16-2120 | Omnilex

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GALLEGOS v. MSPB 2
Opinion for the court filed by Circuit Judge D YK, in
which CLEVENGER , Circuit Judge, joins.
Dissenting Opinion filed by Circuit Judge N EWMAN.
D YK, 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 en-
forcement 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-I-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 Admin-
istration (“Agency”) as a Consumer Safety Officer during
the period from 1980 to 2000. He was removed on No-
vember 25, 2000, on the ground that he refused to accept
a job reassignment that required relocation. On Decem-
ber 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

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GALLEGOS v. MSPB 3
Health and Human Servs., Docket No. DA-0752-01-0157-
I-1 (MSPB Mar. 23, 2001). This notice was consistent
with 5 C.F.R. § 1201.182(a), which provides that a peti-
tion 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 “Resigna-
tion ILIA,” which stands for “in lieu of involuntary ac-
tion.” Gallegos argues that the use of this acronym
violated the Agreement. He alleged that he had mis-
placed 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 en-
forcement 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 regard-
ing 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 desig-
nation, 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 enforce-
ment 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

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GALLEGOS v. MSPB 4
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 failure to
compare the SF-50 with the settlement agreement at the
time he received the documents to be less than diligent.”
J.A. 6.
Gallegos petitions for review. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
In his petition for review, Gallegos primarily argues
that the timeliness issue should be resolved in his favor
because the Agency engaged in fraud. We first address
the standard for timeliness and then address Gallegos’s
fraud allegations.
A petition for enforcement of a settlement agreement
must be filed “promptly.” 5 C.F.R. § 1201.182(a). We
have interpreted “promptly” to mean within a “reasonable
time.” Poett v. MSPB, 360 F.3d 1377, 1381 (Fed. Cir.
2004). “The ‘reasonable time’ requirement for filing a
petition for enforcement of a settlement agreement is
conceptually similar to the defense of laches . . . [where]
the plaintiff [cannot] delay[] filing suit for an unreasona-
ble and inexcusable length of time from the time he knew
or reasonably should have known of his claim . . . .” Id. at
1384. Here, Gallegos stated that he first noticed the
notation “Resignation ILIA” in October 2014, but also that
he had been using the SF-50 in question since 2001.
Gallegos did not dispute that he had also received a copy

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GALLEGOS v. MSPB 5
of the Agreement when it was executed (though he later
lost that copy).
Given that the Agreement specifically provided that
Gallegos “will notify the Agency of any concerns within
15-days of receipt of the [revised SF-50] form,” we find no
error in the Board’s conclusion that Gallegos did not
exercise due diligence. “[W]hether the regulatory time
limit for an appeal should be waived based upon a show-
ing of good cause is a matter committed to the Board’s
discretion and this court will not substitute its own judg-
ment for that of the Board.” Mendoza v. MSPB, 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc).
Gallegos alleges that good cause exists because the
Agency engaged in fraud.
His first theory is that the Agency inappropriately al-
tered his SF-50 after he received a copy at the time of the
settlement. There are discrepancies between his copy of
the SF-50 and the one contained in his electronic OPF,
but the AJ noted these minor typographic differences—
slightly larger fonts, the presence or absence of dashes
and parentheses, or stray spaces. None of these bears any
connection to the authenticity of the “Resignation ILIA”
designation on the SF-50.
Gallegos also alleges that even though the Agreement
provided for a “voluntary resignation,” the Agency includ-
ed “Resignation ILIA” on his SF-50 instead, and because
he was not aware that the ILIA acronym stood for “in lieu
of involuntary action,” he was fraudulently induced into
signing the Agreement. According to Gallegos, the Agen-
cy officials had a fiduciary duty to explain this acronym to
him at the time of the Agreement. We disagree.
The Agreement explicitly placed the burden on
Gallegos to review the SF-50, stating that Gallegos “will
be provided with a copy of the revised SF-50 for inspec-
tion, and [Gallegos] will notify the Agency of any concerns

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GALLEGOS v. MSPB 6
within 15-days of receipt of the form.” J.A. 120. Fur-
thermore, as the Board noted, Gallegos was represented
by counsel when executing this settlement. Thus,
Gallegos could have and should have inquired about the
acronym at the time of receiving his revised SF-50. We
find no error in the Board’s conclusion that Gallegos failed
to establish good cause for his untimely filing.
AFFIRMED
COSTS
No costs.

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United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH R. GALLEGOS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2120
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-01-0157-C-1.
______________________
N EWMAN, Circuit Judge, dissenting.
This case should have been resolved without litiga-
tion. The government admits that it violated its Settle-
ment Agreement with Mr. Gallegos, yet refuses to correct
its violation, on the theory that since Mr. Gallegos did not
recognize the code by which the violation was achieved,
the government has no obligation to correct the violation.
Mr. Gallegos requests that his SF-50 form be correct-
ed to comply with the Agreement. The government refus-
es even now to make this simple correction, to remove this
blight on Mr. Gallegos’ record. My colleagues on this
panel place the fault not on the government for violating
the Agreement, but on Mr. Gallegos for not discovering
the violation when it occurred. I respectfully dissent.

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GALLEGOS v. MSPB 2
D ISCUSSION
Mr. Gallegos and the government entered into a Set-
tlement Agreement that the “removal action will be
substituted with a voluntary resignation,” and that a new
SF-50 form would be prepared to “effectuate the resigna-
tion.” Settlement Agreement at 2. A new SF-50 was
issued, stating “Resignation ILIA.” Mr. Gallegos did not
decipher the code word “ILIA.” The question before us is
not how this non-compliance arose; the question is wheth-
er it will be corrected. My colleagues hold that Mr.
Gallegos cannot obtain correction because he did not
request correction immediately. Thus the government
argues, and my colleagues affirm, that the violation of the
Agreement will not be remedied.
The initials ILIA are apparently recognized by per-
sonnel officials as “in lieu of involuntary action” — the
information prohibited by the Settlement Agreement,
which states:
The removal action will be substituted with a vol-
untary resignation. Appellant’s resignation will
be effective on September 29, 2000, which is the
date on which the reassignment became effective.
The Appellant will be provided with a Standard
Form-52, Request for Personnel Action. The Ap-
pellant must indicate the reasons for his resigna-
tion on the SF-52 form. In order to continue
receiving severance pay, appellant must also state
that “Due to personal considerations, I am unable
to relocate to San Antonio, Texas.” The SF-52 will
be dated September 29, 2000. The information in
the SF-52 form will be used to prepare the Notifi-
cation of Personnel Action or SF-50 to effectuate
the resignation. Appellant will be provided with a
copy of the revised SF-50 for inspection, and will
notify the Agency of any concerns within 15 days
of receipt of the form.

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GALLEGOS v. MSPB 3
Settlement Agreement at 2. The Board holds that since
Mr. Gallegos was given a copy of the improperly coded SF-
50 at the time of his separation, he was required to object
within 15 days or forever remain silent. However, such
an obligation does not arise when the error is not readily
recognizable. Technical knowledge of the ILIA acronym
cannot be imputed, at least in the absence of any reason
to be suspicious that the government would undermine its
Agreement, even by clerical error.
Mr. Gallegos filed this petition about two months af-
ter he confirmed the violation. A petition for enforcement
should be filed within a “reasonable time” following actual
knowledge of breach of the Agreement. Kasarsky v.
MSPB, 296 F.3d 1331, 1335 (Fed. Cir. 2002). Mr.
Gallegos did so. Yet the government refuses to correct the
SF-50, although the breach is not denied.
In justice, correction is required, and could easily
have been implemented without this extended litigation.
It is unconscionable to refuse to correct the form. I re-
spectfully dissent.

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Joseph R. Gallegos v. Merit Systems Protection Board

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