UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

LISA Y. WEBSTER,

Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER S PH

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DATE: September 20, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lisa Y. Webster , Kenova, West Virginia, pro se. Shelly S. Glenn , Baltimore, Maryland, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member

FINAL ORDER ¶1 After issuance of the February 2 and February 18, 2022 initial decision s in
th ese appeal s , the parties notified the Board that they had settled the appeal s

. Initial Appeal File (IAF), Tab 15 , Initial Decision ; Petition for Review (PFR)

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future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

File, Tab 2. 2 We now JOIN these appeals for processing 3 and, f or the reasons set forth below, we DISMISS the appeal s as settled. ¶2 The settlement agreement was signed and dated by the appellant on
March 31, 2022, and by the agency on April 1, 2022. PFR File, Tab 2. In pertinent part, it provides that in exchange for certain promises by the agency, the appellant agree s to withdraw with prejudice her pending appeal in Webster v. Department of Veterans Affairs , MSPB Docket No. PH

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- 1, and to
withdraw w ith prejudice the instant appeal s pending on petition for review

. Id. at 8

- 9. The settlement agreement further provides that the parties agreed that the initial decisions in the instant appeal s would be vacated

. Id. at 9. ¶3 On May 5, 2022, the agency file d a motion requesting that the Board, nunc pro tunc , docket its March 1, 2022 Motion for Expedited Settlement Conference

— which had been returned undocketed pursuant to the Clerk’s Office’s understanding that the agency did not intend it as a petition for review
, see PFR File, Tab 1

— as a request for an extension of time to file a petition for review;
vacate the initial decisions in th e instant appeals ; and di rect that the settlement agreement be accepted in th e instant appeals and in MSPB Docket No. PH

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- 1 , which the administrative judge had dismissed without prejudice pending the outcome of the instant appeals . PFR File, Tab 4 at 11. ¶4 Before dism issing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Maho ney v. U.S. Postal Service
, 37 M.S.P.R.

2 As the initial decision s had already been issued and become final by the time the parties notified the Board of their settlement agreement, the submission s w ere considered and docketed as petition s for review of the initial decision s . PFR File, Tab 3.

3 Citations herein will be to the lead case, MSPB Docket No. PH

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- 1. The record in both petitions for review is identical, however.3

146 , 149 (1988). In addition, before accepting a settlement agreement into the
record for enforc ement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Massey v. Office of Personnel Management
, 91 M.S.P.R. 289 , ¶ 4 (2002), 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, independent of any prior finding of Board jurisdiction over the underlying matter being settled). ¶5 Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 2 at 10. In addition, we find that the agreement is lawf ul on its face and that the parties freely entered into it. Id

. Accordingly, pursuant to the terms of the settlement agreement, we vacate the February 2 and February 18, 2022 initial decisions, dismiss the appeals as settled, and accept the settlement ag reement into the record of both cases for enforcement by the Board. 4 ¶6 We deny as moot the agency’s nunc pro tunc motion, as we are granting the agency’s requested relief in the instant appeals on the basis of the settlement agreement. Regarding the effect of the settlement agreement on MSPB Docket
No. PH

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- 1, which was dismissed without prejudice, the parties
should follow the instructions provided in the initial decision to refile the appeal and petition the administrative judge fo r acceptance of the settlement agreement. ¶7 This is the final decision of the Merit Systems Protection Board in these appeals . Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).

4 Although the parties request that the initial decisions be “rescinded an d removed from the case file and on the MSPB’s e

- A ppeal website,” PFR File, Tab 2 at 9, our regulations do not provide for such relief. The initial decisions are vacated by way of this O rder and have no legal effect, but they cannot be removed from the re cord.4

NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petitio n for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should inclu de the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a).

NOTICE OF APPEAL RIG HTS 5 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 represe nt 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 f orum for more information.

5 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 avai lable 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 secu ring 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 appl ies 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 dis position 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 you6

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). I f 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 t o 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 met hod 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

sec tion 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 j urisdiction. 6 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

6 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, 201 8, 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. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.8

Additional information abo ut 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 represe ntation 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 cou rts 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