Miguel P. Reyes v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
MIGUEL P. REYES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1717
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0153-C-1.
______________________
Decided: November 21, 2025
______________________
JEFF T. SCHRAMECK , Schrameck Law, PLLC, Canton,
MI, argued for petitioner.
ELIZABETH W. F LETCHER, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, argued for respondent. Also represented by
ALLISON J ANE BOYLE , K ATHERINE M ICHELLE SMITH .
______________________
Before M OORE, Chief Judge, PROST and T ARANTO , Circuit
Judges.
PROST, Circuit Judge.
Case: 24-1717 Document: 36 Page: 1 Filed: 11/21/2025

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REYES v. MSPB 2
Miguel P. Reyes petitions from a final decision of the
Merit Systems Protection Board (“Board”) dismissing his
petition for enforcement (“PFE”) as untimely. Reyes v.
Dep’t of Veterans Affs., No. SF-0752-13-0153-C-1, 2024 WL
800254, at *1 (M.S.P.B. Feb. 26, 2024) (“Final Decision”)
(adopting the initial decision, Reyes v. Dep’t of Veterans
Affs., No. SF-0752-13-0153-C-1, 2018 MSPB LEXIS 2116
(June 11, 2018) (“Initial Decision”), as the Board’s final de-
cision). For the reasons below, we reverse and remand.
BACKGROUND
Mr. Reyes worked as a police officer with the Depart-
ment of Veterans Affairs (“VA”) at the VA Central Califor-
nia Healthcare System (“CCHCS”). In 2012, the VA
removed him from his position, and he appealed to the
Board. In 2013, Mr. Reyes entered into a settlement agree-
ment with the VA, resolving his appeal. As a result, the
Board dismissed his appeal as settled and entered the set-
tlement agreement into its record for enforcement. Under
the settlement agreement, the VA would provide Mr. Reyes
with a neutral employment reference as follows:
The CCHCS Director (or that person’s specific de-
signee) will provide to Mr. Reyes a letter regarding
Mr. Reyes, stating only dates of employment, job
title, and, that it is the policy of the CCHCS to give
only this information, and that Mr. Reyes’s employ-
ment at CCHCS ended due to resignation. The par-
ties further agree that the contents of the letter
referenced herein shall be in the form and contain
the information set forth in Exhibit “A” to the
Agreement. . . . For a period of six months, if the
CCHCS Director (or that person’s specific designee)
receives an employment inquiry concerning
Mr. Reyes, the response will be to provide the same
information as is contained in Exhibit “A” to the
Agreement. After the six month period has passed,
Mr. Reyes will be obligated to refer any reference
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REYES v. MSPB 3
to the CCHCS’s Human Resources Management
Service.
J.A. 85.
In January 2018, Mr. Reyes filed a PFE of the settle-
ment agreement with the Board, arguing that the VA
breached the settlement agreement. He alleged that in
2016, he received a conditional job offer for a Department
of Homeland Security (“DHS”) law enforcement specialist
position that was subject to completion of a satisfactory
background investigation by the Office of Personnel Man-
agement (“OPM”). In June or July of 2016, he informed the
OPM investigator that he voluntarily resigned from the
VA, but the investigator indicated that OPM knew there
were issues surrounding his separation from the VA.
Mr. Reyes received a copy of the OPM background investi-
gation in November 2016, and it reported that the VA Hu-
man Resources (“HR”) officer told OPM that “per a binding
legal agreement, [she] was only allowed to release
[Mr. Reyes’s] dates of employment.” J.A. 182. In June
2017, DHS requested clarification of his termination with
the VA, and he responded by sending a copy of the settle-
ment agreement. Mr. Reyes received a letter from DHS in
September 2017, revoking his conditional job offer. He sub-
sequently sought legal counsel, which he obtained in De-
cember 2017. On January 10, 2018, through his counsel,
Mr. Reyes informed the VA of the alleged breach and that
he would file a PFE on or after January 17, 2018, if he re-
ceived no response. He filed his PFE on January 18, 2018,
after receiving no response from the VA. Mr. Reyes argued
that the VA HR officer’s disclosure to OPM of a binding le-
gal agreement violated the terms of the settlement agree-
ment and caused him to lose his DHS employment
opportunity.
The VA moved to dismiss Mr. Reyes’s PFE, arguing
that the PFE was untimely filed and that the VA complied
with the settlement agreement. On June 11, 2018, the
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REYES v. MSPB 4
administrative judge (“AJ”) issued an initial decision, dis-
missing the PFE as untimely.1 Initial Decision,
2018 MSPB LEXIS 2116, at *14. The AJ found that
Mr. Reyes became aware of the alleged breach in Novem-
ber 2016 when he received a copy of the OPM background
investigation. The AJ deemed Mr. Reyes’s fourteen-month
“delay unreasonable under the circumstances presented.”
Id. at *12.
Mr. Reyes filed a petition for Board review of the initial
decision. The Board denied his petition for review and af-
firmed the AJ’s initial decision, which became the Board’s
final decision. Final Decision, 2024 WL 800254, at *1. The
Board determined that “[e]ven if [it] were to accept as true
[Mr. Reyes’s] argument that he did not have ‘actual
knowledge’ of the agency’s purported breach of the agree-
ment until he suffered the consequences of the breach,
when his pending job offer from the [DHS] was rescinded
in September 2017, [it] would still find that [Mr. Reyes’s
PFE]—filed nearly 4 months later—was not filed within a
reasonable amount of time after he learned of the pur-
ported breach.” Id. at *1 n.2. The Board stated that
“[o]ther than asserting that he was waiting until he had
secured legal counsel to file a petition for enforcement,
[Mr. Reyes] has not offered any explanation for his untime-
liness.” Id.
Mr. Reyes timely petitioned this court 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) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
1 Because the AJ dismissed the PFE as untimely, he
did not address whether the VA breached the settlement
agreement.
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REYES v. MSPB 5
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” See 5 U.S.C.
§ 7703(c). The petitioner bears the burden of establishing
reversible error in the Board’s final decision. Sistek v. Dep’t
of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020). We
review the Board’s legal decisions de novo and its findings
of fact for substantial-evidence support. McIntosh v. Dep’t
of Def., 53 F.4th 630, 638 (Fed. Cir. 2022).
“Any party may petition the Board . . . for enforcement
of the terms of a settlement agreement that has been en-
tered into the record.” 5 C.F.R. § 1201.182(a). “[A]n en-
forcement petition alleging a breach of a settlement
agreement must be filed within a reasonable amount of
time of the date the petitioning party becomes aware of a
breach of the agreement.” Kasarsky v. MSPB, 296 F.3d
1331, 1335 (Fed. Cir. 2002).
On petition to this court, Mr. Reyes argues that the
Board erred in its timeliness decision. He contends that he
should not be penalized for waiting to identify an actual
harm before filing a PFE. Specifically, he submits that
while he learned of the VA HR officer’s disclosure in No-
vember 2016, it was not until DHS revoked his conditional
offer in September 2017 that he recognized that the disclo-
sure had a harmful effect. The Board responds that
Mr. Reyes had actual knowledge of the alleged breach in
November 2016 and that the Board properly determined
that his fourteen-month delay was unreasonable. We
agree with Mr. Reyes that the Board erred in dismissing
his PFE as untimely.
We first note that our decision here is limited to the
context of settlement agreements with no set PFE filing
time limits. The only standard is reasonableness of the
time periods. Our decision has no bearing on cases con-
cerning specifically set filing time limits and any good-
cause requirements for delays beyond the set time limits.
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REYES v. MSPB 6
We next turn to the Board’s decision. We conclude that
Mr. Reyes filed his PFE within a reasonable amount of
time. First, the ten-month period—from November 2016 to
September 2017—was reasonable. “The reasonableness of
the time period depends on the circumstances of each case.”
Kasarsky, 296 F.3d at 1335. Here, the fact that Mr. Reyes
waited until he knew there was harm from the alleged
breach was not unreasonable. He already had a condi-
tional job offer from DHS and he had no reason to know in
November 2016 that the alleged breach would lead to re-
voking his offer. He had suffered no harm on which to base
a claim. Mr. Reyes only learned of the harm from the al-
leged breach in September 2017 when DHS revoked his
conditional job offer. Under the circumstances, it was not
unreasonable for him to file his PFE only after he learned
of the harm. Thus, even if we agree with the Board that
Mr. Reyes became aware of the alleged breach in Novem-
ber 2016, the ten-month period until September 2017 was
reasonable.
Second, the four-month period—from September 2017
to January 2018—was also reasonable. Contrary to the
Board’s decision, Mr. Reyes did not only seek counsel dur-
ing the four months. See Final Decision, 2024 WL 800254,
at *1 n.2. Instead, once Mr. Reyes retained counsel in De-
cember 2017, he contacted the VA through his counsel the
very next month. He then filed the PFE eight days later,
after receiving no response from the VA. Indeed, the Board
has previously determined that a four-month period that
included contacting the agency was reasonable. See, e.g.,
Phillips v. Dep’t of Homeland Sec., 118 M.S.P.R. 515, 520
(2012); Bostick v. Dep’t of Health & Hum. Servs., 63
M.S.P.R. 399, 402 (1994).
Accordingly, we determine that Mr. Reyes filed his
PFE within a reasonable amount of time of the date he be-
came aware of the alleged breach. We therefore reverse the
Board’s decision and remand for further proceedings.
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REYES v. MSPB 7
CONCLUSION
We have considered the Board’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
reverse the Board’s decision and remand for further pro-
ceedings.
REVERSED AND REMANDED
COSTS
Costs to Petitioner.
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