Connie Johnson v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONNIE L. JOHNSON, DOCKET NUMBER
Appellant, PH-0752-18-0134-X-1
v.
DEPARTMENT OF DEFENSE, DATE: May 24, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Connie L. Johnson, Wausau, Wisconsin, pro se.
Daniel S. Lacy, North Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s final decision in the underlying appeal, in which the
administrative judge accepted the parties’ settlement agreement into the record
for enforcement purposes. Johnson v. Department of Defense, MSPB Docket
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
No. PH-0752-18-0134-C-1, Compliance File (CF), Tab 1; Johnson v. Department
of Defense, MSPB Docket No. PH-0752-18-0134-I-1, Initial Appeal File (IAF),
Tab 14, Initial Decision (ID). On February 28, 2019, the administrative judge
issued a compliance initial decision finding the agency not in compliance with the
settlement agreement. CF, Tab 8, Compliance Initial Decision (CID). For the
reasons discussed below, we find the agency in compliance and dismiss the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On January 11, 2018, the appellant appealed the agency’s decision to
remove her from the position of Medical Technician. IAF, Tab 1. During the
pendency of the appeal, the parties entered into a settlement a greement that
provided for, among other things, expungement of the appellant’s removal
documentation from her official personnel file (OPF) and replacement of that
documentation with a new Standard Form (SF) 50 indicating that she voluntarily
resigned from employment for personal reasons. IAF, Tab 13. On July 11, 2018,
the administrative judge issued an initial decision dismissing the appeal as settled
and accepting the settlement agreement into the record for enforcement purposes.
ID at 2. The initial decision became the final decision of the Board on August 15,
2018, after neither party petitioned for administrative review. ID at 3.
¶3 On January 28, 2019, the appellant filed a petition for enforcement of the
settlement agreement, alleging that the agency failed to expunge the removal
documentation from her OPF and replace the documentation with the new SF -50
indicating her voluntary resignation. CF, Tab 1 at 1. In response, the agency
stated that it was unable to expunge the old removal documentation and replace it
with the resignation SF-50 due to Executive Order (EO) 13839, section 5, which
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the agency claimed prohibited it from changing the appellant’s OPF to resolve an
administrative challenge to an adverse personnel action. 2 CF, Tab 5 at 4-5.
¶4 In a February 28, 2019 compliance initial decision, the administrative judge
found the agency not in compliance due to its failure to expunge the removal
documentation and replace it with the resignation SF-50. CID at 5-6. In so
finding, the administrative judge held that the settlement agreement did not
violate the EO because, although it was not signed by all parties until after the
May 25, 2018 issuance date of the EO, it was preceded by a binding May 11,
2018 oral agreement to the same terms. 3 CID at 5-6.
ANALYSIS
¶5 The Board has authority to enforce a settlement agreement that has been
entered into the record for enforcement purposes in the same manner as any final
Board decision or order. Vance v. Department of the Interior, 114 M.S.P.R. 679,
¶ 6 (2010). A settlement agreement is a contract, and the Board will therefore
adjudicate a petition to enforce a settlement agreement in accordance with
contract law. Allen v. Department of Veterans Affairs, 112 M.S.P.R. 659, ¶ 7
2
In its submission, the agency referenced EO 13837. Johnson v. Department of
Defense, MSPB Docket No. PH-0752-18-0134-X-1, Compliance Referral File, Tab 5
at 4. However, the language quoted by the agency is in EO 13839.
3
Although neither party has challenged the administrative judge’s finding, we address
it because the administrative judge properly accepted the settlement agreement into the
record for enforcement only if it was lawful. See Massey v. Office of Personnel
Management, 91 M.S.P.R. 289, ¶ 4 (2002) (before accepting a settlement agreement into
the record for enforcement, the Board must determine, among other things, whether the
agreement is lawful on its face), overruled on other grounds by Delorme v. Department
of the Interior, 124 M.S.P.R. 123, ¶¶ 11-21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, indepe ndent of any prior
finding of Board jurisdiction over the underlying matter being settled). We agree with
the administrative judge’s reasoning and conclusion regarding the lawfulness of t he
settlement agreement and find that the settlement agreement was properly entered into
the record for enforcement. We additionally note that EO 13839 was revoked on
January 22, 2021, via EO 14003, and that the Office of Personnel Management repealed
its regulations implementing EO 13839 on December 12, 2022 .
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(2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). When, as here, an appellant
alleges noncompliance with a settlement agreement, the agency must produce
relevant, material, and credible evidence of its compliance with the agreement.
Vance, 114 M.S.P.R. 679, ¶ 6.
¶6 On March 25, 2019, the agency submitted a statement of compliance
pursuant to 5 C.F.R. § 1201.183(a)(6)(i). Johnson v. Department of Defense,
MSPB Docket No. PH-0752-18-0134-X-1, Compliance Referral File (CRF),
Tab 1. The agency stated that it had expunged all documentation related to the
appellant’s removal from her OPF and replaced it with the resignation SF-50, and
included the new SF-50 as evidence of compliance. Id. at 1-2. The appellant did
not file any response to the agency’s submission, despite having been notified of
her opportunity to do so and cautioned that, if she did not respond, the Board
might assume she was satisfied and dismiss her petition for enforcement. CRF,
Tab 2. Accordingly, we assume that she is satisfied with the agency’s
compliance. See Baumgartner v. Department of Housing and Urban
Development, 111 M.S.P.R. 86, ¶ 9 (2009).
¶7 In light of the agency’s evidence of compliance and the lack of a response
from the appellant, we find the agency in compliance and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
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 matter.
5
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 t ime
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
6
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. 420 (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 securi ty. 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,
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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
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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petition for 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 w ebsite 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.