Wayne Stockley v. Department of the Treasury ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE STOCKLEY, DOCKET NUMBER
Appellant, DE-1221-15-0167-W-2
v.
DEPARTMENT OF THE TREASURY, DATE: December 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.
Richard I. Anstruther, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the February 1, 2016 initial
decision in this individual right of action appeal. Refiled Appeal File, Tab 2,
Initial Decision; Petition for Review (PFR) File, Tab 1. For the reasons set forth
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
below, we VACATE the initial decision, and DISMISS the referenced appeal as
settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
July 29, 2016, and by the agency on August 5, 2016. PFR File, Tab 4. The
document provides, among other things, for the dismissal of the appeal. Id.,
¶ 3.2.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, understand its terms, and intend
to have the agreement entered into the record for enforcement by the Board. See
Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 149 (1988). We find here that
the parties have, in fact, entered into a settlement agreemen t, that they
understand the terms, and that they agree that the agreement will not be entered
into the record for enforcement by the Board. PFR File, Tab 4, ¶ 10.3. 2
¶4 Accordingly, we find that dismissal of the petition for appeal “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances.
¶5 This is the final order of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulation, section 1201.113 ( 5 C.F.R.
§ 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit.
2
Although the parties acknowledge that the referenced settlement agreement will not be
entered into this record for enforcement purposes, the identical settlement agreement
will be entered into the record in a related appeal over which Board jurisdiction has
been found. PFR File, Tab 4, ¶¶ 3.1, 3.2, and 10.3.
3
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed . See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concern ing your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any
other court of appeals of competent jurisdiction, but not both. Once you choose
to seek review in one court of appeals, you may be precluded from seeking
review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information
about the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
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courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.