UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

BARRY ALAN COHEN,

Appellant,

v.
DEPARTMENT OF THE NA VY,

Agency. DOCKET NUMBER DC

- 315H

- 18

- 0100

- I

- 1

DATE: March 22, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Barry Alan Cohen , Sneads Ferry, North Carolina, pro se.

Justin P. Sacks , Falls Church, Virginia, for the agency.

BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member

FINAL ORDER ¶1 The appellant has petitioned for review of the December 7, 2017 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal File, Tab 12, Initial Decision

. For the reasons set forth below, we DISMISS the appeal as settled.

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

¶2 Afte r the filing of the petition for review, the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on February 6, 2018, and by the agency on Feb r uary 7, 2018

. PFR File, Tab 6

at 8

- 9

. The document provides, among o ther things, that the appellant agreed to
withdraw the above

- captioned appeal in exchange for the promises made by the

agency. Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreem ent, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Po stal 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 determin e whether the agreement is lawful on its face and whether the parties 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 ). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and do not intend for the agreement to be entered into the
record for enforceme nt by the Board. PFR File, Tab 6 . As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the additional considerations regarding enforcement, and we do not enter the settlement agreement into the record for enforcement by the Board. ¶5 In light of the foregoing , we find that dismissing the appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropr iate
under these circumstances.3

¶6 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulatio ns, section 1 201.113 ( 5 C.F.R. § 1201.113 ).

NOTICE OF APPEAL RIG HTS 2 You may obtain review of this final decision. 5 U.S.C. § 770 3 (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 follow ing 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 wh ich 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 applicab le time limit may result in the dismissal of y our 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
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum 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)

.

2 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.4

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 c ourt at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additi onal 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 Practi ce, 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 regardin g 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 r epresentation 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 discriminat ion. 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 y our representative receives this decision. If the action involves a claim of5

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 info rmation for U.S. district courts can be found at their respective websites, which can be ac cessed 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 an y 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 rep resentative 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. mai l, the
address of the EEOC is: Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 20013 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: Off ice 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 hav e raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or6

other protected activities listed in 5 U.S.C. § 230 2 (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. 3 The court of appeals must receive your petiti on 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 c ourt 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 availab le 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 Practic e, 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

3 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 co urt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510

.7

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 c ase. Contact information for the courts of appeals can be found at their respective websites, which can be ac cessed 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