingly, upon remand, the administrative judge shall inquire whether the
appellant wishes to reinstate his appeals or accept the settlement agreement
notwithstanding the agency’s failure to place him in a sick leave status for the
relevant period. Alternatively, the parties may choose to negotiate a new
settlement agreement. The administrative judge then shall issue a new initial
decision.
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¶7 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.