UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GLORIA H. LOJEWSKI,

Appellant,

v. 

UNITED STATES POSTAL SERVICE,

Agency. 

DOCKET NUMBER

AT-0353-16-0069-I-1

DATE: October 11, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bensy Benjamin, Esquire, Washington, D.C., for the appellant. 

Margaret L. Baskette, Esquire, Tampa, Florida, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her appeal as withdrawn. For the reasons discussed below, we GRANT 

the appellant’s petition for review, VACATE the initial decision dismissing the 

appeal as withdrawn, and DISMISS the appeal for lack of jurisdiction. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 The appellant, a nonpreference-eligible City Carrier with the agency, filed a 

Board appeal alleging that the agency violated her restoration rights when it 

failed to comply with a grievance decision requiring it to provide her with a 

limited-duty work assignment within her medical restrictions and a retroactive 

pay adjustment. Initial Appeal File (IAF), Tab 1 at 1, 4, 6, Tab 8 at 14. The 

agency moved to dismiss the appeal, arguing that the Board lacked jurisdiction 

over the appeal because: (1) the appellant had settled her restoration claim during 

the grievance process prior to filing her Board appeal and had not reserved the 

right to appeal to the Board; and (2) the Board lacked authority to enforce the 

grievance settlement. IAF, Tab 8 at 4-12. With its motion to dismiss, the agency 

submitted a copy of a grievance decision, dated September 16, 2015, which 

indicated that the agency and the appellant had settled the appellant’s grievance 

regarding her restoration claim approximately a month before she filed her Board 

appeal. Id. at 14-17; see IAF, Tab 1 at 1. 

¶3 On January 12, 2016, the administrative judge ordered the appellant to 

submit evidence and argument in support of her position if: (1) she disagreed that 

the issues that she raised in her Board appeal were settled during the grievance 

process; or (2) she disagreed that the Board lacked jurisdiction over her appeal 

due to the settlement of her grievance. IAF, Tab 10 at 2. On January 26, 2016, 

the appellant’s counsel filed a pleading indicating that she was withdrawing from 

representing the appellant. 2

 IAF, Tab 12 at 4. The pleading further stated that 

the appellant did not intend to file a brief in response to the January 12, 2016 

 2 When the appellant initially filed her Board appeal, she was represented by 

Matthew Ward, Esquire. IAF, Tab 1 at 3. Mr. Ward withdrew from representing the 

appellant on November 19, 2015. IAF, Tab 7 at 4. The appellant was subsequently 

represented by Bensy Benjamin, Esquire, from December 22, 2015, until Ms. Benjamin

withdrew as counsel on January 26, 2016. IAF, Tab 9 at 2, 12 at 4. On review, the 

appellant is again represented by Ms. Benjamin. PFR File, Tab 1 at 8-9, 13, Tab 3 

at 16. 
3

order, and that she “anticipat[ed] withdrawing her [a]ppeal by the end of the 

week.” Id. 

¶4 However, the appellant did not file a notice of withdrawal, and on 

February 10, 2016, the administrative judge issued an order directing the 

appellant to notify her by February 16, 2016, if she wished to continue to pursue 

her appeal.

3

 IAF, Tab 14 at 1. The administrative judge informed the appellant 

that if she failed to respond to the February 10, 2016 order, she would interpret 

the appellant’s silence as an expression that she did not oppose her appeal being 

dismissed as withdrawn. Id. 

¶5 The appellant did not respond to the order, and on February 17, 2016, the 

administrative judge issued an initial decision dismissing the appeal as 

withdrawn. IAF, Tab 15, Initial Decision (ID). The appellant has filed a petition 

for review of the initial decision, in which she contends that the administrative 

judge erred in dismissing the appeal as withdrawn. Petition for Review (PFR) 

File, Tab 3 at 9-10. She also argues that the Board has jurisdiction over the 

appeal because she intended to appeal from a September 5, 2015 Final Agency 

Decision (FAD) on a formal equal employment opportunity (EEO) complaint 

regarding a restoration claim, in addition to seeking enforcement of the grievance 

settlement. Id. at 11-15. The agency has responded in opposition to the petition 

for review. PFR File, Tab 7. 

¶6 On July 27, 2016, the Board issued a show cause order directing the parties 

to submit evidence and argument regarding: (1) whether the restoration issues 

raised in the appellant’s EEO complaint were identical to those resolved in the 

grievance settlement; and (2) whether the grievance settlement precluded the 

appellant from appealing the restoration issues raised in her EEO complaint to the 

 3 The administrative judge also ordered the appellant to file a response to the 

jurisdictional issues raised in the January 12, 2016 order if she wished to pursue her 

appeal. IAF, Tab 14 at 1. 
4

Board. PFR File, Tab 8 at 3. Both parties responded to the show cause order. 

PFR File, Tabs 9-12. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in dismissing the appeal as withdrawn. 

¶7 An appellant’s withdrawal of an appeal is an act of finality that removes the 

appeal from the Board’s jurisdiction. Lincoln v. U.S. Postal 

Service, 113 M.S.P.R. 486, ¶ 7 (2010). Generally, the Board will not reinstate a 

withdrawn appeal absent unusual circumstances, such as misinformation or new 

and material evidence. Wooten v. Office of Personnel Management, 86 M.S.P.R. 

113, ¶ 5 (2000). However, the relinquishment of one’s right to appeal to the 

Board must be by clear, unequivocal, and decisive action. Id.; Phillips v. 

Department of the Air Force, 71 M.S.P.R. 381, 383 (1996); Etheridge v. 

Department of Veterans Affairs, 67 M.S.P.R. 53, 56 (1995). 

¶8 In the initial decision, the administrative judge dismissed the appeal as 

withdrawn on the ground that the appellant failed to respond to the February 10, 

2016 order, without making any finding whether the appellant’s withdrawal was 

clear, unequivocal, and decisive. ID at 1-2. On review, the appellant contends 

that her failure to respond to the order was not a clear, unequivocal, or decisive 

action establishing that she wished to relinquish her right to appeal to the Board. 

PFR File, Tab 3 at 9-10. We agree. 

¶9 Although the appellant’s counsel filed a pleading stating that the appellant 

anticipated withdrawing her appeal, the record does not reflect that the appellant 

took any affirmative action to withdraw the appeal or made any affirmative 

representations that she was withdrawing the appeal. See Hopkins v. Office of 

Personnel Management, 67 M.S.P.R. 289, 291 (1995) (finding that an 

administrative judge erred in dismissing an appeal as withdrawn when the only 

evidence in the record regarding the appellant’s withdrawal of her appeal was a 

memorandum reflecting that the appellant’s representative indicated during a 
5

teleconference that he was considering withdrawing the appeal); cf.

Lincoln, 113 M.S.P.R. 486, ¶¶ 5, 8 (finding that an administrative judge correctly 

dismissed an appeal as withdrawn when an appellant filed a signed notice of 

withdrawal); Clark v. Department of the Treasury, 9 M.S.P.R. 48, 49-50 (1981) 

(finding that an administrative judge properly dismissed an appeal as withdrawn 

when the appellant’s representative stated on the record that the appellant was 

withdrawing an appeal, and both the appellant and his representative signed a 

settlement agreement). Under the circumstances, including the appellant’s pro se 

status at the time of the February 26, 2016 order, the lack of any affirmative 

action by her to withdraw the appeal, and the absence of any evidence that she 

understood or was informed that withdrawing the appeal was an act of finality, we 

find that the appellant’s failure to respond to a single order is not the kind of 

clear, unequivocal, and decisive action necessary to effectuate the withdrawal of 

an appeal. See Wooten, 86 M.S.P.R. 113, ¶ 7 (finding that an administrative 

judge erred in dismissing an appeal as withdrawn when an appellant affirmatively 

responded to the administrative judge’s inquiry regarding whether he wished to 

withdraw the appeal, considering, among other things, the appellant’s pro se 

status and the fact that he continued to have questions about what would happen 

with his appeal); cf. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶¶ 4-15 

(2016) (affirming an initial decision dismissing a restoration appeal for lack of 

jurisdiction, rather than as withdrawn, when an appellant failed to respond to a 

jurisdictional order and she did not otherwise raise nonfrivolous allegations to 

establish jurisdiction over her appeal). Accordingly, we find that the 

administrative judge erred in dismissing the appeal as withdrawn, and we vacate 

the initial decision dismissing the appeal as withdrawn. 

We dismiss the appeal for lack of jurisdiction. 

¶10 We turn next to the question of whether the appeal should be dismissed for 

lack of jurisdiction, as opposed to be dismissed as withdrawn. After reviewing
6

the parties’ responses to the show cause order and other pleadings on review, we 

find that the Board lacks jurisdiction over the appeal. 

¶11 When an employee chooses to settle a grievance, that course of action may 

divest the Board of jurisdiction over the underlying matter. Hanna v. U.S. Postal 

Service, 101 M.S.P.R. 461, ¶ 8 (2006). The Board will review the terms of a 

settlement agreement and the surrounding circumstances to determine if it retains 

jurisdiction over an appeal that was settled in another procedural avenue. Id.

Even when a settlement agreement does not explicitly bar a Board appeal, the 

appellant must have expressly reserved the right to seek Board review for the 

Board to retain jurisdiction. Mays v. U.S. Postal Service, 995 F.2d 1056, 1060 

(Fed. Cir. 1993); Swink v. U.S. Postal Service, 111 M.S.P.R. 620, ¶ 11 (2009), 

aff’d, 372 F. App’x 90 (Fed. Cir. 2010). 

¶12 Here, on or about January 23, 2015, the appellant’s union filed a grievance 

on her behalf, alleging that, from October 10, 2014, onwards, the agency violated 

a collective bargaining agreement and the agency’s Employee and Labor 

Relations Manual (ELM) when it failed to provide the appellant with a 

limited-duty work assignment within her medical restrictions. PFR File, Tab 11 

at 15, 20, 23-40. Among other things, the appellant’s union alleged that

limited-duty work assignments that the agency provided the appellant on 

October 23, 2014, and January 5, 2015, required her to work outside of her 

medical restrictions. Id. at 23-25, 29. 

¶13 The September 16, 2015 grievance decision, which was signed by the 

appellant’s union representative and an agency representative, reflects that the 

parties settled the appellant’s grievance. IAF, Tab 8 at 14, 17. Pursuant to the 

settlement, the agency agreed that it violated the collective bargaining agreement 

when it failed to demonstrate that it conducted a search for a limited-duty work 

assignment within the appellant’s medical restrictions in accordance with the 

requirements of the ELM. Id. at 14. The agency further agreed that the appellant 

would be: 
7

[M]ade whole for any loss of wages and benefits beginning 

10/10/2014 until such time as [the appellant] is returned to full duty 

and/or application of the [applicable sections] of the [ELM] have 

been fulfilled. 

Id. The grievance decision does not reflect, and the appellant does not allege, 

that she reserved the right to file a Board appeal. Id. at 14-17; see PFR File,

Tab 9. 

¶14 The appellant has not attempted to disavow the grievance settlement, either 

below or on review. IAF, Tabs 1, 12; PFR File, Tabs 1, 3, 9; see Perry v. U.S. 

Postal Service, 78 M.S.P.R. 272, 278 (1997) (finding that, although an appellant 

did not reserve the right to appeal to the Board in a grievance settlement 

agreement, he could still establish jurisdiction over his Board appeal if he 

demonstrated that he involuntarily entered into the settlement agreement). 

Instead, in her initial appeal form, the appellant appeared to seek enforcement of 

the grievance settlement through her Board appeal. IAF, Tab 1 at 6. However, 

the Board lacks jurisdiction to enforce a settlement agreement, such as the 

grievance settlement at issue here, that was reached in another forum and was not 

entered into the record of a Board appeal for enforcement purposes. Johnson v. 

U.S. Postal Service, 108 M.S.P.R. 502, ¶ 8 n.5 (2008) (finding that the Board has 

no authority to enforce or invalidate a settlement agreement reached in another 

forum), aff’d, 315 F. App’x 274 (Fed. Cir. 2009); Lopez v. U.S. Postal 

Service, 71 M.S.P.R. 461, 463 (1996) (finding that the Board lacked jurisdiction 

to enforce a settlement agreement that was not entered into the record for 

enforcement purposes). 

¶15 On review, the appellant does not dispute that the grievance settlement 

divests the Board of jurisdiction over the matters raised in her grievance, or that 

the Board lacks jurisdiction to enforce the grievance settlement agreement. PFR 

File, Tabs 3, 9. However, for the first time on review, the appellant argues that 

the Board has jurisdiction over her appeal despite the grievance settlement, 

because she also intended to appeal from the September 5, 2015 FAD on her
8

formal EEO complaint, in which she alleged that the agency discriminated against 

her based on age, sex, and disability when it: (1) attempted to make her work 

outside of her medical restrictions on October 29, 2014, and January 5-9, 2015; 

and (2) told her that there was no work within her medical restrictions on 

January 9, 2015. PFR File, Tab 3 at 3-4, 11-15, Tab 9 at 2-9; IAF, Tab 8 

at 19-41, Tab 11 at 30-52, 418, 433-35. The appellant does not explain why she 

failed to raise this argument below, when, as here, the agency referenced the EEO 

complaint and the FAD in its pleadings below, and filed the FAD twice below. 

PFR File, Tab 3 at 3-4, 11-15, Tab 9; see IAF, Tab 8 at 5, 19-41, Tab 11 at 8, 

30-52. Nevertheless, because the appellant alleges that her new argument 

implicates the Board’s jurisdiction over the appeal, and the issue of jurisdiction is 

always before the Board and may be raised by any party or sua sponte by the 

Board at any time during a Board proceeding, we will consider the appellant’s 

argument. See Lovoy v. Department of Health & Human Services, 94 M.S.P.R. 

571, ¶ 30 (2003) (finding that the issue of the Board’s jurisdiction is always 

before the Board, and it may be raised by either party or sua sponte by the Board 

at any time). 

¶16 After considering the parties’ responses to the show cause order, we find 

that the appellant failed to demonstrate that she raised any appealable issues in 

her formal EEO complaint distinct from those raised and resolved in her 

grievance. PFR File, Tabs 3, 9. The September 16, 2015 grievance decision, the 

grievance form, and the union’s detailed contentions in support of the grievance 

demonstrate that the grievance settlement encompassed the appealable restoration 

issues raised in the appellant’s formal EEO complaint—that is, the agency’s 

failure to conduct a proper search for a limited-duty work assignment within the 

appellant’s medical restrictions, and the appellant’s claims that the agency 

attempted to make her work outside of her medical restrictions in the October 23, 

2014 and January 5, 2015 limited-duty work assignments. IAF, Tab 8 at 14, 

19-41; PFR File, Tab 11 at 15, 20, 23-40. 
9

¶17 On review, the appellant argues that the Board has jurisdiction over her 

appeal because in an informal EEO complaint that she filed on or about 

January 20, 2015, she alleged that agency managers harassed limited-duty 

employees, an issue that she contends is distinct from the restoration claims

resolved in her grievance. PFR File, Tab 9 at 4, 6-9, Tab 11 at 14, 399. We 

disagree. As an initial matter, the appellant’s harassment claim was not accepted 

for investigation as part of her formal EEO complaint or addressed in the FAD, 

and the appellant does not contend that she objected to the issues accepted for 

investigation, despite being notified of the accepted issues and afforded the 

opportunity to do so. PFR File, Tab 11 at 418, 458. Moreover, even if the 

appellant’s harassment claim was included in her formal EEO complaint, the 

Board only could consider such a claim to the extent that it pertained to the issue 

of whether the agency’s denial of restoration was arbitrary and capricious. See 

Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 58 (2012), superseded by 

regulation on other grounds as recognized in Kingsley v. U.S. Postal 

Service, 123 M.S.P.R. 365, ¶ 10. However, because the grievance settlement

encompassed the appellant’s claim that she was denied restoration during the time 

period at issue in her formal EEO complaint, and the appellant did not reserve the 

right to appeal to the Board, the Board lacks jurisdiction to address this issue. 

See Swink, 111 M.S.P.R. 620, ¶ 11; Hanna, 101 M.S.P.R. 461, ¶ 8. 

¶18 Contrary to the appellant’s assertions on review, the appellant’s

discrimination claims in her formal EEO complaint also do not confer Board 

jurisdiction over her appeal. PFR File, Tab 3 at 13. Although a denial of 

restoration based on prohibited discrimination may be arbitrary and capricious, 

see Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 15 (2013), similar to the 

appellant’s harassment claims, the grievance settlement divested the Board of 

jurisdiction over the appellant’s claims that the agency violated her restoration 

rights, regardless of whether that denial was based on discrimination or some 

other reason. See Swink, 111 M.S.P.R. 620, ¶ 11; Hanna, 101 M.S.P.R. 461, ¶ 8. 
10

Moreover, the Board does not have jurisdiction over the appellant’s

discrimination claims in the absence of jurisdiction over her restoration appeal or 

any other appealable action. See Latham, 117 M.S.P.R. 400, ¶ 58; Wren v. 

Department of the Army, 2 M.S.P.R. 1, 2 (1980) (finding that prohibited 

personnel practices under 5 U.S.C. § 2302(b) are not an independent source of 

Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). 

¶19 Thus, because the Board lacks jurisdiction over the appellant’s restoration 

claims, this is not a mixed case, and the Board lacks jurisdiction to consider the 

appellant’s claims under mixed-case procedures. 4 See 5 U.S.C. § 7702(a)(1) 

(providing Board jurisdiction over discrimination claims raised in connection 

with otherwise appealable actions); 29 C.F.R. § 1614.302(a)(2) (defining a 

mixed-case complaint as a complaint of discrimination “related to or stemming 

from an action that can be appealed to” the Board). Accordingly, we dismiss the 

appeal for lack of jurisdiction. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

This Final Order constitutes the Board’s final decision in this 

matter. 5 C.F.R. § 1201.113. You have the right to request review of this final 

decision by the U.S. Court of Appeals for the Federal Circuit. You must submit 

your request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

 4 On review, the appellant notes that the FAD provided mixed-case appeal rights. PFR 

File, Tab 3 at 13. However, the fact that the FAD provided mixed-case appeal rights is 

insufficient to confer jurisdiction over the appeal. Morales v. Social Security 

Administration, 108 M.S.P.R. 583, ¶ 5 (2008) (finding that the mere fact that an agency 

informed the appellant that she may have a right of appeal to the Board did not confer 

jurisdiction on the Board). 
11

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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 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.

______________________________

Jennifer Everling

Acting Clerk of the Board