Douglas C. Jones v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS C. JONES, DOCKET NUMBER
Appellant, DC-0752-12-0562-X-1
v.
DEPARTMENT OF THE NAVY, DATE: January 16, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.
James M. Metcalfe, and Omari O. Jackson, Esquire, Portsmouth, Virginia,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued a May 16, 2014 initial decision granting the
appellant’s petition for enforcement with respect to the Board’s February 24,
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
2014 final order in the underlying appeal and finding the agency in
noncompliance with certain terms in the final order. MSPB Docket No.
DC-0752-12-0562-C-1, Compliance Appeal File, Tab 6, Initial Decision; Jones v.
Department of the Navy, 120 M.S.P.R. 607 (2014). For the reasons set forth
below, we DISMISS the petition for enforcement as settled.
¶2 After issuance of the initial decision finding noncompliance, the parties
submitted a document entitled “SETTLEMENT AGREEMENT AND RELEASE
OF ALL CLAIMS” signed and dated by the appellant on November 21, 2014,
and by the agency on December 1, 2014. MSPB Docket No. DC-0752-12-0562-
X-1, Compliance Referral File (CRF), Tab 7. The document provides, among
other things, for the withdrawal of the underlying petition for enforcement. Id.¶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, in fact, have entered into a settlement agreement, that they
understand the terms, and that they want the Board to enforce those terms. See
CRF, Tab 7 at 2.
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 enforcement of the terms in a fully
executed settlement agreement entered into the record for purposes of dismissing
the underlying petition for enforcement—is within the Board’s jurisdiction under
5 C.F.R. § 1201.41(c)(2)(i). Accordingly, we find that dismissal of the petition
3
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
settlement agreement into the record for enforcement purposes.
¶4 This is the final order of the Merit Systems Protection Board in this petition
for enforcement. 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
4
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 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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.