UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CECILIA CATHERINE GUTIERREZ,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-15-0434-C-1

DATE: January 4, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Cecilia Catherine Gutierrez, Dearborn Heights, Michigan, pro se.

Daniel Fevrin, Norfolk, Virginia, 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 denied her petition for enforcement. Generally, we grant 

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

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

erroneous interpretation of statute or regulation or the erroneous application of 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 affected 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 compliance initial decision, which is now the Board’s final decision. 

5 C.F.R. § 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 Effective January 30, 2015, the agency removed the appellant from her 

position as an Ordinary Seaman for failure to maintain a regular work schedule. 

Gutierrez v. Department of the Navy, MSPB Docket No. DC-0752-15-0434-I-1, 

Initial Appeal File (IAF), Tab 1 at 7-8. On February 19, 2015, the appellant 

appealed her removal to the Board. IAF, Tab 1. The parties subsequently entered 

into a settlement agreement in which the agency agreed to replace the Standard 

Form 50 (SF-50) documenting the appellant’s removal with a revised SF-50 

stating in the remarks section that the appellant was removed for “inability to 

maintain a regular work schedule due to a medical condition.” IAF, Tab 23 

at 5-6. In return, the appellant agreed that she would withdraw with prejudice her 

Board appeal and any pending equal employment opportunity complaints and that 

she would not initiate any new claims against the agency relating to her removal 

or based on matters occurring prior to the execution of the settlement agreement. 

Id. at 6. In a December 31, 2015 initial decision, the administrative judge

determined that the appeal was within the Board’s jurisdiction, that the settlement

agreement was lawful on its face, and that the parties understood its terms and 
3

freely and voluntarily entered into it. IAF, Tab 24, Initial Decision (ID) at 1. 

Accordingly, she accepted the settlement agreement into the record for 

enforcement purposes and dismissed the appeal as settled. Id. The initial 

decision became final on February 4, 2016. ID at 2.

¶3 On February 20, 2016, the appellant filed a pleading titled “Supplement to 

PFR” asserting that the agency had not complied with the settlement agreement 

because she had not yet received a revised copy of her SF-50. Gutierrez v. 

Department of the Navy, MSPB Docket No. DC-0752-15-0434-C-1, Compliance 

File (CF), Tab 1. The administrative judge docketed the submission as a petition 

for enforcement of the settlement agreement, notified the parties of their 

respective burdens of proof, and ordered them to respond. CF, Tab 2. The 

agency filed a motion to dismiss, stating that the settlement agreement had been 

executed on December 15, 2015, and that the new SF-50 had been provided to the 

appellant on February 18, 2016. CF, Tab 3 at 4. The appellant did not respond to 

the agency’s motion or the administrative judge’s order. On July 6, 2016, the 

administrative judge denied the appellant’s petition for enforcement, finding that 

the agency had complied with the settlement agreement by issuing the appellant a 

corrected SF-50. CF, Tab 5, Compliance Initial Decision (CID) at 1-2. 

¶4 On August 7, 2016, the appellant filed a petition for review of the 

compliance initial decision. Gutierrez v. Department of the Navy, MSPB Docket 

No. DC-0752-15-0434-C-1, Compliance Petition for Review (CPFR) File, Tab 1. 

The agency responded in opposition to the appellant’s petition for review, arguing 

that it is an untimely petition for review of the December 31, 2015 initial decision 

dismissing the appeal as settled and that there is no basis to invalidate the 

settlement agreement. CPFR, Tab 3 at 7-9. The agency also argues that the 

appellant is estopped from challenging the issue of the agency’s compliance with 

the settlement agreement because the agency proved that it had provided the 

appellant with a copy of the revised SF-50, and the administrative judge found the 

agency had complied with the settlement agreement. Id. at 9.
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¶5 As an initial matter, we reject the agency’s arguments that the appellant’s 

petition for review is untimely filed and that she is estopped from challenging the 

compliance initial decision. The appellant’s August 7, 2016 compliance petition 

for review of the July 6, 2016 compliance initial decision was filed before the 

35th day after the issuance of the compliance initial decision and is, therefore, 

timely filed. See 5 C.F.R. § 1201.114 (providing, in part, that a petition for 

review must be filed within 35 days of the issuance of the initial decision). 

Therefore, the appellant’s petition for review of the compliance initial decision is 

properly before the Board, and nothing precludes the appellant from exercising 

her right to file a petition for enforcement of a settlement agreement or from 

petitioning for review of a compliance initial decision. See 5 C.F.R. §§ 1201.114

and 1201.181.

¶6 On review, the appellant appears to argue that the agency still has not 

complied with the settlement agreement because, although it sent her a redacted 

copy of her revised SF-50 by email, she has not received her requested unredacted 

hard copy. CPFR File, Tab 1 at 3. Because it was unclear from the record 

whether the agency had provided the appellant with an unredacted copy of her 

revised SF-50, the Board ordered the agency to submit evidence and argument 

clarifying this issue. CPFR File, Tab 4. The agency submitted two declarations 

signed under penalty of perjury attesting that an unredacted copy of the revised 

SF-50 was sent to the appellant’s address of record on February 26, 2016, and 

that another copy was sent to the address specified in the appellant’s compliance 

petition for review on November 17, 2016. CPFR File, Tab 5 at 7-8. Although 

the appellant was afforded an opportunity to respond to the agency’s response to 

the Board’s order, she did not do so. Because it is undisputed that the agency

revised the appellant’s SF-50 in accordance with the settlement agreement and 

provided her an unredacted copy of the revised SF-50, we find no basis to disturb

the administrative judge’s determination that the agency has complied with the 

settlement agreement. CID at 1-2.
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¶7 The appellant also argues on review that the agency failed to inform her of 

her right to request a reasonable accommodation, which would have allowed her 

to continue in her position, and asks that her medical retirement and workers’ 

compensation claims be approved. CPFR File, Tab 1 at 3. However, these claims

are related to the appellant’s employment with the agency and events that 

occurred prior to the settlement agreement, and thus, are not properly before the 

Board in this compliance matter and provide no basis to disturb the initial 

decision.2

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 sta tutory 

 

2

If the appellant wishes to challenge the validity of the settlement agreement on the 

basis of alleged misinformation, such a claim is properly raised in a petition for review 

of the initial decision that dismissed the appeal pursuant to the settlement agreement, 

not a petition for enforcement. See Hazelton v. Department of Veterans Affairs, 

112 M.S.P.R. 357, ¶ 8 (2009); see also Bruhn v. Department of Agriculture, 

124 M.S.P.R. 1, ¶ 18 (2016) (explaining that a party may challenge the validity of a 

settlement agreement if the party believes that the agreement is unlawful, involuntary, 

or the result of fraud or mutual mistake). We make no finding here, however, about the 

timeliness of any petition for review of the December 31, 2015 initial decision 

dismissing the appellant’s removal appeal as settled. See 5 C.F.R. § 1201.114(d).
6

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 

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