UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

STANLEY HAYES,

Appellant,

v.
DEPARTMENT OF THE IN TERIOR,

Agency. DOCKET NUMBER SF

- 0752

- 18

- 0002

- I

- 1

DATE: February 3, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

t he agency submitted the agreement into the record. IAF, Tab 20. The same day,
the administrativ e 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. O n March 19, 2018 , t he Western Regional Office
served the order on the agency electronically and on the appellant and his representative by mail. I d. at 3. It is undisputed that n either 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

pr esumptively 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 T he 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). I f the parties ent er 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 jurisdicti on 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 indi cation as to the appellant’s position concerning its entry . IAF, Tab 20. ¶7 As for the supplemental information that the appellant provides on review,

g enerally, 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 reco rd was closed de spite 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 th at it is based on new and material evidence not previou sly available despite the party’ s due diligence)

. T he appellant’s inability to supplement the record before the deadline was attributable to the unreasonably short period of time

— 3 days

— he was given t o receive and prepare a response to the March 19, 2018 O rder

. IAF, Tab 21; s ee 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 not4

grant a petition for review based on ne w 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 T he appellant provides a two

- pa ge request for reconsideration that he filed
with the Western R egional O ffice 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 submit s a March 23, 2018 emai l from the agency evidencing its concurrence with the appellant’s position.
PFR File, Tab 1 at 8. Similarly, i n its response, the agency avers that the parties
inten ded for the Board to retain jurisdiction over the settlement agree ment

. PFR File, Tab 3 at 4

. Therefore, w e 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). W e reverse the administrative judge’s finding otherwise and enter the settlement agreemen t 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

. I n any event, the issue of compliance is not pro perly 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 wa s 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 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 prompt ly 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 ou t, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a).

NOTICE OF APPEAL RIG HTS 3 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 bel ow 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 filin g 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 yo ur 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 Circ uit 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 Peti tioners 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 attor ney 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 su ch action was based, in whole or in part, on unlawful discrimination. If so, you may obtain7

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 t han 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

- appoin ted 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 throu gh 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 receiv e 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 Wash ington, D.C. 200138

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 5S W12G 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 cha llenge 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 f or the Federal Circuit

4 The origi nal 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, permane ntly 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 “Gu ide 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