John Doe v. Department of Justice

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER
Appellant, CH-0752-14-0332-R-1
v.
DEPARTMENT OF JUSTICE, DATE: September 23, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
J. Michael Hannon, Esquire, Washington, D.C., for the appellant.
Jay Macklin, Esquire and Kimya Jones, Esquire, Washington, D.C., for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This matter is before the Board on the parties’ joint request to reopen a final
Board decision for the purpose of entering a settlement agreement into the record
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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for enforcement. Reopening Appeal File (RAF), Tabs 1-2. For the reasons set
forth below, we REOPEN the appeal pursuant to 5 C.F.R. § 1201.118, and
GRANT the joint reopening request for the limited purpose of accepting the
parties’ settlement agreement into the record for enforcement.
¶2 In an Opinion and Order, the Board issued a final decision that affirmed the
initial decision reversing the appellant’s removal. See Doe v. Department of
Justice, 123 M.S.P.R. 90 (2015). Thereafter, the parties reached a settlement
agreement and filed a joint motion to reopen the appeal for the express purpose
of entering the settlement agreement into the record for purposes of enforcement.
RAF, Tabs 1-2.
¶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 RAF, Tabs 1-2.
¶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 removal of a full-time nonprobationary
Federal employee in the excepted service—is within the Board’s jurisdiction
under 5 U.S.C. §§ 7511-7513. See 5 U.S.C. § 7511(a)(C)(i); Doe v. Department
of Justice, 118 M.S.P.R. 434 (2012); Petition for Review File, Tab 6 at 1.
Accordingly, we find it appropriate under these circumstances to reopen this
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appeal and grant the parties’ joint request for the limited purposes of entering the
settlement agreement into the record for purposes of future enforcement.
¶5 This is the final decision 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 further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
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Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 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 EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 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 district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.