UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

WILLIAM E. SMITH,

Appellant,

v.
DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC

- 1221

- 16

- 0589

- W

- 1

DATE: July 17, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Elaine L. Fitch , Esquire, Washi ngton, D.C., for the appellant. Daniel Piccaluga
, Esquire, Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as settled. For the reasons discussed below, we GRANT the appellant’s petition for review and AFFIRM the initial decision AS MODIFIED. Except as expressly MODIFIED by this Final

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no pre cedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

Order to enter the settlement ag reement into the record for enforcement, we AFFIRM the initial decision.

DISCUSSION OF ARGUME NTS ON REVIEW ¶2 On May 17, 2016, the appellant filed an IRA appeal. Initial Appeal File (IAF), Tab 1. Prior to any finding regarding the Board’s jurisdiction ove r the appeal, the parties agreed to settle the appeal. IAF, Tab 8. Consequently, on November 30, 2016, the administrative judge issued an initial decision, dismissing the appeal as settled. IAF, Tab 9, Initial Decision (ID). The administrative judge, h owever, determined that she was unable to enter the settlement agreement into the record for enforcement purposes because of the outstanding jurisdictional issue. 2 ID at 2. ¶3 The appellant has filed a timely petition for review in which he contends
that t he administrative judge erred in failing to enter the settlement agreement into the record. Petition for Review File, Tab 1. Attached to his petition, the appellant includes a January 4, 2017 stipulation from agency counsel, in which the agency stipulate s that the appellant has established Board jurisdiction over the underlying appeal. Id. at 7. ¶4 After the initial decision in this case was issued, on January 4, 2017, the same day that the appellant filed his petition for review, the Board issued
Delorme v. Department of the Interior
, 124 M.S.P.R. 123 (2017), in which it held that the Board retains enforcement authority over settle ment agreements that have been entered into its record for that purpose, independent of any prior finding of Board jurisdiction over the underlying matter appealed. Delorme overruled the Board’s prior decision in Shaw v. Department of the Navy
, 39 M.S.P.R. 586 , 590

- 91 (1989), which held that an appellant must prove jurisdiction over the

2 Although the administrative judge indicated that the agreement would not be entered into the record for enforcement purposes, th e initial decision erroneously notified the appellant of his right to seek enforcement of the settlement agreement by filing a petition for enforcement. ID at 3.3

underlying matter appealed before the Board can accept a lawful settlement agreement into the record for enforcement. Delor me , 124 M.S.P.R. 123 , ¶¶ 12

- 13. Thus, under Delorme , an ad ministrative judge may accept a settlement agreement into the record for enforcement independent of any prior finding of Board jurisdiction. Id. , ¶¶ 19

- 21. ¶5 In light of Delorme and the parties’ intent to have the Board exercise enforcement authority over t he settlement agreement , IAF, Tab 8 at 4, we modify the initial decision to enter the settlement agreement into the record for
enforcement.

NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the ter ms 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 pet itioning 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 OF APPEAL RIG HTS 3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . 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 su ch 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 Systems Protection Board does not

3 Since the issuance of the initial decision in this matter, the Board may have updated the n otice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4

provid e 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 decisi on, 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 mo re 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
wi thin 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 subm it 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 c ourt’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 at5

http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal C ircuit. 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 onl y 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 yo ur 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 discr imination 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.uscou rts.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 h ave a representative in this case,6

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 E EOC 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 re quiring 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 o f 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
23 02(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 jurisdic tion. 4 The court of appeals must receive your petition for

4 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 wh istleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.7

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 revie w 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 th e 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 representati on 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. 1510.8

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:

Washin gton, D.C. /s/ for Jennifer Everling Acting Clerk of the Board