Jeffrey Forsythe v. Department of Homeland Security

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEFFREY FORSYTHE,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2024-1955
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-0752-20-0266-C-1, SF-0752-20-0266-X-1.
______________________
Decided: January 14, 2025
______________________
JEFFREY FORSYTHE, Long Beach, CA, pro se.
NELSON KUAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM.
______________________
Before PROST, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
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FORSYTHE v. DHS 2
Jeffrey Forsythe was employed by the United States
Department of Homeland Security (DHS). When he left
his job, he alleged that his resignation had been wrongfully
forced, and in 2021 he and DHS settled the dispute. Under
the settlement agreement, Mr. Forsythe was entitled to
receive back pay for certain periods between 2017 and
2021. After DHS calculated his back pay based on earnings
statements submitted by Mr. Forsythe, he filed a petition
for enforcement of the settlement agreement before the
Merit Systems Protection Board, asserting, among other
things, that DHS miscalculated the back pay owed. The
Board-assigned administrative judge (AJ) determined that
DHS had partially breached the settlement agreement and
ordered DHS to recalculate Mr. Forsythe’s back pay. DHS
petitioned the full Board to review the AJ’s order to
recalculate, and Mr. Forsythe cross-petitioned for review of
other aspects of the AJ’s initial decision. The full Board
granted DHS’s petition, vacated the AJ’s order requiring
DHS to recalculate Mr. Forsythe’s back pay, and dismissed
Mr. Forsythe’s cross-petition. Forsythe v. Department of
Homeland Security, 2024 WL 1599152 (M.S.P.B. Apr. 11,
2024) (Final Order). On Mr. Forsythe’s appeal to us, we
affirm.
I
Mr. Forsythe, after alleging that he had been
unlawfully forced to resign on August 25, 2017, from his
position at the Transportation Security Administration
(TSA), a division of DHS, entered into a settlement
agreement with DHS in 2021. Final Order, at *1; Forsythe
v. Department of Homeland Security, MSPB Docket No.
SF-0752-20-0266-I-1, Initial Appeal File, Tab 38 at 4–10
(Settlement Agreement). Under the settlement agreement,
Mr. Forsythe was to be reinstated to a Federal Air Marshal
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FORSYTHE v. DHS 3
position, retroactively to August 26, 2017. Settlement
Agreement, at 4.1
In addition to reinstatement, the agreement provided
that DHS would compensate Mr. Forsythe for the period
between August 26, 2017, and the date of his reinstatement
in 2021. Final Order, at *1; Settlement Agreement, at 4–5.
Specifically, those three and a half years were segmented
into six month periods, which were designated in the
settlement agreement as alternating between leave-
without-pay (LWOP) status and pay status. Final Order,
at *1. The first half of each calendar year (January through
June) was a LWOP period, and the second half (July
through December) was a pay period. Id. For the pay
periods, DHS agreed to pay Mr. Forsythe “the appropriate
amount of back pay, commensurate with the Agency’s
Management Directive No. 1100.55-10, Back Pay, and the
Agency’s Handbook to MD 1100.55-10.” Id.; Settlement
Agreement, at 4–5; see also Forsythe v. Department of
Homeland Security, MSPB Docket No. SF-0752-20-0266-C-
1, Compliance and Petition for Review File, Tab 1 at 46–60
(Handbook), 61–66 (Management Directive). Under TSA
Handbook to Directive No. 1100.55-10, back pay includes
“[a]ny gross pay . . . to which the employee would have been
entitled” minus “[a]ny amounts earned by an employee
from other employment . . . undertaken during the time the
employee was separated.” Handbook, at 6–7.
Mr. Forsythe was employed by American Airlines
during the relevant 2017–2021 period, so DHS deducted
his earnings from that job when calculating the back pay it
would pay. Mr. Forsythe submitted a declaration on July
29, 2020, stating that his “regular earnings . . . not
including bonuses” from American Airlines were about
1 For the Settlement Agreement, Management
Directive, and Handbook, we cite to the page numbers
listed on those documents in the MSPB Case Files.
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FORSYTHE v. DHS 4
$90,000 for 2018, $96,000 for 2019, and $54,000 for a
portion of 2020—a total of about $240,000. Appx. 74.2 Mr.
Forsythe later submitted “year-end pay statements from
American Airlines” that indicated higher annual earnings
overall, totaling about $366,000 for 2018–2020. S. Appx.
24.3 The year-end pay statements, unlike Mr. Forsythe’s
declaration, included incentive payments and bonuses
from American Airlines “received primarily during the
months of January through June of each year,” i.e., the
LWOP periods. S. Appx. 79. DHS “requested no other
information from Mr. Forsythe” to calculate his deduction.
S. Appx. 76. DHS calculated the deduction for each six-
month pay period by “cut[ting] in half” his annual earnings,
and because the deduction amount “exceeded [Mr.
Forsythe’s] TSA earnings, there [was] no back pay due.” S.
Appx. 79.
On June 17, 2021, Mr. Forsythe petitioned the Board
for enforcement of the settlement agreement, alleging that
DHS incorrectly calculated his back pay. Specifically, Mr.
Forsythe argued, regarding the deductions based on
outside earnings (from his private employment), that DHS
should have used “actual numbers from the actual
period[s]” of July through December rather than using his
annual earnings divided in half, because the basis DHS
used “captured . . . bonuses which otherwise would not
have been reflected.” S. Appx. 79. Mr. Forsythe also
argued, regarding the government pay from which
deductions were made, that DHS’s calculation wrongly
excluded overtime pay, performance-based increases, per
diem allowances, bonuses, and interest. Mr. Forsythe
again made those arguments in his October 4, 2021 pre-
2 “Appx.” refers to the Appendix submitted with Mr.
Forsythe’s Informal Brief.
3 “S. Appx.” refers to the Supplemental Appendix
submitted with DHS’s Informal Brief.
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FORSYTHE v. DHS 5
hearing submission, which also included arguments that
he was entitled to differential pay for work at night and
that DHS had failed to expunge Mr. Forsythe’s resignation
and reinstatement from his official personnel folder.
The Board’s assigned AJ issued an initial decision on
the petition for enforcement on February 9, 2022. Forsythe
v. Department of Homeland Security, 2022 WL 445103
(M.S.P.B. Feb. 9, 2022) (Initial Decision).4 The AJ
determined, in relevant part, that DHS had not breached
the settlement agreement’s back-pay requirements either
by calculating deductions based on annual earnings, which
included bonuses earned during LWOP periods, or by
calculating gross pay without including overtime pay or per
diem allowances. Id. at 6–10, 17–22. The AJ also
determined that DHS had not breached the settlement
agreement by not expunging Mr. Forsythe’s resignation.
Id. at 4–6. Yet, despite finding no breach of the settlement
agreement for DHS’s deduction calculation, the AJ ordered
DHS to recalculate the deductions to Mr. Forsythe’s back
pay “based on the appellant’s actual earnings during the
back pay period (i.e., July 1, 2018 through December 31,
2018, July 1, 2019 through December 31, 2019, and July 1,
2020 through December 31, 2020).” Id. at 27.
DHS sought full Board review of the AJ’s decision,
arguing that “it should not be required to recalculate [Mr.
Forsythe’s] outside earnings because it did not breach the
settlement agreement.” Final Order, at *2. Mr. Forsythe,
by cross-petition, also sought full Board review, arguing
that DHS had “breached the settlement agreement when it
improperly calculated his outside earnings, excluded
overtime and per diem allowances from his back pay, and
improperly reduced his night differential pay by using a
4 For the Initial Decision, we cite the page numbers
on the version provided in the Supplemental Appendix.
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FORSYTHE v. DHS 6
sample year that was not representative of his regular
schedule.” Id.
The Board agreed with the AJ that DHS’s deduction
calculation was compliant with the settlement agreement.
Id. at *3. Because Mr. Forsythe “did not provide the agency
with his individual paystubs until the prehearing
submissions,” and DHS “would have had no reason to know
that the bonus schedule of American Airlines coincided
with the periods the appellant was in LWOP status,” the
annual earnings methodology was reasonable based on the
documentation Mr. Forsythe actually submitted to DHS.
Id. And because there was no breach, the Board found that
“it was improper for the [AJ] to order a correction” and
vacated the order requiring DHS to recalculate Mr.
Forsythe’s back pay. Id.
The Board denied Mr. Forsythe’s cross-petition, finding
that “the agency’s exclusion of overtime pay and per diem
allowances, as well its calculation of the night differential
pay, [wa]s ‘commensurate’ with its Handbook and
Management Directive,” which were “silent on th[o]se
topics.” Id. at *3–4. The Board also dismissed Mr.
Forsythe’s petition for enforcement as “moot” because there
was “no further relief that the Board [could] provide.” Id.
at *4–5.
Mr. Forsythe timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We may set aside the Board’s decision 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). The petitioner bears the burden of
establishing reversible error in the Board’s final decision.
Sistek v. Department of Veterans Affairs, 955 F.3d 948, 953
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FORSYTHE v. DHS 7
(Fed. Cir. 2020). We review the Board’s legal conclusions
without deference and its findings of fact for substantial-
evidence support. McIntosh v. Department of Defense, 53
F.4th 630, 638 (Fed. Cir. 2022). “Substantial evidence
consists of ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’”
Frederick v. Department of Justice, 73 F.3d 349, 352 (Fed.
Cir. 1996) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
A party breaches a settlement agreement by being “in
material non-compliance” with its terms. Gilbert v.
Department of Justice, 334 F.3d 1065, 1071 (Fed. Cir. 2003).
Whether a breach has occurred is a mixed question of law
and fact: Determining what the parties did or did not do is
a factual inquiry, while determining what was required
under the settlement agreement is a legal one. Id. at 1071–
72.
A
Mr. Forsythe challenges the Board’s decision on the
ground that DHS’s deduction calculation breached the
settlement agreement by including outside-employment
bonuses Mr. Forsythe earned during the LWOP periods.
Forsythe Informal Br. at 4. We reject this challenge.
The Board found, and Mr. Forsythe does not dispute,
that Mr. Forsythe submitted only annual-earnings
information about his relevant outside earnings (which
included bonuses earned for time including LWOP periods)
as his response to DHS’s request for “complete wage and
earning information.” Initial Decision, at 8 (emphasis
added); see also Final Order, at *3. Although Mr. Forsythe
argues that “[t]he additional pay statements were
subsequently provided at a reasonable time thereafter,”
those additional statements were not provided until after
Mr. Forsythe filed his petition for enforcement—after DHS
made the back-pay calculation. Forsythe Informal Br. at
12; Final Order, at *3 (citing Forsythe v. Department of
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FORSYTHE v. DHS 8
Homeland Security, MSPB Docket No. SF-0752-20-0266-C-
1, Compliance and Petition for Review File, Tab 18 at 76–
118). DHS did not breach the settlement agreement by
using the information Mr. Forsythe provided to it at the
time the calculation was to be made and was made.
Although Mr. Forsythe argues that DHS should have
requested paystubs because of its “responsibility . . . to
ensure accurate calculations,” Forsythe Informal Br. at 8
(citing Rosario-Fabregas v. Department of the Army,
No. 22-2280, 2023 WL 3702393, at *5–6 (Fed. Cir. May 30,
2023)), the Board found that Mr. Forsythe, not DHS, had
“reason to know that the bonus schedule of American
Airlines coincided with the periods [Mr. Forsythe] was in
LWOP status, and thus, the onus was on [Mr. Forsythe] to
provide the agency with the information that [Mr.
Forsythe] deemed necessary,” Final Order, at *3. The AJ
explained that DHS “did not have any information that
would reflect whether the appellant’s pay during the final
six months of each year was different than in the first six
months.” Initial Decision, at 9. Given Mr. Forsythe’s
superior knowledge about his own pay schedule, and his
failure to “provide the agency with his individual paystubs
until the prehearing submissions,” the Board had
substantial evidence to determine that “it was reasonable
for the agency to use [his] documentation to calculate [his]
outside earnings.” Final Order, at *3. And Mr. Forsythe
has made no persuasive showing that it was legal error for
the Board to interpret the settlement agreement to permit
such use.
Mr. Forsythe asserts that DHS intentionally “created
complexity . . . to reduce their back pay liability,” Forsythe
Informal Br. at 4, but that argument was not presented to
the AJ and therefore was forfeited. See Bosley v. Merit
Systems Protection Board, 162 F.3d 665, 668 (Fed. Cir.
1998) (requiring party to “raise an issue before the [AJ]” for
it to be preserved for review); see also Holmes v. United
States Postal Service, 987 F.3d 1042, 1047 (Fed. Cir. 2021).
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FORSYTHE v. DHS 9
Likewise forfeited were Mr. Forsythe’s arguments that he
“reasonably believed that the [background] [i]nvestigator
would request certified copies directly from [American
Airlines],” Forsythe Informal Br. at 12, and that a cited
checklist “calls out ‘pay period level documents as
supporting info,’” id. at 8. And Mr. Forsythe does not cite
to any evidence in the record to support his allegation that
DHS acted in “bad faith.” See id. at 1, 23–25.
Accordingly, we see no reversible error in the Board’s
conclusion that DHS did not breach the settlement
agreement and that it was improper for the AJ to require
DHS to recalculate back pay.
B
Next, Mr. Forsythe argues that the Board erred in
upholding DHS’s exclusion of overtime and per diem
allowances from the pre-deduction amount in calculating
back pay. Id. at 14–22. We disagree.
The settlement agreement indicates that the
“appropriate amount of back pay” should be determined
“commensurate with the Agency’s Management Directive
No. 1100.55-10, Back Pay, and the Agency’s Handbook to
MD 1100.55-10,” and there is no indication in the
Management Directive or Handbook that overtime pay and
per diem allowances should be included. Settlement
Agreement, at 4–5; Management Directive, at 3, 5;
Handbook, at 6–7. The Board correctly concluded that,
because the TSA Handbook “does not include any reference
to overtime pay [or] per diem allowance,” DHS’s “exclusion
of overtime pay and per diem allowances . . . is
‘commensurate’ with its Handbook and Management
Directive” and thus does not constitute a breach of the
settlement agreement. Final Order, at *4 (citing
Handbook, at 6–7).
Mr. Forsythe argues that consideration of overtime pay
and per diem allowances is required because the
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FORSYTHE v. DHS 10
Management Directive “was based on the Title 5 Back Pay
Act,” which he understands to require such consideration.
Forsythe Informal Br. at 14–15. But he did not present
that that argument to the AJ, and the argument is
therefore forfeited. Accordingly, we see no reversible error
in the Board’s ruling that the exclusion of overtime pay and
per diem allowances did not breach the settlement
agreement. Final Order, at *4.
C
Finally, Mr. Forsythe argues that the Board erred by
not requiring DHS to expunge his resignation from his
Official Personnel Folder. Forsythe Informal Br. at 20–21.
We see no such error. As the AJ explained, “[t]he term
‘reinstate’ in [the relevant] provision [of the settlement
agreement], and the identified effective date, reflect that
the appellant would be considered to be off the rolls prior
to August 26, 2017, which is consistent with the appellant’s
resignation remaining in the record.” Initial Decision, at
5. In other words, if Mr. Forsythe’s resignation on August
25, 2017, were expunged, it would not make sense for the
settlement agreement to require that he be reinstated on
August 26, 2017. And Mr. Forsythe’s arguments regarding
TSA Form 1155-1A, Forsythe Informal Br. at 20–21, were
not made before the AJ and, thus, were forfeited.
Accordingly, we see no reversible error in the Board’s
conclusion that Mr. Forsythe’s separation should not be
expunged.
III
We have reviewed the remainder of Mr. Forsythe’s
arguments and find them unavailing. Because there is no
reversible error in the Board’s decision, we affirm.
The parties shall bear their own costs.
AFFIRMED
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