Erica N. Lewis v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERICA N. LEWIS, DOCKET NUMBER
Appellant, PH-0752-12-0264-X-1
v.
DEPARTMENT OF VETERANS DATE: December 19, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Michael W. Macomber, Esquire, Albany, New York, for the appellant.
Rodger Withrow, Martinsburg, West Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On November 29, 2013, the administrative judge issued a compliance initial
decision finding that the agency was not in compliance with the Board’s March 4,
2013 Final Order, which required that the agency cancel the appellant’s removal
and restore her to the status quo ante. MSPB Docket No. PH-0752-12-0264-C-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Compliance File, Tab 7, Compliance Initial Decision. Subsequently, this matter
was referred to the Board’s Office of General Counsel for compliance purposes
and referred to the Board for a final decision. Compliance Referral File (CRF),
Tab 1. For the reasons set forth below, we VACATE the compliance initial
decision and DISMISS the appeal as settled.
¶2 The appellant’s attorney submitted a document entitled “SETTLEMENT
AGREEMENT,” signed and dated by the appellant, her counsel, the agency, a nd
the agency’s counsel. CRF, Tab 32. The document provides for the payment of
$12,500 by the agency to the appellant in lieu of compensatory damages, and the
payment of $12,500 by the agency to the appellant’s counsel for attorney’s fees.
Id. at 7.
¶3 As part of the terms of the agreement, the appellant withdraws her
complaints and appeals, including, but not limited to, EEOC Case No. 530-2013-
00167X and MSPB Docket No. PH-0752-12-0264-X-1. Id. at 8.
¶4 Before dismissing a matter as settled, the Board mu st 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. CRF, Tab 32,
at 4.
¶5 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 the appeal—the enforcement of a settlement agreement that
3
has been entered into the record—is within the Board’s jurisdiction under
5 U.S.C. §§ 7511-7513 and 7701, 5 C.F.R. § 1201.183(a)(1). CRF, Tab 32.
¶6 Accordingly, we find that dismissal of the petition for enforcement “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept the se ttlement agreement
into the record for enforcement purposes.
¶7 This is the final order of the Merit Systems Protection Board in this
enforcement appeal. Title 5 of the Code of Federal Regulations,
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 U.S.
Court of Appeals for the Federal Circuit. You must submit your reques t 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.
4
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
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 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 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
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.