JOSEPH R. GALLEGOS, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent
for review of the Merit Systems Protection Board in No.
R. Gallegos, Fayetteville, NC, pro se.
B. Rearden, Office of the General Counsel, Merit Systems
Protection Board, Washington, DC, for respondent. Also
represented by BRYAN G. POLISUK.
NEWMAN, CLEVENGER, and Dyk, Circuit Judges.
Dissenting Opinion filed by Circuit Judge NEWMAN.
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.
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.
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
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.
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).
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