NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3338

JENEICE HUNTER, Petitioner,

v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent.

Jeneice Hunter , of Hampton, Virginia, pro se. Kenneth S. Kessler , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Mark A. Melnick , Assistant Director. Appealed from: United States Merit Systems Protection BoardNote: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3338 JENEICE HUNTER, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

__________________________ DECIDED: February 12, 2007

__________________________ Before SCHALL, GAJARSA, and PROST, Circuit Judges

. PER CURIAM. DECISION Jeneice Hunter petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that denied her petition for enforcement of a settlement agreement between Ms. Hunter and the Department of Veterans Affairs ("VA"). Hunter v. Dep’t of Veterans Affairs , DC-0752-05-0322-C-2 (MSPB Jun. 13, 2006). We affirm

. DISCUSSION
I. On March 3, 2003, Ms. Hunter filed an appeal with the Boar d challenging the VA’s action separating her from Federal Service. On May 12, 2005, the parties resolved the action through a settlemen t agreement. The settlement agreementprovided, inter alia , that the VA would offer Ms. Hunter another pos ition within the
agency c o ntingent upon the rec e ipt of medica l documentation indicatin g her ability t o perform the duties of the posit ion. Settlement Agreement at 1. If Ms. Hunter could not obtain suc h medical documentation, the parties agreed that she would apply for disab ility retirement. In such case, the VA would not contest her application and would assist her, upon request, with the processing of her application. Settlement Agreement
at 2. On September 14, 2005, Ms. Hunter filed a first petiti on for enforcement of the settlement agreement alleging that she had filed a dis ability retirement application with the Office of Personnel Management (“OP M”) and had not received a response. She also alleged that the VA had not adequately a ssisted her in the processing of the application. The Administrative Judge (“AJ ”) to whom the matter was assigned denied the first petition for enforcement based on a determination that Ms. Hunter failed to establish a breach of the settl ement agreement by the VA. That decision is not before

us. On January 27, 2006, Ms. Hunter filed a s e cond petit ion for enforcement of the settlement agreement. In her second petition, Ms. Hunter alleged that the VA had not provided h e r another positio n within the VA a nd t hat her a pplic ation f o r disab ilit y retirement had been denied. The VA res ponded to the petition for enforcement by asserti ng that, fol l o wi ng executi on of the settl ement agreement, the parti e s had numerous communications regar ding the VA’s job offer; that Ms. Hunter’s physician did not ultimately giv e Ms. Hunter the requi site medical c l earance requir ed by the settlement agreement to appoint her to another position; and that the VA th en assisted

2006-3338 2Ms. Hunter with her disab ility retirement application and s ubmitted it to OPM. Ms. Hunter did not submit a res ponse to the VA’s submission. In an initial decision, the Adminis t rative Judge (“AJ”) held that Ms. Hunter failed to show noncompliance by the VA with the terms of the settlement agreement and dismissed her petition for enforcement. Hunter v. Dep’t of Veterans Affairs , DC-0752- 05-0322-C- 2 (MSPB March 15, 2006) (“Initial Dec i sion ”). The I n itial Dec i s i on , bec ame the final decision of the Board on June 13, 2006 when the Board denied Ms . Hunter’s petition for review for failure to meet the criteria for re view s e t forth at 5 C.F.R. § 1201.115(d). This appeal follows. W e have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the Board is limited. Specifically , we must affirm the Board’s deci sion unless it is found to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evid ence. 5 U.S.C. § 7703(c); Ke wley v. Dep’t of Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998). We see no error in the Board’s decision in this case. The AJ denied Ms. Hunter’s petition for enforcement after finding that Ms. Hunter’s phy s i cian had failed to provide her with medical clearance to return to duty and that the VA had assisted Ms. Hunter with her disability retirement application. Initial Decis i on at 3. On appeal, Ms. Hunter does not contest these findings. Rather, s he argues that she has done nothing wrong.

2006-3338 3The AJ properly deter mined t hat the VA’s ac tions fully c o mplied with the terms of the settlement agreement. The settlem ent agreement imposed two alternative obligations on the VA. The VA was obligated to offer Ms. H unter another position within the agency contingent upon the receipt of m edical doc umentat ion indicating her ability to perform the duties of the position. In the alternative, if Ms . Hunter was unable t o receive medical doc umentation indicating her ability to perform the duties of the position, the VA was obl igated t o assist M s . Hunter with her disability application, a n obligation t hat the AJ found was met. Bec ause Ms. Hunter did not receive medical clearance f r om her physicia n , the VA wa s obl igated to assist her with h e r disab ilit y application. Nothing in t he settlement agreement guaranteed that OPM would grant Ms. Hunter disability retirement. OP M is a se parate federal entity over which the VA has no control. It is OPM, not the VA, who makes disab ility re tirement decisions. B e cause the VA did ass i st Ms. Hunter with her disability application, the AJ properly held that Ms. Hunter failed to show noncompliance by the VA with the settlem ent agreement. For the foregoing reasons, the final dec ision of the Board d i smissing Ms. Hunter’s petition for en forcement i s affirmed.

2006-3338 4