UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2017 MSPB 2

Docket No. DE-3443-12-0472-C-1

Joyce M. Delorme,

Appellant,

v.

Department of the Interior,

Agency.

January 4, 2017

Joyce M. Delorme, Belcourt, North Dakota, pro se.

Teresa M. Garrity, Esquire, Bloomington, Minnesota, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the compliance initial 

decision, which dismissed her compliance appeal for lack of jurisdiction. For the 

reasons set forth below, we GRANT the petition for review, VACATE the 

compliance initial decision, and REMAND the compliance appeal to the field 

office for further adjudication consistent with this Opinion and Order. 

BACKGROUND

¶2 The agency appointed the appellant to the excepted-service position of 

Police Officer in the Office of Justice Services for the Bureau of Indian Affairs 

(BIA), in March 2011. Delorme v. Department of the Interior, MSPB Docket 
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No. DE-3443-12-0472-I-1, Initial Appeal File (IAF), Tab 7 at 21-22, 31-32. 

Citing regulations pertaining to the termination of probationers, the agency 

separated the appellant in July 2012. Id. at 21-23 (citing 5 C.F.R. § 315.804). 

¶3 The appellant filed a Board appeal. IAF, Tab 1. Without holding a 

hearing, the administrative judge dismissed the appeal for lack of jurisdiction, 

finding that the appellant did not meet the definition of “employee” under 

5 U.S.C. § 7511(a)(1). IAF, Tab 17, Initial Decision (ID). The appellant filed a 

petition for review, and the Board remanded the matter for further adjudication. 

Delorme v. Department of the Interior, MSPB Docket No. DE-3443-12-0472-I-1, 

Remand Order (Sept. 13, 2013), Petition for Review (PFR) File, Tab 4. The 

Board found that the appellant made a nonfrivolous allegation that she was only 

required to serve a 1-year probationary period, which she completed prior to her 

separation, entitling her to a jurisdictional hearing. Remand Order at 7-8. 

¶4 On remand, the administrative judge reopened discovery, limited to the 

jurisdictional issue. Delorme v. Department of the Interior, MSPB Docket 

No. DE-3443-12-0472-B-1, Remand File (RF), Tab 6. While jurisdiction was 

still unresolved, the parties entered into a settlement agreement. RF, Tab 9

at 4-9. The parties stipulated that the agreement was “submitted for enforcement 

by the [Board].” Id. at 7. 

¶5 The administrative judge dismissed the appeal as withdrawn. RF, Tab 10, 

Remand Initial Decision (RID). In the remand initial decision, the administrative 

judge found that the settlement agreement was lawful and freely reached. RID 

at 1-2. He noted that, during a teleconference with the parties’ representatives, 

he reminded them that, due to the unresolved question of whether the Board had 

jurisdiction over the underlying matter appealed, any settlement agreement they 

might reach would not be enforceable by the Board, although it still would be a 

binding contract between the parties. RID at 2. Recognizing that the parties 

requested in paragraph 6 of the agreement that it “shall be entered into the record 

with the Merit Systems Protection Board” and that “[t]he parties agree that the 
3

Settlement Agreement is an enforceable contract between the parties,” however, 

the administrative judge accepted the agreement into the record for the limited 

purpose of memorializing that this appeal was withdrawn as part of an agreement. 

Id. Neither party filed a petition for review of the remand initial decision. 

¶6 Following the dismissal of the appeal, the appellant filed a petition for 

enforcement in October 2015, alleging that the agency violated the agreement. 

Delorme v. Department of the Interior, MSPB Docket No. DE-3443-12-0472-C-1, 

Compliance File (CF), Tab 1 at 5, 14.

¶7 The administrative judge provided the parties with an opportunity to 

address whether the Board has jurisdiction over the petition for enforcement, 

noting that the agreement had not been accepted for enforcement purposes with 

the Board. CF, Tab 3 at 2-3. Thereafter, the administrative judge dismissed the 

petition for enforcement, concluding that the agreement was not enforceable by

the Board because the question of whether the Board had jurisdiction over the 

underlying matter appealed had not yet been determined. CF, Tab 12, 

Compliance Initial Decision at 4-8. 

¶8 The appellant has filed a petition for review of the compliance initial

decision. Delorme v. Department of the Interior, MSPB Docket 

No. DE-3443-12-0472-C-1, Compliance Petition for Review (CPFR) File, 

Tabs 1-2. The agency has filed a response, and the appellant has replied. CPFR 

File, Tabs 4-5. 

ANALYSIS

¶9 The Board’s “powers and functions” are set forth under 5 U.S.C. § 1204. 

In pertinent part, the statute provides that the Board shall: 

(1) hear, adjudicate, or provide for the hearing or adjudication, of all 

matters within the jurisdiction of the Board . . . ; [and]

(2) order any Federal agency or employee to comply with any order 

or decision issued by the Board under the authority granted under 

paragraph (1) . . . and enforce compliance with any such order. 
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5 U.S.C. § 1204(a)(1)-(2). Although section 1204 does not specifically address 

the Board’s authority to settle appeals brought before it, 5 U.S.C. § 7701(h) 

provides that “[t]he Board may, by regulation, provide for one or more alternative 

methods for settling matters subject to [its] appellate jurisdiction which 

shall . . . be in lieu of other procedures provided for under this section. ” The 

Board’s decision implementing such a settlement is generally final. 5 U.S.C. 

§ 7701(h). In turn, the Board’s regulations provide that, for the Board to retain 

jurisdiction to enforce a settlement agreement after the underlying appeal has 

been dismissed with prejudice, the agreement must be entered into the record of 

the case. 5 C.F.R. § 1201.41(c)(2).

¶10 Initially, following the Board’s creation under the Civil Service Reform 

Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, Board precedent

provided that the only requirements for it to enter a settlement agreement in the 

record and retain jurisdiction to enforce it were that the agreement was lawful on 

its face and reached freely by the parties. Richardson v. Environmental 

Protection Agency, 5 M.S.P.R. 248, 250 (1981); see Rivera-Torres v. Department 

of Navy, 26 M.S.P.R. 199, 200 (1985); Placke v. Tennessee Valley Authority, 

13 M.S.P.R. 558, 559 (1982). In Richardson, the Board explained that the 

resolution of an appeal on the basis of a settlement agreement constitutes a final 

decision issued under the Board’s appellate jurisdiction and, as a result, the Board 

has authority to enforce the settlement agreement. Richardson, 5 M.S.P.R. 

at 250; see Fredendall v. Veterans Administration, 38 M.S.P.R. 366, 370 (1988) 

(citing Richardson for this proposition), modified on other grounds by Jones v. 

Office of Personnel Management, 61 M.S.P.R. 252, 254 (1994); cf. Banks v. U.S. 

Postal Service, 11 M.S.P.R. 100, 101 (1982) (stating that, in Richardson, the 

Board held that if the settlement agreement is not made a part of the record and 

the appellant withdraws the appeal, the Board loses jurisdiction). The Board 

concluded that to interpret the CSRA in another way would conflict with public 

policy favoring settlement agreements in civil actions, which serve to avoid 
5

unnecessary litigation and to encourage fair and speedy resolution of issues. 

Richardson, 5 M.S.P.R. at 250. 

¶11 The U.S. Court of Appeals for the Federal Circuit has long recognized the 

Board’s authority in this regard. Citing Richardson, it found that “[i]f the MSPB 

approves the settlement agreement and makes it part of the record, the MSPB 

‘retain[s] jurisdiction to ensure compliance with the agreement.’” Perry v. 

Department of the Army, 992 F.2d 1575, 1577 (Fed. Cir. 1993) (quoting 5 C.F.R. 

§ 1201.41(c)(2)(i)). 

¶12 The standard set forth in Richardson for accepting a settlement agreement 

into the record for enforcement purposes did not include a requirement that the 

Board first determine whether it has jurisdiction over the underlying matter 

appealed. However, the Board added that requirement in Shaw v. Department of 

the Navy, 39 M.S.P.R. 586, 590-91 (1989), overruled on other grounds by 

Joyce v. Department of the Air Force, 74 M.S.P.R. 112 (1997), overruled by 

Sacco v. Department of Justice, 90 M.S.P.R. 37 (2001). In doing so, the Board 

relied on statutory language, including the language codified in 5 U.S.C. § 7701, 

which concerns the Board’s appellate procedures. The Board reasoned that, 

under the CSRA, Congress expressed an intent to provide it with authority to 

settle cases, but only those over which it has jurisdiction. Shaw, 39 M.S.P.R. 

at 590-91. In making this determination, the Board held that such a reading of 

the CSRA, “even if not required, would be a reasonable interpretation of both the 

[CSRA] and the public policy favoring settlements.” Id. at 591.1 Since Shaw, the 

Board has consistently held that, before an administrative judge accepts a 

settlement agreement into the record for enforcement purposes, he must first find

that the agreement is lawful on its face; the agreement was freely entered into by 

 

1 We recognize that Shaw also concerned the Board’s authority to award attorney fees in 

a case in which the jurisdictional issue had not yet been determined. Because this case 

does not concern an attorney fees award, we need not reach that issue here. 
6

the parties; and the subject matter of the appeal is within the Board’s jurisdiction. 

Evans v. Selective Service System, 91 M.S.P.R. 376, ¶ 8 (2002); see Spidel v. 

Department of Agriculture, 113 M.S.P.R. 67, ¶ 6 (2010); Heath v. U.S. Postal 

Service, 107 M.S.P.R. 366, ¶ 4 (2007). 

¶13 As discussed below, we believe that Shaw represents a misreading of the 

Board’s statutory enforcement authority concerning settlement agreements. 

Furthermore, with the benefit of nearly three additional decades promoting efforts 

to settle appeals under the Board’s significantly expanded jurisdiction, we 

conclude that the interpretation of the Board’s enforcement authority in Shaw has 

served to impede, rather than further, the public policy favoring settlements. 

Therefore, we now set forth a more reasonable interpretation of the Board’s 

statutory enforcement authority, which we believe will promote the public policy 

favoring settlements. Accordingly, we overrule Shaw and its progeny to the 

extent that they required that jurisdiction be established over the underlying 

matter appealed before a settlement agreement could be accepted into the record 

and enforced by the Board. 

¶14 We find that the plain language of 5 U.S.C. §§ 1204(a)(1)-(2) and 7701(h) 

supports the exercise of enforcement authority over settlement agreements that 

have been entered into the record, independent of any prior finding of Board 

jurisdiction over the underlying matter being settled. As previously detailed, 

section 1204(a)(1) authorizes the Board to “hear, adjudicate, or provide for the 

hearing or adjudication, of all matters within the [Board’s] jurisdiction.” A 

necessary corollary is that the Board retains the authority to hear and adjudicate 

the question of whether, in fact, it possesses jurisdiction over the issues raised in 

a given case. In Cruz v. Department of the Navy, 934 F.2d 1240, 1244 (Fed. Cir.

1991), the Federal Circuit found that the Board may determine whether a 

resignation is involuntary, and thus an appealable constructive removal, “because 

it has jurisdiction to determine its jurisdiction.” See also Braun v. Department of 

Veterans Affairs, 50 F.3d 1005, 1008 (Fed. Cir. 1995) (finding that an appellant’s 
7

nonfrivolous allegations of a coerced resignation were sufficient to “trigger the 

Board’s jurisdiction [to determine its jurisdiction] at this threshold stage,” 

necessitating an evidentiary hearing); Lloyd v. Small Business Administration, 

96 M.S.P.R. 518, ¶ 16 (2004) (recognizing that the Board has inherent authority 

to determine whether a matter is within its jurisdiction). 

¶15 Concurrent with the Board’s authority under 5 U.S.C. § 1204(a)(1) to 

determine whether a given matter falls within its jurisdiction, the Board also 

possesses authority under 5 U.S.C. § 1204(a)(2) to “order any Federal agency or 

employee to comply with any order or decision issued by the Board under the 

authority granted under [section 1204(a)(1)] and enforce compliance with any 

such order.” Accordingly, pursuant to its authority under sections 1204(a)(1) 

and (2), the Board is authorized to issue, for example, acknowledgment orders, 

discovery orders, and orders to show cause. See generally

5 C.F.R. § 1201.41(b)-(c) (discussing administrative judges’ authority); see also

5 U.S.C. § 1204(b) (granting the Board authority to issue subpoenas, order the 

taking of depositions, and order responses to written interrogatories). Neither the 

authority to adjudicate and hear the issues in an appeal, nor to issue and enforce 

orders in connection with that adjudication or hearing, is contingent on a prior 

finding that the appeal falls within the Board’s jurisdiction, at least in those cases 

where the question of jurisdiction is precisely the one in need of resolution. 

¶16 We find that the source of the Board’s authority to enforce settlement 

agreements is likewise independent of the Board’s jurisdiction over the 

underlying matter appealed. As the Federal Circuit expressly found, when a case 

has been resolved through settlement, the question of whether Board jurisdiction 

previously had been established over the underlying matter appealed is irrelevant 

to subsequent enforcement of the agreement, as the underlying appeal has been 

withdrawn and dismissed under the terms of the settlement agreement, thereby 

ending any jurisdiction the Board might have once had. To that end, the 

court emphasized: 
8

Although employees may petition the [B]oard to exercise its 

preexisting jurisdiction to enforce settlement agreements already 

entered into the record, the [B]oard is not then acting under its 

§ 1204(a)(1) authority . . . . Once a settlement agreement has been 

entered into the record, the original appealable action is withdrawn 

or dismissed. The [B]oard retains jurisdiction over a settlement 

agreement made part of the record pursuant to its power under 

5 U.S.C. § 1204(a)(2) to enter and enforce its own orders. We 

conclude that under the [B]oard’s retained jurisdiction, 5 U.S.C. 

§ 1204(a)(2), the [B]oard may decide whether an agency has 

breached a settlement entered on the record and thus violated 

its order.

King v. Reid, 59 F.3d 1215, 1218-19 (Fed. Cir. 1995). Thus, per King, in a case 

in which the parties have settled before a jurisdictional determination is made, the 

Board retains jurisdiction under 5 U.S.C. § 1204(a)(2) to enforce the agreement if 

it has been entered into the record for that purpose. 

¶17 Although our conclusion is rooted in our interpretation of the law, we 

observe that it also furthers public policy considerations. Richardson and Shaw 

both correctly recognized the long-established public policy favoring settlement 

agreements, which serve to avoid unnecessary litigation and to encourage fair and 

speedy resolution of issues. Shaw, 39 M.S.P.R. at 590; Richardson 5 M.S.P.R. 

at 250. However, in effect, Shaw’s interpretation of the CSRA greatly frustrated 

that policy. 

¶18 Because Shaw and its progeny required that an appellant prove jurisdiction 

over the underlying matter appealed before the Board would accept a lawful 

settlement agreement into the record for enforcement, entire classes of appeals 

were cut off from the possibility of settlement and enforcement with the Board. 

For example, in constructive adverse action appeals, in which an appellant alleges 

that her leave, resignation, or retirement was involuntary, the dispositive issue 

before the Board is jurisdictional. See Aldridge v. Department of Agriculture, 

111 M.S.P.R. 670, ¶ 7 (2009) (observing that the jurisdictional issue and the 

merits of an alleged involuntary resignation or retirement are inextricably 
9

intertwined). If the appellant ultimately prevails on the jurisdictional question, 

the case is effectively over and the appellant wins on the merits. Id. The parties 

in such a case may well be motivated to settle their dispute, avoiding the time, 

expense, and risk of litigating the dispositive legal question at issue, i.e., whether 

the leave, resignation, or retirement was involuntary. 

¶19 In other types of cases, parties may wish to settle an appeal before 

determining whether an appellant has satisfied any number of complex 

jurisdictional questions, even if jurisdiction is not the dispositive issue. See 

generally Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶¶ 5-6 (2016) 

(discussing the jurisdictional standard in an individual right of action—or 

whistleblower reprisal—appeal); Miller v. Federal Deposit Insurance 

Corporation, 121 M.S.P.R. 88, ¶ 6 (2014) (discussing the jurisdictional standard 

in a veterans’ preference Veterans Employment Opportunities Act of 1998 

(VEOA) claim), aff’d, 818 F.3d 1357 (Fed. Cir. 2016); Becker v. Department of 

Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (discussing the jurisdictional 

standard in a right-to-compete VEOA claim). Parties may even wish to settle 

seemingly straightforward appeals, which involve the question of whether the 

appellant qualifies as an employee under 5 U.S.C. § 7511(a)(1). 

¶20 In each of the aforementioned scenarios, otherwise productive settlement 

efforts, with all their potential benefits for the parties, the Board, and the 

taxpayer, may be complicated or ultimately defeated by the jurisdictional 

requirement introduced in Shaw. Under our current interpretation of the CSRA 

and the Board’s enforcement authority, the public policy objectives cited in 

Richardson and Shaw are furthered, allowing the conservation of resources 

through settlement in all colorable appeals brought before the Board. 

¶21 In sum, we find that the Board’s statutory authority and public policy 

considerations both support the exercise of enforcement authority over settlement 

agreements that have been entered into its record for that purpose, independent of 
10

any prior finding of Board jurisdiction over the underlying matter appealed. We, 

therefore, overrule Shaw and its progeny on that issue. 

ORDER

¶22 This matter is remanded to the Denver Field Office. On remand, the 

administrative judge should determine whether the parties intended to enter the 

agreement into the record for enforcement purposes. If the parties so intended, 

the administrative judge should enter the agreement into the record for these 

purposes and adjudicate the compliance matter. If the parties did not so intend, 

then the administrative judge should determine whether the agreement was based 

on mutual mistake, i.e., that the agreement could not be entered into the record 

for enforcement purposes. If it was based on mutual mistake, then the 

administrative judge must consider whether the underlying appeal must be 

reinstated. If the agreement was not based on mutual mistake and the parties 

did not intend to enter the agreement into the record for enforcement purpose

then the administrative judge should issue a new compliance initial decision, 

dismissing the petition for enforcement on that basis. 

FOR THE BOARD:

______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.