Stanley Hayes v. Department of the Interior ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY HAYES, DOCKET NUMBER
Appellant, SF-0752-18-0002-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: February 3, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brook L. Beesley, Alameda, California, for the appellant.
Scott Hulbert and Dusty Parson, Boise, Idaho, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as settled. For the reasons discussed below, we GRANT the
appellant’s petition for review, REVERSE the administrative judge’s finding that
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the parties did not intend for the settlement agreement to be entered into the
record for enforcement purposes, and AFFIRM the dismissal of the appeal as
settled.
BACKGROUND
¶2 The appellant filed a Board appeal, which the parties resolved by settlement
agreement. Initial Appeal File (IAF), Tab 1, Tab 20 at 5-9. On March 19, 2018,
the agency submitted the agreement into the record. IAF, Tab 20. The same day,
the administrative judge issued an order, in which she notified the parties that she
would not enter the agreement into the record for enforcement purposes unless the
parties notified her, by March 22, 2018, of their intent that it be entered for that
purpose. IAF, Tab 21 at 1-2. On March 19, 2018, the Western Regional Office
served the order on the agency electronically and on the appellant and his
representative by mail. Id. at 3. It is undisputed that neither party submitted a
timely response.
¶3 On March 23, 2018, the administrative judge issued an initial decision
dismissing the appeal as settled. IAF, Tab 22, Initial Decision (ID) at 1-2. She
found that the agreement was lawful on its face and that the parties freely entered
into it, but was silent as to whether the parties intended for the Board to retain
jurisdiction for enforcement purposes. Id.¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has submitted a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant challenges the administrative judge’s decision not
to enter the agreement into the record for enforcement purposes. PFR File, Tab 1
at 1-4. He argues that the agency’s entering of the agreement into the record
presumptively established that the parties intended for the Board to retain
jurisdiction to enforce the agreement, and that the additional documentation he
submits on review further proves that was the parties’ intent. Id.3
¶6 The Board retains jurisdiction to enforce a settlement agreement if it has
been entered into the record for that purpose. Delorme v. Department of the
Interior, 124 M.S.P.R. 123, ¶¶ 16, 21 (2017). If the parties enter an agreement
into the record and it is approved by the administrative judge, it will be
enforceable by the Board unless the parties clearly specify that they do not want
Board enforcement. Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107-08
(1997); see 5 C.F.R. § 1201.41(c)(2)(i) (providing that a settlement agreement
will be made a part of the record, and the Board will retain jurisdiction to ensure
compliance therewith, if the parties offer it for inclusion into the record and the
judge approves it). Although the agency offered the settlement agreement into
the record, there was no indication as to the appellant’s position concerning its
entry. IAF, Tab 20.
¶7 As for the supplemental information that the appellant provides on review,
generally, under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board
will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previou sly
available despite the party’s due diligence). The appellant’s inability to
supplement the record before the deadline was attributable to the unreasonably
short period of time—3 days—he was given to receive and prepare a response to
the March 19, 2018 Order. IAF, Tab 21; see Lagreca v. U.S. Postal Service,
114 M.S.P.R. 162, ¶ 6 (2010) (observing that the Board presumes a 5-day mailing
time). He acted promptly after receiving the order to obtain and submit
additional information, which, for the reasons explained below, affects the
outcome of the appeal. PFR File, Tab 1 at 5-7; see Russo v. Department of
Veterans Affairs, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not
4
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision). Accordingly, we consider the appellant’s additional arguments and
evidence submitted on review.
¶8 The appellant provides a two-page request for reconsideration that he filed
with the Western Regional Office on March 23, 2018, explaining that the parties
jointly intended for the agreement to be entered into the record for enforcement
purposes. PFR File, Tab 1 at 5-7. He also submits a March 23, 2018 email from
the agency evidencing its concurrence with the appellant’s position.
PFR File, Tab 1 at 8. Similarly, in its response, the agency avers that the parties
intended for the Board to retain jurisdiction over the settlement agree ment.
PFR File, Tab 3 at 4. Therefore, we find that, when considering the parties’
submission on review, the record reflects that they intended for the Board to
retain jurisdiction over the settlement agreement. See Hester v. U.S. Postal
Service, 72 M.S.P.R. 149, 151-52 (1996) (relying on the statements of the parties,
as reflected in the administrative judge’s recorded notes, to determine whether
they intended for the settlement agreement to be entered into the record for
enforcement purposes when the agreement was silent on that issue). We reverse
the administrative judge’s finding otherwise and enter the settlement agreement
into the record for enforcement purposes. 2
2
On review, the agency argues that the appellant’s petition for review is moot because
it was in compliance with the settlement agreement. PFR File, Tab 3 at 3-4. While a
party’s compliance with the settlement agreement may render a petition for enforcement
moot, Gingery v. Department of Veterans Affairs, 117 M.S.P.R. 354, ¶ 18,
aff’d, 480 F. App’x 588 (Fed. Cir. 2012), the appellant has not filed a petition for
enforcement, PFR File, Tab 1. In any event, the issue of compliance is not properly
before the Board. See Niday v. Department of the Army, 42 M.S.P.R. 673, 679 (1990)
(dismissing a petition for enforcement as premature because the initial decision
dismissing the appeal as settled was not final). If either party wishes to file a petition
for enforcement, it may do so with the Western Regional Office. See 5 C.F.R.
§ 1201.182(a).
5
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
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 OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 offer 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 rule
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
within 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
3
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.
6
about whether 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 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).
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:
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 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 information 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 su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
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 t han 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 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 information for U.S. district courts can be found at their respective
websites, 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
Opportunity 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 review 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
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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
Enhancement 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 cha llenge 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. 4 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 judicial 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
4
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 court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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 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 information 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 warr ants 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.