Maurice Pierre v. Department of Homeland Security ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAURICE W. PIERRE, DOCKET NUMBER
Appellant, NY-0752-15-0240-C-1
v.
DEPARTMENT OF HOMELAND DATE: April 4, 2022
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Louis D. Stober, Esquire, Garden City, New York, for the appellant.
J. Douglas Whitaker, Esquire, Omaha, Nebraska, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which dismissed his petition for enforcement of a settlement agreement
for lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 As the administrative judge found in the compliance initial decision, t he
appellant filed a Board appeal alleging that he involuntarily retired from his
Special Agent position with the agency. Pierre v. Department of Homeland
Security, MSPB Docket No. NY-0752-15-0240-C-1, Compliance File (CF), Tab 9,
Compliance Initial Decision (CID) at 2. The parties reached a settlement
resolving the appeal. Pierre v. Department of Homeland Security, MSPB Docket
No. NY-0752-15-0240-I-2, Appeal File (I-2 AF), Tab 21 at 6-11. The
administrative judge issued an initial decision dismissing the appeal as settled.
I-2 AF, Tab 22, Initial Decision (ID) at 1-2. She stated that the parties agreed not
to make the settlement agreement enforceable by the Board, and thus, the
agreement was accepted into the record only to document the disposition of the
appeal. ID at 2.
¶3 The appellant thereafter filed a petition for enforcement with the Board
alleging that the agency breached the terms of the settlement agreement. CF,
Tab 1. In a show cause order, the administrative judge informed the appellant
that the Board may not have jurisdiction over his petition for enforcement and
3
ordered him to file evidence and argument on the jurisdictional issue . CF, Tab 4.
The appellant responded. CF, Tab 7.
¶4 The administrative judge issued a compliance initial decision dismissing the
petition for enforcement for lack of jurisdiction. CID at 1-3. Specifically, she
found that, because the settlement agreement was not entered into the record for
enforcement purposes due to an unresolved issue of Board jurisdiction over the
underlying appeal, the Board lacks the authority to enforce the agreement. CID
at 2. She also found that, although the appellant indicated that he wished to file a
petition for review concerning the breach issue, a petition for review must be
filed with the Clerk of the Board. CID at 1 n.1. She further found that, to the
extent he was attempting to file a petition for review with the field office, such a
motion was denied. Id.¶5 The appellant has filed a petition for review of the compliance initial
decision. Petition for Review (PFR) File, Tab 1. He reasserts that the agency
breached the terms of the settlement agreement by providing an inadequate “good
guy” letter. Id. at 5-7; CF, Tab 1 at 3-4. In addition, he requests that either the
Board grant his petition for enforcement and reverse the compliance initial
decision, or “the Petition be deemed a new Petition for a violation of [his] rights
as expressed in the settlement agreement.” PFR File, Tab 1 at 5. He also submits
his response to the administrative judge’s show cause order with exhibits and the
compliance initial decision. Id. at 11-34. 2 The agency has filed a response. PFR
File, Tab 3.
2
We need not consider these submissions because they do not constitute new evidence .
See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (finding that
evidence that is already a part of the record is not new); see also 5 C.F.R. § 1201.115(d)
(specifying that the Board may grant a petition for review based on new and material
evidence). Furthermore, these submissions are immaterial to whether the Board has
jurisdiction over the appellant’s petition for enforcement, and thus, do not warrant a
different outcome than that of the compliance initial decision.
4
¶6 For the following reasons, we agree with the administrative judge’s finding
that the Board lacks jurisdiction over the appellant’s petition for enforcement. 3
CID at 2-3. It is well settled that the Board lacks authority to enforce a
settlement agreement that was not entered into the Board’s record for
enforcement purposes. Barker v. Department of Agriculture, 100 M.S.P.R. 695,
¶ 6 (2006); Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583
(1994). Here, the settlement agreement is silent regarding whether it should be
entered into the record for purposes of enforcement by the Board, and the
appellant does not dispute that, during the settlement conference, the
administrative judge informed the parties that the settlement agreement would not
be entered into the record for enforcement purposes and that the parties agreed to
such. I-2 AF, Tab 20, Compact Disc (settlement conference recording). Thus,
the agreement is not enforceable by the Board.
¶7 The appellant has reiterated his request to file a petition for review
regarding an alleged breach of the agreement by the agency. PFR File, Tab 1
at 5, 7-8; CF, Tab 7 at 4-6. Because the appellant neither argues that the
administrative judge erred in dismissing the underlying appeal as settled nor
challenges the validity of the settlement agreement, his request is in substance a
petition for enforcement, and thus, it provides no reason to disturb the compliance
initial decision. See Diamond v. U.S. Postal Service, 51 M.S.P.R. 448,
450 (1991) (construing the appellant’s filing as a petition for enforcement when
the appellant alleged that the agency breached the settlement agreement), aff’d,
972 F.2d 1353 (Fed. Cir. 1992) (Table); see also Barker, 100 M.S.P.R. 695, ¶ 4
3
While the petition for review of the compliance initial decision was pending, the
Board held in Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶ 21 (2017),
that the Board has enforcement authority over settlement agreements that have been
entered into the record for that purpose, independent of any prior finding of Board
jurisdiction over the underlying matter appealed. Here, because the settlement
agreement was not entered into the record for enforcement purposes, Delorme has no
bearing on the instant case.
5
(stating that a party may file a petition for review challenging the validity of a
settlement agreement, regardless of whether it has been entered into the record for
enforcement, if the party believes that the agreement is unlawful, involuntary, or
the result of fraud or mutual mistake).
¶8 Accordingly, we find that the administrative judge properly dismissed the
appellant’s petition for enforcement for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
If you are interested in securing pro bono representation for an 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
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you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
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(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.