UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PENNY J. SEWARD,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-0752-17-0332-I-1

DATE: June 21, 2023

THIS ORDER IS NONPRECEDENTIAL1

Penny J. Seward, Conway, Arkansas, pro se.

Thomas Kent Smith, Esquire, North Little Rock, Arkansas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

dismissed her appeal for lack of jurisdiction. 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 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of 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). For 

the reasons discussed below, we DENY the petition for review, VACATE the 

initial decision, and REMAND the case to the regional office for further 

adjudication in accordance with this Remand Order. 

BACKGROUND

¶2 The record reflects that the agency proposed the appellant’s removal on 

March 6, 2014, and subsequently issued a decision letter on May 30, 2014, 

removing her. Initial Appeal File (IAF), Tab 6 at 86-88, Tab 15 at 4-9. The 

parties entered into a last chance agreement (LCA) on June 2, 2014. IAF, Tab 6 

at 89-90. Under the provisions of the agreement, the agency held the removal in 

abeyance for a period of 3 years. Id. In return, the appellant agreed to accept a 

voluntary downgrade from Human Resources Specialist, GS-11, Step 7, to 

Program Specialist GS-9, Step 10, and “to abide by all Medical Center 

Memorandums, policies, VA rules and regulations regarding conduct and 

behavior.” Id. at 89. The appellant agreed to waive her right to appeal any 

removal, should she be removed during the period of the agreement. Id. The 

LCA specifically included a waiver of her right to appeal the removal to the 

Board. Id. On October 28, 2015, the agency notified the appellant that she had 

not complied with the LCA and that she would be removed effective November 2,

2015. Id. at 47-48. The appellant resigned from her position effective 

October 30, 2015, three days before the effective date of the removal action. 
3

Seward v. Department of Veterans Affairs, MSPB Docket No. DA-3443-17-0176-

I-1, Initial Appeal File (0176 IAF), Tab 9 at 47.

¶3 The appellant filed a formal equal employment opportunity complaint on 

November 5, 2015, alleging that her resignation was involuntary. IAF, Tab 6 

at 20-45. The agency’s Office of Employment Discrimination Complaint 

Adjudication issued a final agency decision on January 19, 2017. Id. The 

appellant then filed a timely Board appeal based on her allegedly involuntary 

resignation. 0176 IAF, Tab 1. On May 3, 2017, the parties entered into a 

settlement agreement of that Board appeal, which resulted in the rescission of the 

appellant’s resignation and the reinstatement of her removal, and she was 

removed effective November 2, 2015. IAF, Tab 1 at 7-9. 

¶4 On May 25, 2017, the appellant filed an appeal of her November 2, 2015

removal. IAF, Tab 1.2 After holding a jurisdictional hearing, the administrative 

judge issued an initial decision that dismissed the appeal for lack of jurisdiction,

finding that the agency did not breach the LCA and that the appellant had waived 

her Board appeal rights in the June 2, 2014 LCA. IAF, Tab 17, Initial Decision 

(ID) at 14-15. 

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response to the petition for review. PFR File, 

Tab 2.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Although not raised by either party, we find that a question exists regarding 

the administrative judge’s determination that the Board does not have jurisdiction 

over the appellant’s removal appeal. See Martin v. Office of Personnel 

 

2

The administrative judge addressed the timeliness of this appeal and found that the 

appellant acted diligently in pursuing her rights under the particular circumstances in 

this case, and thus, she found good cause for the appellant’s delay in filing this appeal. 

ID at 4 n.1. We find no basis upon which to disturb the administrative judge’s 

timeliness determination. 
4

Management, 77 M.S.P.R. 298, 300 (1998) (holding that the Board may raise the 

matter of its own jurisdiction sua sponte); Morgan v. Department of the Navy, 

28 M.S.P.R. 477, 478 (1985) (holding that the issue of jurisdiction may be raised 

at any time during a proceeding). Specifically, we find that in determining that 

the Board lacks jurisdiction over the appellant’s removal action, the 

administrative judge did not fully consider the May 3, 2017 settlement agreement 

or its terms. 

¶7 The Board has broad authority to enforce the terms of a settlement 

agreement entered into the record. LaMontagne v. U.S. Postal Service, 

91 M.S.P.R. 304, ¶ 6 (2002). Because a settlement agreement is a contract, the 

terms of a settlement agreement should be interpreted as a question of contract 

law. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed. Cir. 1988). In 

construing the terms of a settlement agreement, the words of the agreement itself 

are of paramount importance. Id. The Board lacks authority to add terms to an 

agreement that were not agreed upon by both parties. Murphy v. U.S. Postal 

Service, 54 M.S.P.R. 202, 205 (1992).

¶8 Here, the May 3, 2017 agreement explicitly provides that the appellant 

“retains the right to file a Board appeal regarding the removal actio n described in

paragraph 2a.” IAF, Tab 1 at 7. Paragraph 2a states that the agency agrees to 

“[r]emove from the Appellant’s electronic Official Personnel File (eOPF) the 

Notification of Personnel Action dated October 30, 2015, with the nature of 

action, ‘RESIGN-IN LIEU OF INVOL ACTION’ and replace it with a 

Notification of Personnel Action dated November 2, 2015, with a nature of 

action, ‘REMOVAL.’” Id. Thus, the agreement explicitly provides that the 

appellant retains her right to file a Board appeal of the November 2, 2015 

removal action. The terms of the settlement agreement further provide that the 

agreement “constitutes the entire and complete understanding between the parties. 

There are no other terms or commitments, either oral or written, to this 

Agreement except those specified herein.” Id. at 8. 
5

¶9 In this case, even though there was an earlier LCA dated June 2, 2014, in 

which the appellant waived her Board appeal rights over her removal action, this 

new agreement does not include a waiver provision. Rather, it specifically 

provides the appellant with Board appeal rights over the removal action dated 

November 2, 2015. Id. at 8. Moreover, the May 3, 2017 settlement agreement 

omits any reference to the June 2, 2014 LCA. Accordingly, we find that the 

May 3, 2017 settlement agreement supersedes the June 2, 2014 LCA, see Alvarez 

v. Office of Personnel Management, 60 M.S.P.R. 436, 439-40 (1994), and that the 

provisions of the May 3, 2017 settlement agreement explicitly provide the 

appellant with “the right to file a Board appeal” regarding the November 2, 2015 

removal action. Thus, we find that the administrative judge erred in dismissing 

this appeal for lack of jurisdiction based on the terms of the LCA. Accordingly, 

we remand this appeal to the Dallas Regional Office for further adjudication of 

the agency’s removal action. 

ORDER

¶10 For the reasons discussed above, we remand this case to the Board’s Dallas 

Regional Office for further adjudication in accordance with this Remand Order. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board