UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CHRISTINE M. HALFACR E, Appellant,

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

- 0752

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- 0626

- R

- 1

DATE: September 5, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Adria S. Zeldin
, Esquire, and Joseph V. Kaplan , Esquire, Washington, D.C., for the appellant.

Jennifer Kessler
, Joseph Rieu
, and Michael W. Gaches , Esquire
, Arlington, Virginia, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; t he Board and administrative judges are not required to follow or distinguish them in any future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 ca se law. See 5 C.F.R. § 1201.117 (c).2

FINAL ORDER
¶1 The Board issued a final decision in this appeal on June 13, 2014. Halfacre v. Department of Homeland Security , MSPB Docket No. DC

- 0752

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- 0626

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- 1 (I

- 1), Final Order (June 13, 2014) . Thereafter, t he parties filed a
settleme nt agreement executed on July 7, 2014, and a request to reopen the appeal, vacate the Board’s June 13, 2014 final decision, and dismiss the underlying appeal

. MSPB Docket No. DC

- 0752

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- 1, Reopening Appeal File (R A F), Tab 1. For the reasons set fo rth below, we REOPEN the appeal
under 5 U.S.C. § 7701 (e) (1)(B) and 5 C.F.R . § 1201.118 , see Smith v. Social Security Administration
, 102 M.S.P.R. 167 (2006), VACATE the Board’s final decision, and DISMISS the underlying appeal as settled. ¶2 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, understand its terms, and intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Pos tal Service
, 37 M.S.P.R. 146 , 149 (1988). We find here that the parties , in fact, have entered into a settlement agreement, that they understand the terms, and that they wan t the Board to enforce those terms. See
R A F, Tab 1 at 6

. ¶3 In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face, whether the parties freely enter ed into it, and whether the subject matter of this appeal is within the Board’s jurisdiction, that is, whether a law, rule, or regulation grants the Board the authority to decide such a matter. See
Stewart v. U.S. Postal Service
, 73 M.S.P.R. 104 , 107 (1997). We find here that the agreement is lawful on its face, that the parties freely entered into it, and that the subject matter of this appeal

— the removal of a full

- time non probationary employee in the federal service

— is within the Board’s jurisdiction
under 5 U.S.C. §§ 7511

- 13, 7701. I

- 1, Initial Appeal File, Tab 8(4

. b).3

Accordingly, we find that dismissal of the underlying appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances, and we accept the settlement agreement into the record for enforcement purposes. ¶4 This is the final order of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulation, section 1201.113 ( 5 C.F.R. § 1201.113 )

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 petiti on 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 incl ude the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a).

NOTICE TO THE APPELL ANT REGARDING YOUR FUR THER REVIEW RIGHTS You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address: United States Court of Appeals for the Federal C ircuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order bef ore you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose4

to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statu tory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 15 44 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ). You may read this law, as well as review the Board’s regulations and other related material, at our website, http://www.mspb.gov. Additional information is avail able 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, and 11. If y ou are interested in securing pro bono representation for your court appeal, you may visit our website at http://www.mspb.gov/probono for a list of attorneys who have expressed interest in providing pro bono repr esentation for Merit Systems Protection Board appellants before the court. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD :

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board