David Skinner v. Department of Homeland Security ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID SKINNER, DOCKET NUMBER
Appellant, CH-0752-15-0035-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 22, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Alex L. Kutrolli and Joseph Rieu, Esquire, Arlington, Virginia, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed an untimely petition for review of the February 19,
2015 initial decision in this appeal. Initial Appeal File (IAF), Tab 21, Initial
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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Decision; Petition for Review (PFR) File, Tab 1. For the reasons set forth
below, we VACATE the initial decision, and DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT & RELEASE” signed and dated by the
appellant on May 29, 2015, and by the agency on June 2, 2015. PFR File, Tab 1.
The document provides, among other things, for the withdrawal of the appeal.
Id., ¶ 1.
¶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 agreement, that they
understand the terms, and that they want the Board to enforce those terms. See
PFR File, Tab 1, ¶ 4.
In addition, before accepting a settlement agreement into the record for
enforcement purposes, the Board must determine whether the agreement is lawful
on its face, whether the parties freely entered into it, and whether the subject
matter of this appeal is within the Board’s jurisdiction, that is, whether a law,
rule, or regulation grants the Board the authority to decide such a matter. See
Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107 (1997). We find here that
the agreement is lawful on its face, that the parties freely entered into it, and that
the subject matter of this appeal—the indefinite suspension of a full time Federal
employee in the excepted service—is within the Board’s jurisdiction under
5 U.S.C. §§ 7511-7513. IAF, Tab 10, Subtab 4a. 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 and
we accept the settlement agreement into the record for enforcement purposes.
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¶4 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 PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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
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Title 5 of the United States 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 United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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.
If you are interested in securing pro bono representation for your appeal to
the 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.