UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JEREMIAH TROMBLY,

Appellant,

v.
DEPARTMENT OF THE AI R FORCE,

Agency. DOCKET NUMBER DA

- 1221

- 14

- 0518

- X

- 1

DATE: March 21, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Cheri L. Cannon , Esquire and Nnenne Agbai
, Esquire, Washington, D.C., for the appellant. Lawrence Lynch , Esquire, Randolph , Texas, for the agency. Kristen Marie Hollering , Esquire, Houston, Texas, for the agency.

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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requir ed to follow or distinguish them in any future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

FINAL ORDER
¶1 On August 17, 2016, the administrative judge issued a compliance i nitial
d ecision granting the appellant’s petition for enforcement and finding the agency in noncompliance with the Board’s final decision in MSPB Docket No.
DA

- 1221

- 14

- 0518

- W

- 2

. Trombly v. Department of the Air Force , MSPB Docket
No. DA

- 1221

- 14

- 0518

- C

- 1, Compliance File, Tab 1 7 , Compliance Initial
Decision. As the agency did not file a statement of compliance, and ne ither party filed a petition for review of the compliance initial decision, within time limit set
forth in 5 C.F.R. § 1201.114 , the administrative judge’s findings of noncompliance become final
, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance pursuant to
5 C.F.R. § 1201.183 ( b )

- (c)

. Trombly v. Department of the Air Force , MSPB
Docket No. DA

- 1221

- 14

- 0518

- X

- 1, Compliance Referral File (CRF), Tab 8. For the reasons set forth below, we DISMISS the appellant’s petition for enforcement
as settled

. ¶2 Whi le the appellant’s petition for enforcement was pending before the Board, the parties submitted a document entitled “ NEGOTIATED
SETTLEMENT AGREEMENT , ” signed and dated on March 10 , 2017. CRF , Tab 10. The settlement agreement provide s , in relevant part
, t h at the appellant agreed to withdraw his petition for enforcement in exchange for the promises made by the agency

. Id

. a t 6. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, 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. Postal 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 determine whether the agreement is lawful on its face and whether the parties freely entered into it

. See3

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,
understan d its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. CRF, Tab 10

. In addition, we find that the agreement is lawful on its face and that the parties freely entered into it. Id

. A ccordingly, we find that dismissal of the petition for enforcement “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) 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 PARTIE S OF THE IR 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 init ial 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 out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).4

NOTICE OF APPEAL RIG HTS 2 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 of fer 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 below do not represent a statement of how courts will rul e 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 filing time limits and requirements. Failure to file withi n 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 your particular case. If you have questions
about whe ther 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 f or 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:

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.5

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 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 Petitioners and Appellants,” which is
contained within t he 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 informati on 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 attorney 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 such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision

— including a disposition of you r 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 repres entative receives this decision before you do, then you must file with the district court no later than 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

‐ appointed lawyer and6

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
websi tes, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportun ity 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 receive
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 revi ew 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 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: Office 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
Enhanc ement 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 challenge to the Board’s7

disposition of allegations of a prohibited personnel practice described in s ection 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 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 judici al 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 Circuit 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 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 regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The

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. 1510.8

Board neither endorses the services provided by any attorney nor warrants 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