Nancy Geehan v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY O. GEEHAN, DOCKET NUMBERS
Appellant, PH-0752-15-0239-C-1
PH-1221-16-0014-C-1
v.
DEPARTMENT OF AGRICULTURE,
Agency. DATE: March 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant.
Arlene R. Yang, Esquire, and Suzanne K. Roten, Esquire, San Diego,
California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision in these joined appeals, which dismissed her petition for enforcement for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
lack of jurisdiction. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in these appeals, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 In these joined appeals, the parties reached a settlement agreement pursuant
to which the appellant agreed, among other things, to dismiss al of both appeals
with prejudice. Geehan v. Department of Agriculture, MSPB Docket No.
PH-1221-16-0014-W-1, Initial Appeal File (0014 IAF), Tab 24 at 7. The parties
did not request that the Board enter the agreement into the record for
enforcement. 0014 IAF, Tab 24 at 9. They instead provided that, “Compliance
issues shall be governed by the applicable [Equal Employment Opportunity
Commission (EEOC)] regulations,” citing 29 C.F.R. § 1614.504. Id.¶3 The administrative judge issued an initial decision, dismissing the appeals
as withdrawn. 0014 IAF, Tab 25, Initial Decision (ID). He observed that,
consistent with the agreement, any compliance issues would be raised pursuant to
the equal employment opportunity (EEO) process. ID at 2 n.*. The
administrative judge further stated that because he did not make a finding on
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Board jurisdiction, the agreement was not enforceable by the Board. Id. This
statement was accurate at the time the initial decision was issued. See Delorme v.
Department of Interior, 124 M.S.P.R. 123, ¶ 12 (2017) (explaining that the Board
previously would not enter a settlement agreement into the record for
enforcement purposes unless, as relevant here, the subject matter of the appeal
was within the Board’s jurisdiction).
¶4 The Board denied the appellant’s subsequent petition fo r review, in which
she requested that the Board dismiss the appeal as settled instead of as
withdrawn. Geehan v. Department of Agriculture, MSPB Docket No. PH-1221-
16-0014-W-1, Final Order (Dec. 19, 2016) (Final Order). In light of the parties’
decision to invoke EEOC regulations for the enforcement of their settlement
agreement, rather than have it entered into the record of the appellant’s Board
appeal for enforcement purposes, the Board found that the language used by the
administrative judge to describe the nature of the dismissal amounted to a
distinction without a difference. Id.¶5 Following the Board’s Final Order, the Board issued a decision revisiting
its prior law regarding its enforcement authority. Delorme, 124 M.S.P.R. 123,
¶¶ 9-21. The Board found its enforcement authority was not dependent on a prior
finding of Board jurisdiction over the underlying matter appealed. Id., ¶¶ 13-21.
¶6 The appellant subsequently filed this petition for enforcement in which she
argued that the agency had breached the parties’ settlement agreement. Geehan v.
Department of Agriculture, MSPB Docket No. PH-0752-15-0239-C-1,
Compliance File (CF), Tab 1. Because the parties had not requested that the
Board enter their settlement agreement into the record for the purpose of
enforcement, the administrative judge ordered the appellant to show cause why
the petition for enforcement should not be dismissed for lack of jurisdiction. CF,
Tab 2. In response, the appellant argued that because the agreement was part of
the record, language specifying the Board’s enforcement authority was
unnecessary. CF, Tab 3 at 4-5, 7. She also argued that she reasonably assumed
4
that the Board would have enforcement authority because the agreement arose out
of the Board’s Mediation Appeals Program (MAP). Id. at 5-6. The agency
responded in opposition. CF, Tab 5.
¶7 The administrative judge issued a compliance initial decision, dismissing
the appellant’s petition for enforcement for lack of jurisdiction. CF, Tab 6,
Compliance Initial Decision (CID). He found that the parties had unambiguously
agreed to enforcement pursuant to EEO procedures and did not seek to place the
agreement into the Board’s record for enforcement purposes. CID at 4-5;
5 C.F.R. § 1201.182(a). He further determined that the Board’s decision in
Delorme did not change the outcome because, regardless of the Board’s
jurisdiction over enforcement matters generally, the parties had not agreed to
Board enforcement. CID at 3 n.2.
¶8 In her petition for review of the compliance initial decision, the appellant
again reiterates her arguments below. Geehan v. Department of Agriculture,
MSPB Docket No. PH-0752-15-0239-C-1, Compliance Petition for Review
(CPFR) File, Tab 1. The agency has responded to the petition for review, and the
appellant has replied. CPFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The Board will incorporate a settlement agreement into the record and
enforce its terms if the parties intended that the agreemen t be enforced by the
Board and the agreement is lawful on its face and was freely reached and
understood by the parties. Delorme, 124 M.S.P.R. 123, ¶¶ 10, 12-13, 21; Bays v.
Department of the Army, 54 M.S.P.R. 469, 470-71 (1992); 5 C.F.R.
§ 1201.182(a). As discussed above, at the time the parties entered into their
settlement agreement, the Board also required a finding of Board jurisdiction over
the subject matter of the appeal. Delorme, 124 M.S.P.R. 123, ¶ 12. That
requirement was later eliminated in the Delorme decision. Id., ¶¶ 13-21.
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¶10 The administrative judge found that the parties did not intend that the
agreement be enforced by the Board. CID at 5. We agree. The settlement
agreement references 29 C.F.R. § 1614.504, which provides that an employee
may seek enforcement of a settlement agreement reached during the EEO process
by first contacting the agency’s EEO director and, if dissatisfied, seeking review
by the EEOC. 0014 IAF, Tab 24 at 9. It identifies the individual at the agency
the appellant could contact if she “believe[d] that the Agency has not complied”
with the agreement. Id. As the administrative judge found, this provision
unambiguously reflected the intent of the parties to seek enforcement in another
forum. See Smith v. Department of the Interior, 113 M.S.P.R. 592, ¶ 8 (2010)
(observing that the plain and unambiguous terms of a settlement agreement
control its interpretation); Grubb v. Department of the Interior, 76 M.S.P.R. 639,
642-43 (1997) (finding that an administrative judge erred by entering an
agreement into the record for enforcement purposes when the agreement provided
for enforcement pursuant to 29 C.F.R. § 1614.504). The appellant suggests that
the agreement’s enforcement provision is not inconsistent with enforcement
before the Board. CPFR File, Tab 1 at 8. We are not persuaded. 3
¶11 The appellant argues that she and her nonattorney representative reasonably
believed that the agreement would be enforceable by the Board because it arose
out of the Board’s MAP process and the MAP mediator did not alert the appellant
to the enforcement issue. CPFR File, Tab 1 at 6; CF, Tab 3 at 5-6. We decline to
find that the MAP mediator had an affirmative duty to inform the appellant that
the Board would lack enforcement over the agreement. Nonetheless, to the extent
3
The appellant has indicated that she is already pursuing enforcement before the
EEOC’s Office of Federal Operations (OFO). CPFR File, Tab 1 at 8. She argues that
OFO lacks sufficient enforcement authority because it cannot order the Board to
enforce the agreement. Id.; CF, Tab 3 at 8. We agree with the administrative judge that
we cannot interpret the agreement as permitting Board enforcement on this basis. CID
at 5; see Flores v. U.S. Postal Service, 115 M.S.P.R. 189, ¶ 10 (2010) (explaining that
the Board has no authority to unilaterally modify the terms of the parties’ settlement
agreement).
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that the appellant is arguing that she intended for the Board to have enforcement
authority, we cannot consider this parol evidence of her intent because the
agreement is unambiguous. Flores v. U.S. Postal Service, 115 M.S.P.R. 189, ¶ 10
(2010); see Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981)
(explaining that the appellant is responsible for the errors of his chosen
representative). In any event, as the appellant acknowledges, in dismissing the
underlying appeal, the administrative judge clearly stated in the initial decision
that the settlement agreement was not enforceable by the Board. ID at 2 n.* ;
CPFR File, Tab 1 at 6-7.
¶12 The appellant also asserts that the administrative judge incorrectly stated
that the reason the Board could not enforce the agreement was because he had not
made a finding of Board jurisdiction. CPFR File, Tab 1 at 6-7; ID at 2 n*. As
discussed above, this statement was accurate at the time that it was made. The
subsequent elimination of the jurisdictional requirement for Board enforcement is
not a basis for setting aside the agreement. Delorme, 124 M.S.P.R. 123, ¶¶ 13,
21. That change did not eliminate the requirement that the parties intended that
the Board have enforcement authority, something that is lacking here . Id.; Bays,
54 M.S.P.R. at 470-71; 5 CFR § 1201.182(a).
¶13 Accordingly, we affirm the compliance initial decision that dismissed the
appellant’s petition for enforcement for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any ma tter.
7
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
8
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
9
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.