UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEROY ALFORD,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBERS

DC-0752-08-0070-A-5

DC-0432-09-0770-A-2

DATE: January 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

John J. Rigby, Esquire, Arlington, Virginia, for the appellant.

Robert H. Schapler, Esquire, and William Christopher Horrigan, 

Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has petitioned for review of two initial decisions granting the 

appellant’s motions for attorney fees originating from two separate petitions for 

appeal. See Alford v. Department of Defense, MSPB Docket No. DC-0752-09-

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

0770-A-2 (A-2), Initial Decision (June 6, 2013); A-2, Petition for Review (PFR) 

File, Tab 1; Alford v. Department of Defense, MSPB Docket No. DC-0752-08-

0070-A-5 (A-5), Initial Decision (June 18, 2013); A-5, PFR File, Tab 1. For the 

reasons set forth below, we VACATE the initial decisions and DISMISS the 

motions for attorney fees as settled.

¶2 After the agency filed the referenced petitions for review, the parties 

submitted a document entitled “VOLUNTARY STIPULATION OF 

SETTLEMENT AND AGREED ORDER OF DISMISSAL” executed by the 

parties on July 16, 2013. A-5, PFR File, Tab 3. The document provides, among 

other things, for the appellant to “[w]ithdraw with prejudice all cases Appellant 

has outstanding with the Merit Systems Protection Board . . . .” Id., ¶ 3(b). 2

¶3 Before dismissing a matter as settled, the Board must decide whether the 

parties have entered into a settlement agreement, understand its terms, and intend 

 2 We note that the parties disagree over interpretation of the withdrawal provision in 

this global settlement agreement. A-5, PFR File, Tabs 1-2, 5-10. In our view, the plain 

meaning of the language in this agreement requires the appellant, and not the agency, to 

withdraw all pending matters before the Board. A-5, PFR File, Tab 3, ¶ 3(b). At the 

time the settlement agreement was executed, the appellant’s attorney fee motions were 

in dispute through the agency’s filing of petitions for review of these decisions and the 

Board had not issued a final decision on these petitions. Thus, the appellant’s attorney 

fee motions were still pending. To the extent that the parties believe there remains 

noncompliance with terms in this settlement agreement, they may exercise the right to 

address those matters in a petition for enforcement or as a separate petition for review 

requesting vacature of the underlying settlement agreement based on fraud, 

misrepresentation or mutual mistake. See 5 C.F.R. § 1201.183. We note, moreover, 

that the parties elected not to include unequivocal language in the settlement agreement 

specifically stating whether they wanted the Board to vacate the initial decisions and 

dismiss the motions for attorney fees as settled or, as the appellant urges, to only 

dismiss the petitions for review. See A-5, PFR File, Tabs 1, 7. In the absence of 

clearly stated language in the settlement agreement, the Board will interpret a disputed 

provision first according to the plain meaning of the words set out. Knight v. 

Department of the Treasury, 113 MSPR 548, 554 (2010). In construing the terms of a 

settlement agreement, the words of the agreement itself are of paramount importance 

and must be read as part of an organic whole, according reasonable meaning to all of 

the contract terms to identify and give weight to the spirit or essence of the contract as 

intended by the parties. Id.
3

to have the agreement entered into the record for enforcement by the Board. See

Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 149 (1988). We find here that 

the parties have, in fact, entered into a settlement agreement, that they understand 

the terms, and that they want the Board to enforce those terms. See MSPB 

Docket No. DC-0432-13-0390-I-1, Initial Appeal File, Tab 52 (Hearing Compact 

Disc).

¶4 In addition, before accepting a settlement agreement into the record for 

enforcement purposes, the Board must determine whether the agreement is lawful 

on its face, whether the parties freely entered into it, and whether the subject 

matter of this appeal is within the Board’s jurisdiction, that is, whether a law, 

rule, or regulation grants the Board the authority to decide such a matter. See

Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107 (1997). We find here that 

the agreement is lawful on its face, that the parties freely entered into it, and that 

the subject matter of this appeal—the performance based removal of a full time 

employee in the federal service—is within the Board’s jurisdiction under 5 U.S.C. 

§§ 4303 and 7701. See MSPB Docket No. DC-0752-09-0770-I-4, Initial Appeal 

File, Tab 3, Subtab 4(b). Accordingly, we find that dismissal of the motions for 

attorney fees “with prejudice to refiling” (i.e., the parties normally may not refile 

this appeal) and vacating the initial decisions under which they are based is

appropriate under these circumstances, and we accept the settlement agreement 

into the record for enforcement purposes. 

¶5 This is the final order of the Merit Systems Protection Board in this appeal. 

Title 5 of the Code of Federal Regulation, section 1201.113 (5 C.F.R. § 1201.113)

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 
4

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 TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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 statutory 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 as well as 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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 
5

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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.

______________________________

William D. Spencer

Clerk of the Board