UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

VALORIE J. MACY,

Appellant,

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

- 1221

- 17

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- 1

DATE: September 27, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Valorie J. Macy , Granby, Massachusetts, pro se.

Helen E. Moore , Esquire, Boston, Massachusetts, for the agency. Larry Zieff, Esq uire , Williston, Vermont, for the agency.

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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

FINAL ORDER ¶1 The appellant has petitioned for review of the initial decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled. ¶2 After the filing of the petition for review, the agency submitted a motion to dismiss the appeal on the basis of a settlement agreement entered into by the parties, effective August 26, 2021. PFR File, Tab 5. The settlement agreement provides, in pertinent part
, that the appellant would withdraw with p rejudice her pending appeal in this case and in t hree other cases: the joined appeals in Macy v. Department of Homeland Security , MSPB Docket N o. PH

- 1221

- 21

- 0229

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- 1 , and Macy v. Department of Homeland Security , MSPB Docket No. PH

- 752S

- 21

- 0211

- I

- 1, and sep arately, Macy v. Department of Homeland Security , MSPB
Docket N o. PH

- 1221

- 18

- 0335

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- 1

. Id

. at 4

- 5 . The settlement agreement required that the appellant move to dismiss or withdraw these cases within
7 business days of the effective date of the settlement , i.e., by September 8,
2021. Id. ¶3 The agency’s motion to dismiss noted that although the appellant filed a motion to dismiss her pending appeal in MSPB Docket N o. PH

- 1221

- 21

- 0229

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- 1, 2 she did not move to withdraw the instant case or MSPB Docket
N o. PH

- 1 221

- 18

- 0335

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- 1 as required by the agreement . The agency further
stated that when it reminded the appellant to file the motions required in these cases, she refused to do so until the agency had paid her the amount agreed upon in the settlement agreement (although the requirement that she file the motions was not dependent on the agency’s payment)

. Finally, the agency stated that

2 The administrative judge accepted the settlement agreement into the record and dismissed th is appeal and MSPB Docket N o. PH

- 752S

- 21

- 0211

- I

- 1 with prejudice on September 2, 2021. Macy v. Department of Homeland Security , MSPB Docket N o. PH

- 1221

- 21

- 0229

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- 1, Tab 58 , Initial Decision ; Macy v. Department of Homeland Security , MSPB Docket N o. PH

- 752S

- 21

- 0211

- I

- 1, Tab 30, Initial Decision.3

when the appellant still had not filed the required motions even after payment had been made, the agency filed the motions and the settlement agreement in lieu of the appellant. Id. at 12

- 13. ¶4 The appellant did not respond to the agency’s motion to dismiss. However, on November 17, 2021, she filed a motion to withdraw her appeal pursuant to the settlement agreement. PFR File, T ab 6. ¶5 Before dismissing 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.
146 , 149 (1988). 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 and whether the parties have 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)

. ¶6 Here, we find that the parties have, in fact, ent ered int o a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Bo a rd. 3 PFR File, Tab 5 , at 6

. In addition, we find that the agreement is lawful on its face and that the parties freely ent ered
into it. Id

. ¶7 Accordingly, we find that dismissing the 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

3 We dismiss the appeal pursuant to the settlement agreement even though the appellant filed her withdrawal beyond the deadline specified in the agreement.4

en forcement purposes. This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
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 petition 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 include the dates and result s of any communications between the parties. 5 C.F.R. § 1201.182 (a).

NOTICE OF APPEAL RIG HTS 4 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 represent 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. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

4 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

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 que stions about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must f ile 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. § 7 703 (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. Washin gton, D.C. 20439 Additional information about 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

co ntained 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/probo no 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 applies to you only if you have claimed that you6

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 disposition 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 you
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 onl y, 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). If 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 to the EEOC by regular U.S. mail, the
address of the EEOC is:7

Office of Federal Operations Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 20013 If y ou submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission

131 M Street, N.E. Suite 5SW12G Washington, D.C. 2 0507
(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 petit ion for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel p ractice described in
section 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 jurisdiction. 5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(B).

5 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, 2018, permanently allows appellants to file petitions for judici al 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 All Circuit Review Act is retroactive to November 26, 2017. Pu b. L. No. 115

- 195, 132 Stat. 1510.8

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 addre ss: 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 available at the court’s website, www.cafc.uscourts.gov. Of particula r 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 Ap peals 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 pro vided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts 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