Christine M. Halfacre v. Department of Homeland Security ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE M. HALFACRE, DOCKET NUMBER
Appellant, DC-0752-12-0626-R-1
v.
DEPARTMENT OF HOMELAND DATE: September 5, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Adria S. Zeldin, Esquire, and Joseph V. Kaplan, Esquire, Washington,
D.C., for the appellant.
Jennifer Kessler, Joseph Rieu, and Michael W. Gaches, Esquire, Arlington,
Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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FINAL ORDER
¶1 The Board issued a final decision in this appeal on June 13, 2014.
Halfacre v. Department of Homeland Security, MSPB Docket No. DC-0752-12-
0626-I-1 (I-1), Final Order (June 13, 2014). Thereafter, the parties filed a
settlement agreement executed on July 7, 2014, and a request to reopen the
appeal, vacate the Board’s June 13, 2014 final decision, and dismiss the
underlying appeal. MSPB Docket No. DC-0752-12-0626-R-1, Reopening Appeal
File (RAF), Tab 1. For the reasons set forth below, we REOPEN the appeal
under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118, see Smith v. Social
Security Administration, 102 M.S.P.R. 167 (2006), VACATE the Board’s final
decision, and DISMISS the underlying appeal as settled.
¶2 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
RAF, Tab 1 at 6.
¶3 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 removal of a full-time nonprobationary
employee in the federal service—is within the Board’s jurisdiction
under 5 U.S.C. §§ 7511-13, 7701. I-1, Initial Appeal File, Tab 8(4.b).
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Accordingly, we find that dismissal of the underlying 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.
¶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 the United States Court of Appeals for the
Federal Circuit to review this final decision. 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 your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with the court
no later than 60 calendar days after receipt by your representative. If you choose
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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 United States Code, section 7703 (5 U.S.C. § 7703). You may read
this law, as well as review the Board’s regulations and other related material, at
our website, http://www.mspb.gov. 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.