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Gallegos v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

December 27, 2016

JOSEPH R. GALLEGOS, Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent

         Petition for review of the Merit Systems Protection Board in No. DA-0752-01-0157-C-1.

          Joseph R. Gallegos, Fayetteville, NC, pro se.

          Sara B. Rearden, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK.

          Before NEWMAN, CLEVENGER, and Dyk, Circuit Judges.

          Dissenting Opinion filed by Circuit Judge NEWMAN.

          OPINION

          Dyk, Circuit Judge.

         Joseph R. Gallegos petitions for review of a final order of the Merit Systems Protection Board ("Board"). The Board dismissed as untimely Gallegos's petition for enforcement of the settlement agreement that resolved his adverse action appeal in Gallegos v. Dep't of Health & Human Services, Docket No. DA-0752-01-0157-1-1 (MSPB Mar. 23, 2001). The Board also found that Gallegos did not establish good cause for untimely filing. We affirm.

         Background

         Gallegos was employed by the Food and Drug Administration ("Agency") as a Consumer Safety Officer during the period from 1980 to 2000. He was removed on November 25, 2000, on the ground that he refused to accept a job reassignment that required relocation. On December 14, 2000, Gallegos filed an appeal with the Board to challenge his removal by the Agency. In March 2001, Gallegos and the Agency entered into a settlement agreement ("Agreement"). The Agreement provided that Gallegos would withdraw his appeal with prejudice, and that the Agency would expunge from Gallegos's Official Personnel File ("OPF") and the Standard Form ("SF-50") any indication that he was removed from his position. Instead, a revised SF-50 would indicate "a voluntary resignation." J.A. 120. The Agreement also stated that Gallegos "will be provided with a copy of the revised SF-50 for inspection, and [Gallegos] will notify the Agency of any concerns within 15-days of receipt of the form." Id.

         The Board approved this settlement and noted that "[a]ny petition for enforcement [of the Agreement] must be filed within a reasonable period of time after you discover the asserted noncompliance." Gallegos v. Dep't of Health and Human Servs., Docket No. DA-0752-01-0157-1-1 (MSPB Mar. 23, 2001). This notice was consistent with 5 C.F.R. § 1201.182(a), which provides that a petition for enforcement of a settlement agreement must be filed "promptly."

         In October 2014, almost 14 years after the settlement, Gallegos alleges that he discovered a breach of the Agreement because his revised SF-50 indicated "Resignation ILIA, " which stands for "in lieu of involuntary action." Gallegos argues that the use of this acronym violated the Agreement. He alleged that he had misplaced the settlement agreement, and he was only able to confirm the breach by obtaining a copy he received in response to a Freedom of Information Act request on April 14, 2015.

         On June 15, 2015, Gallegos filed a petition for enforcement of the settlement agreement with the Board. The administrative judge ("AJ") noted that Gallegos's petition appeared facially untimely. The AJ had ordered Gallegos to address the timeliness issue and to provide information as to when "he learned that his SF-50 regarding his resignation stated[] 'Resignation ILIA.'" J.A. 12. Gallegos responded that he suspected the Agreement had been breached in October 2014 because of the ILIA designation, but that he had been using the SF-50 at issue since 2001. The AJ concluded that Gallegos had received the revised SF-50 indicating "Resignation ILIA" 14 years ago, and determined that the petition was untimely because Gallegos did not establish good cause for the delay. Gallegos v. Dep't of Health & Human Servs., Docket No. DA-0752-01-0157-C-1 (MSPB Sept. 17, 2015).

         On review, the Board affirmed the AJ's finding that Gallegos failed to establish that his petition for enforcement was timely filed. Gallegos v. Dep't of Health & Human Servs., Docket No. DA-0752-01-0157-C-1 (MSPB Mar. 24, 2016). The Board also noted that "[t]o establish good cause for the untimely filing of an appeal, a party must show that he exercised due diligence .... We find the appellant's failure to maintain a copy of the parties' settlement agreement, as well as his apparent ...


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