UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

WILLIAM B. WILEY, Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT, Agency

. DOCKET NUMBER SF

- 0831

- 09

- 0055

- M

- 3

DATE: September 24, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peter B. Broida , Esquire, Arlington, Virginia, for the appellant. Christopher H. Ziebarth , Washington, D.C., for the agency.

BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER
¶1 The U.S. Court of Appeals for the Federal Circuit remanded the referenced matter to the Board for the entry of a settlement agreement into the record.

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

MSPB Docket No. SF

- 0831

- 09

- 0055

- M

- 3, Court Remand File ( CRF

- 2) , Tab 3 ; Wiley v. Office of Personnel Management , No. 2012

- 3140 (Fed. Cir. Dec. 11, 2013). For the reasons set forth below, we REOPEN and VACATE the Board’s final decision in this matter and dismiss the petition for review as settled. See MSPB Docket No. SF

- 0831

- 09

- 0055

- M

- 2 , Petition for Rev iew File , Tab 5 , Final Order (Mar. 29, 2012)

. 2 ¶2 After the appellant filed an appeal of t he Board’s final order with the Federal Circuit , the parties executed a settlement agreement signed and dated on July 31, 2013. CRF

- 2, Tab 2

. The Court then granted the parties’ joint motion to remand the case to the Board for the purpose of vacating the Board’s final decision and entering t he settlement agreement into the record for enforcement. CRF

- 2, Tab 3

. ¶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 to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Pos tal 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 wan t the Board to enforce those terms. See C RF

- 2, Tab 2, ¶ 6

. 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 ent ered 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 th e subject matter of this appeal

— an appeal pertaining to

2 The record reflects that Mary Wiley Scully has notified the Board that she no longer wishes to participate in this appeal as an Intervenor. See C R F

- 2, Tabs 4, 6.3

reti rement annuity benefits

— i s within the Board’s jurisdiction under 5 U.S.C. § 831.110 and 5 C.F.R. § 831.110

. Accordingly, we vacate the final decision in this matter and find that dismi ssal of the petition for review “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these cir cumstances, and we accept the settlement agreement into the record for enforcement purposes. ¶4 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 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 promptly filing a petition for enforcement with the office that issued the initial decision on this a ppeal. 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 TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request the United States Court of A ppeals for the Federal Circuit to review this final decision. 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 y our request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case, and4
your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. 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 d ismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appe al 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 ). You may read this la w, as well as review the Board’s regulations and other related material, at our website, http://www.mspb.gov. 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 attorneys who have expressed interest in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Systems Protection Boar d 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