UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEA HAMILTON,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DA-0752-19-0350-X-1

DATE: May 12, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lea Hamilton, San Antonio, Texas, pro se.

Chad E. Christenson, Esquire, Lackland Air Force Base, Texas, for the 

agency.

Charles R. Vaith, Esquire, and Major Kyle Little, Randolph Air Force 

Base, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

FINAL ORDER

¶1 In a March 31, 2020 compliance initial decision, the administrative judge 

found the agency in noncompliance with a September 25, 2019 settlement 

agreement that had been entered into the record for purposes of enforcement by 

the Board. Hamilton v. Department of the Air Force, MSPB Docket No. DA0752-19-0350-C-1, Compliance File (CF), Tab 12, Compliance Initial Decision 

(CID); Hamilton v. Department of the Air Force, MSPB Docket No. DA-0752-19-

0350-I-1, Initial Appeal File (IAF), Tab 26, Tab 27, Initial Decision (ID). 

Accordingly, the administrative judge granted the appellant’s petition for 

enforcement and ordered the agency to comply with its obligations under the 

terms of the settlement agreement. CID at 5. For the reasons discussed below, 

we now find the agency in compliance and DISMISS the appellant’s petition for 

enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On September 25, 2019, the parties entered into a settlement agreement 

resolving the appellant’s removal appeal. IAF, Tab 26. The agreement provided, 

among other things, that the agency would pay the appellant $15,000 by 

electronic funds transfer. Id. at 1. On January 23, 2020, the appellant filed a 

petition for enforcement alleging that she had still not received the $15,000. CF, 

Tab 1. In the compliance initial decision, the administrative judge found that the

agency’s delay in paying the appellant was unreasonable and constituted a 

material breach of the settlement agreement. CID at 3-4. Accordingly, she 

granted the appellant’s petition for enforcement and ordered the agency to pay the 

appellant $15,000 by electronic funds transfer within 20 days. CID at 5. 

¶3 The compliance initial decision informed the agency that, if it decided to 

take the actions required by the decision, it must submit to the Clerk of the Board, 

within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), 

a statement that it has taken the actions identified in the compliance initial 
3

decision, along with evidence establishing that it has taken those actions. CID 

at 5-6; 5 C.F.R. § 1201.183(a)(6)(i). The compliance initial decision also 

informed the parties that they could file a petition for review if they disagreed 

with the compliance initial decision. CID at 6-7; see 5 C.F.R. §§ 1201.114(e), 

1201.183(a)(6)(ii). 

¶4 On May 5, 2020, the agency informed the Board that it had complied with 

the compliance initial decision and submitted evidence reflecting that the Defense 

Finance and Accounting Service (DFAS) paid the appellant $15,000 on April 8, 

2020. Hamilton v. Department of the Air Force, MSPB Docket No. DA-0752-19-

0350-X-1, Compliance Referral File (CRF), Tab 1. In a May 6, 2020 

acknowledgment order, the Clerk of the Board notified the appellant that she 

could respond to the agency’s submission within 20 days and that, if she did not 

respond, the Board may assume she was satisfied and dismiss her petition for 

enforcement. CRF, Tab 2. The appellant did not respond.

¶5 A settlement agreement is a contract and, as such, will be enforced in 

accordance with contract law. Burke v. Department of Veterans Affairs, 

121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement 

that has been entered into the record in the same manner as a final Board decision 

or order. Id. When the appellant alleges noncompliance with a settlement 

agreement, the agency must produce relevant material evidence of its compliance 

with the agreement or show that there was good cause for noncompliance. Id. 

The ultimate burden, however, remains with the appellant to prove breach by a 

preponderance of the evidence. Id.

¶6 As described above, in the compliance initial decision, the administrative 

judge found that the agency failed to establish that it had complied with its 

obligation to pay the appellant $15,000. CID at 3. The agency’s submissions 

show that it has now reached full compliance with this obligation. In particular, 

as set forth above, the agency provided evidence reflecting that DFAS paid the 

appellant $15,000 on April 8, 2020. CRF, Tab 1. As the appellant has not 
4

responded to the agency’s assertions and evidence of compliance, the Board 

assumes that she is satisfied. See Baumgartner v. Department of Housing and

Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009). 

¶7 In light of the foregoing, we find that the agency is now 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 RIGHTS3

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 

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. 

 

3

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

(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 

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 
6

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 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, 

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: 
7

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.4 The court of appeals must receive your 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 

 

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 judic ial 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. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510.
8

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. 

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board