UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DIANE HORN-CRUDER,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DC-0752-14-0795-C-3

DATE: December 2, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Diane Horn-Cruder, Gaithersburg, Maryland, pro se.

Matthew M. Vince and Susan M. Andorfer, Esquire, Washington, D.C., 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 compliance initial 

decision, which dismissed her petition for enforcement of the settlement 

agreement resolving her removal appeal as barred by res judicata. Generally, we 

grant petitions such as this one only in the following circumstances: the initial 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

decision contains erroneous findings of material fact; the initial decision is based 

on an erroneous interpretation of statute or regulation or the erroneous a pplication 

of the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affec ted the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant from her position as a GS-11 Program 

Analyst, and she timely appealed her removal to the Board. Horn‐Cruder v. 

Department of Health & Human Services, MSPB Docket No. DC‐0752‐14-0795-

I-1, Initial Appeal File (IAF), Tab 1. While the appeal was pending, the parties 

entered into a settlement agreement, which provided, in relevant part, that the 

appellant would withdraw her appeal with prejudice and that the agency would 

pay her a lump sum payment and attorney fees, rescind the Standard Form 50 

documenting her removal and replace it with one reflecting that she voluntarily 

retired, and expunge documents related to her removal from her official personnel 

file and her direct supervisors’ files. IAF, Tab 7 at 5-6. The administrative judge 

found that the settlement was lawful on its face and that the parties freely entered 

into the agreement and understood its terms. IAF, Tab 8, Initial Decision (ID) 

at 2. Accordingly, in an October 2, 2014 initial decision, she entered the 
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settlement agreement into the record for purposes of enforcement by the Board 

and dismissed the appeal as settled. Id. 

¶3 On March 10, 2015, the appellant filed a petition for enforcement of the 

settlement agreement, arguing that the agency had failed to comply with its 

obligation to expunge documents related to her removal from her personnel file—

specifically, an October 24, 2013 letter banning the appellant from the National 

Institutes of Health (NIH) campus and other NIH work locations. Horn-Cruder v. 

Department of Health & Human Services, MSPB Docket No. DC-0752-14-0795-

C-1, Compliance File (CF), Tab 1 at 2-8, 23. While the petition for enforcement 

was pending, the parties entered into another settlement agreement, dated May 15, 

2015, resolving the compliance matter. CF, Tab 10. In relevant part, the agency 

stipulated that the campus ban had been lifted as of April 21, 2015, agreed to pay 

attorney fees arising from the compliance matter, and agreed to provide the 

appellant’s representative a letter stating that the campus ban had been lifted and 

that the October 24, 2013 letter regarding the ban need not be expunged because 

it was never made part of the appellant’s official personnel file. Id. at 6-7. The 

administrative judge found that the settlement agreement was lawful on its face 

and that the parties freely entered into it and understood its terms. CF, Tab 12, 

Compliance Initial Decision (CID) at 2. Accordingly, in a May 27, 2015 

compliance initial decision, she entered the settlement agreement into the record 

for purposes of enforcement and dismissed the appeal as settled. Id. 

¶4 On August 20, 2015, the appellant wrote to the administrative judge 

regarding an email containing a 57-page attachment sent from the agency 

representative to her former attorney, which her former attorney forwarded to her 

on May 18, 2015.

2 Horn-Cruder v. Department of Health & Human Services, 

 

2 Based on emails later submitted by the appellant, it appears that the document sent to 

her attorney and forwarded to her on May 18, 2015, was a copy of the parties’ joint 

motion to dismiss the first petition for enforcement as settled. Horn-Cruder v. 

Department of Health & Human Services, MSPB Docket No. DC-0752-14-0795-C-2, 

Compliance File (C-2 CF), Tab 1 at 5, Tab 8 at 1-2; CF, Tab 9. However, it appears 
4

MSPB Docket No. DC-0752-14-0795-C-2, Compliance File (C-2 CF), Tab 1 at 5. 

She asserted that she was concerned and frightened for her safety and asked the 

Board to “please provide me guidance on whether I should retain a lawyer or 

provide me with other options.” Id. at 5-6. She also resubmitted her original 

response to the notice of proposed removal and her 57-page first petition for 

enforcement. Id. at 1-4, 10-66. The administrative judge docketed the 

submission as a second petition for enforcement and ordered the agency to 

respond showing compliance. C-2 CF, Tab 2. The agency responded that, while 

the basis of the appellant’s petition for enforcement was unclear, the agency had 

fully complied with the May 15, 2015 settlement agreement resolving the 

appellant’s first petition for enforcement by paying the agreed-upon attorney fees 

and by sending the agreed‐upon letter to the appellant’s representative on 

May 26, 2015. C-2 CF, Tab 3 at 5-7, 9, 11. In response, the appellant reiterated 

her concerns about her safety and stated that the 57-page document was the basis 

of her petition for enforcement. C-2 CF, Tab 9. In a November 5, 2015 

compliance initial decision, the administrative judge found the agenc y in 

compliance with the settlement agreement and denied the appellant’s second 

petition for enforcement. C-2 CF, Tab 13.

¶5 On May 6, 2016, the appellant wrote to the administrative judge again, 

asserting that she wanted to renegotiate the settlement agreement because the 

agency representative has treated her unfairly, violated her due process rights,

“failed to see [her] as a human being,” and has been trying to “block [her] from 

retaining an attorney.” Horn-Cruder v. Department of Health & Human Services,

MSPB Docket No. DC-0752-14-0795-C-3, Compliance File (C-3 CF), Tab 1 

at 1-2. She also asked to be reinstated to her former position. Id. The 

administrative judge docketed the submission as a third petition for enforcement 

 

that the 57-page document she is referring to, which she submitted in full with her 

second petition for enforcement, is the first petition for enforcement submitted by her 

attorney representative. Compare CF, Tab 1, with C-2 CF, Tab 1 at 10-66.
5

and ordered the agency to submit evidence showing that it complied with the 

settlement agreement. C-3 CF, Tab 2. The agency responded in opposition to the 

appellant’s petition for enforcement, arguing that it should be dismissed for 

failure to identify any breach of the most recent settlement agreement and as 

barred by the doctrine of res judicata. C-3 CF, Tab 4. In response, the appellant 

complained that she is trying to get information regarding the 57-page document 

sent to her former attorney by the agency representative and that she wants the 

agency “to be held accountable and responsible for their negative actions against 

[her].” C-3 CF, Tab 5 at 2. In a June 21, 2016 compliance initial decision, the 

administrative judge dismissed the appellant’s third petition for enforcement as 

barred by the doctrine of res judicata. C-3 CF, Tab 6, Compliance Initial 

Decision (C-3 CID). The administrative judge noted that, during a telephonic 

status conference, the appellant indicated that she wanted a new settlement 

agreement because the agency had engaged in bad faith. C-3 CID at 3-4. The 

administrative judge explained, however, that challenges to the validity of a 

settlement agreement that has been entered into the Board’s record in a previous 

appeal must be raised in a petition for review of the decision accepting the 

agreement into the record, not through a collateral attack on the agreement in a 

new appeal. C-3 CID at 4. 

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

decision. Compliance Petition for Review (CPFR) File, Tab 4. On review, she 

states again that she wants a new settlement agreement and that the original 

settlement agreement should not be enforced and argues that the agency and the 

agency representative “engaged in bad faith” and presented “several erroneous 

materials” during the settlement negotiations that were “false and misleading.” 

Id. at 6. She further reiterates her contentions about the NIH campus ban 

previously in place, challenges the merits of the agency’s removal action, and 

asserts that the agency retaliated against her for filing an equal employment 

opportunity complaint by denying her a promotion. Id. at 6-10. The appellant 
6

asks to be reinstated to her former position and for back pay because she was 

“[f]alsely [a]ccused and [w]rongly [t]erminated.” Id. at 11. The agency has

responded in opposition to the appellant’s petition for review, and the appellant

has replied to the agency’s response. CPFR File, Tabs 8-9.

¶7 Under the doctrine of res judicata, a valid, final judgment on the merits of 

an action bars a second action involving the same parties or their privies based on 

the same cause of action. Encarnado v. Office of Personnel Management, 

116 M.S.P.R. 301, ¶ 10 (2011); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 

337 (1995). Res judicata precludes parties from relitigating issues that were, or 

could have been, raised in the prior action, and is applicable if: (1) the prior 

judgment was rendered by a forum with competent jurisdiction; (2) the prior 

judgment was a final judgment on the merits; and (3) the same cause of action 

and the same parties or their privies were involved in both cases. Encarnado, 

116 M.S.P.R. 301, ¶ 10; Peartree, 66 M.S.P.R. at 337. 

¶8 In the third compliance initial decision, the administrative judge found that 

there was no dispute that the appellant’s first and second petitions for 

enforcement were within the Board’s jurisdiction, that they both resulted in a 

final judgment on the merits, that the same parties were involved in each of the 

appellant’s petitions, and that this petition for enforcement involves the same 

claims that the appellant raised in her previous petitions for enforcement. ID at 3. 

Further, she found that the appellant has not alleged a new basis for a breach of 

the settlement agreement by the agency or any new claims, facts, or evidence of a 

breach and that she merely seeks to relitigate the same claims she raised in her 

prior petitions for enforcement in hopes of obtaining a new outcome. Id. Thus, 

the administrative judge concluded that the appellant’s third petition for 

enforcement was barred under the doctrine of res judicata.

¶9 On review, the appellant has not identified any error in the administrative 

judge’s determination that her challenge to the prior settlement agreements is 

barred by res judicata. CPFR File, Tabs 4, 9. Having carefully reviewed the 
7

appellant’s prior petitions for enforcement and the resulting compliance initial 

decisions, we agree with the administrative judge’s determination that this 

petition for enforcement, insofar as it alleges breach of the first or second 

settlement agreement, is barred by res judicata. See Encarnado, 116 M.S.P.R. 

301, ¶ 10; Peartree, 66 M.S.P.R. at 337. 

¶10 As the administrative judge correctly explained, the appellant’s challenges 

to the validity of either settlement agreement must be raised as a petition for 

review of the initial decision dismissing the appeal resolved by that settlement 

agreement as settled.3 Weldon v. Department of Veterans Affairs, 119 M.S.P.R. 

478, ¶ 5 (2013); Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, 

¶ 8 (2009). Accordingly, we find that the appellant’s challenges to the validity of 

the settlement agreements are not properly before the Board in this compliance 

appeal. 

¶11 Lastly, the appellant’s challenges to the original removal action are likewise 

not properly before the Board. Once a settlement agreement is entered into the 

Board’s record, the original appealable action is withdrawn or dismissed. King v. 

Reid, 59 F.3d 1215, 1218 (Fed. Cir. 1995). Accordingly, the Board lacks 

jurisdiction to hear the appellant’s claims regarding the merits of her removal, as 

well as her allegations of discrimination in connection with a petition for 

enforcement of a settlement agreement. See id.; Walker-King v. Department of 

Veterans Affairs, 119 M.S.P.R. 414, ¶ 15 (2013) (stating that the Board lacks 

jurisdiction to hear pendent discrimination claims in connection with a petition 

for enforcement of a settlement agreement).

 

3 We make no finding regarding the timeliness of any petition for review the appellant 

may elect to file.
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law and other sections of the United States 

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
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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