UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STANLEY HAYES,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-18-0002-I-1

DATE: February 3, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Brook L. Beesley, Alameda, California, for the appellant.

Scott Hulbert and Dusty Parson, Boise, Idaho, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his appeal as settled. For the reasons discussed below, we GRANT the 

appellant’s petition for review, REVERSE the administrative judge’s finding that 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 parties did not intend for the settlement agreement to be entered into the 

record for enforcement purposes, and AFFIRM the dismissal of the appeal as 

settled.

BACKGROUND

¶2 The appellant filed a Board appeal, which the parties resolved by settlement 

agreement. Initial Appeal File (IAF), Tab 1, Tab 20 at 5-9. On March 19, 2018, 

the agency submitted the agreement into the record. IAF, Tab 20. The same day, 

the administrative judge issued an order, in which she notified the parties that she 

would not enter the agreement into the record for enforcement purposes unless the 

parties notified her, by March 22, 2018, of their intent that it be entered for that 

purpose. IAF, Tab 21 at 1-2. On March 19, 2018, the Western Regional Office

served the order on the agency electronically and on the appellant and his 

representative by mail. Id. at 3. It is undisputed that neither party submitted a 

timely response.

¶3 On March 23, 2018, the administrative judge issued an initial decision

dismissing the appeal as settled. IAF, Tab 22, Initial Decision (ID) at 1-2. She 

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

into it, but was silent as to whether the parties intended for the Board to retain

jurisdiction for enforcement purposes. Id.

¶4 The appellant has filed a timely petition for review. Petition for Review 

(PFR) File, Tab 1. The agency has submitted a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant challenges the administrative judge’s decision not 

to enter the agreement into the record for enforcement purposes. PFR File, Tab 1 

at 1-4. He argues that the agency’s entering of the agreement into the record

presumptively established that the parties intended for the Board to retain 

jurisdiction to enforce the agreement, and that the additional documentation he 

submits on review further proves that was the parties’ intent. Id.
3

¶6 The Board retains jurisdiction to enforce a settlement agreement if it has 

been entered into the record for that purpose. Delorme v. Department of the 

Interior, 124 M.S.P.R. 123, ¶¶ 16, 21 (2017). If the parties enter an agreement 

into the record and it is approved by the administrative judge, it will be 

enforceable by the Board unless the parties clearly specify that they do not want 

Board enforcement. Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107-08 

(1997); see 5 C.F.R. § 1201.41(c)(2)(i) (providing that a settlement agreement 

will be made a part of the record, and the Board will retain jurisdiction to ensure 

compliance therewith, if the parties offer it for inclusion into the record and the 

judge approves it). Although the agency offered the settlement agreement into 

the record, there was no indication as to the appellant’s position concerning its 

entry. IAF, Tab 20.

¶7 As for the supplemental information that the appellant provides on review, 

generally, under 5 C.F.R. § 1201.115, the Board will not consider evidence 

submitted for the first time with the petition for review absent a showing that it 

was unavailable before the record was closed despite the party’s due diligence. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board 

will not consider an argument raised for the first time in a petition for review 

absent a showing that it is based on new and material evidence not previously 

available despite the party’s due diligence). The appellant’s inability to 

supplement the record before the deadline was attributable to the unreasonably 

short period of time—3 days—he was given to receive and prepare a response to 

the March 19, 2018 Order. IAF, Tab 21; see Lagreca v. U.S. Postal Service, 

114 M.S.P.R. 162, ¶ 6 (2010) (observing that the Board presumes a 5-day mailing 

time). He acted promptly after receiving the order to obtain and submit

additional information, which, for the reasons explained below, affects the 

outcome of the appeal. PFR File, Tab 1 at 5-7; see Russo v. Department of 

Veterans Affairs, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not 
4

grant a petition for review based on new evidence absent a showing that it is of 

sufficient weight to warrant an outcome different from that of the initial 

decision). Accordingly, we consider the appellant’s additional arguments and 

evidence submitted on review.

¶8 The appellant provides a two-page request for reconsideration that he filed 

with the Western Regional Office on March 23, 2018, explaining that the parties 

jointly intended for the agreement to be entered into the record for enforcement 

purposes. PFR File, Tab 1 at 5-7. He also submits a March 23, 2018 email from 

the agency evidencing its concurrence with the appellant’s position. 

PFR File, Tab 1 at 8. Similarly, in its response, the agency avers that the parties 

intended for the Board to retain jurisdiction over the settlement agreement. 

PFR File, Tab 3 at 4. Therefore, we find that, when considering the parties’ 

submission on review, the record reflects that they intended for the Board to 

retain jurisdiction over the settlement agreement. See Hester v. U.S. Postal 

Service, 72 M.S.P.R. 149, 151-52 (1996) (relying on the statements of the parties, 

as reflected in the administrative judge’s recorded notes, to determine whether 

they intended for the settlement agreement to be entered into the record for 

enforcement purposes when the agreement was silent on that issue). We reverse 

the administrative judge’s finding otherwise and enter the settlement agreement 

into the record for enforcement purposes.

2

 

2 On review, the agency argues that the appellant’s petition for review is moot because 

it was in compliance with the settlement agreement. PFR File, Tab 3 at 3-4. While a

party’s compliance with the settlement agreement may render a petition for enforcement 

moot, Gingery v. Department of Veterans Affairs, 117 M.S.P.R. 354, ¶ 18, 

aff’d, 480 F. App’x 588 (Fed. Cir. 2012), the appellant has not filed a petition for 

enforcement, PFR File, Tab 1. In any event, the issue of compliance is not properly 

before the Board. See Niday v. Department of the Army, 42 M.S.P.R. 673, 679 (1990)

(dismissing a petition for enforcement as premature because the initial decision 

dismissing the appeal as settled was not final). If either party wishes to file a petition 

for enforcement, it may do so with the Western Regional Office. See 5 C.F.R.

§ 1201.182(a).
5

NOTICE TO THE PARTIES 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 results of any 

communications between the parties. 5 C.F.R. § 1201.182(a). 

NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

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 questions 

 

3

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.
6

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 file 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. 

§ 7703(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. 

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 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, 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/probono 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 you 

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 
7

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 only, 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: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 
8

If you 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. 20507 

(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 petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice 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. 4 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

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 address: 

U.S. Court of Appeals 

for the Federal Circuit 

 

4

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 judicial 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. Pub. L. No. 115-195, 

132 Stat. 1510. 
9

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 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, 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/probono 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 warr ants 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