NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3113
DEBORAH A. STEPHENS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Deborah A. Stephens, of Marietta, Georgia, pro se.
David F. D’Alessandris, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Donald E. Kinner, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3113
DEBORAH A. STEPHENS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
___________________________
DECIDED: August 23, 2007
___________________________
Before RADER and SCHALL, Circuit Judges, and FARNAN, District Judge. *
RADER, Circuit Judge.
The Merit Systems Protection Board denied appellant’s request for enforcement
of the settlement agreement reached in a dispute between Ms. Stephens and her
employer, the Department of the Army. Because substantial evidence supports the final
decision of the Board, this court affirms.
I
Ms. Stephens was removed from her position as an Administrative Support
Assistant with the First United States Army at Fort Gillem, Georgia for being Absent
Without Leave (AWOL), failing to follow established leave protocol, and failing to follow
*
Honorable Joseph J. Farnan, Jr., District Judge, United States District Court for
the District of Delaware, sitting by designation.
supervisory instructions. During a hearing held on October 12, 2006, Administrative
Judge, Joseph E. Clancy, encouraged the parties to discuss a settlement. After a brief
recess, a settlement was reached between the parties which fully resolved their dispute.
Judge Clancy issued an order on October 16, 2006 recording the terms of the
settlement which included the reinstatement of Ms. Stephens, the removal of certain
negative documents from her file, and permission to use her accrued sick leave. Ms.
Stephens agreed to waive her right to pursue this matter further (excluding her ongoing
EEOC case) and fill out retirement paperwork as soon as it became available.
On January 9, Ms. Stephens filed a petition of enforcement with the MSPB. Ten
days later, without waiting for the board’s decision, she filed this appeal. The MSPB, on
April 12, of this year denied Ms. Stevens enforcement petition.
II
As an initial matter, this court is without jurisdiction to hear this appeal. 5 C.F.R.
§ 1201.120 provides that “any employee…who is adversely affected by a final order or
decision of the Board under the provisions of 5 U.S.C. § 7703 may obtain judicial review
in the United States Court of Appeals for the Federal Circuit.” The MSPB decision had
not yet issued when Ms. Stephens brought this appeal.
III
Putting that aside, to the extent that this court has jurisdiction to review this
case, the decision of the MSPB to deny the petition of enforcement is affirmed.
This court must affirm any MSPB actions, findings, or conclusions not found to
be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance
with the law; (2) obtained without procedure required by law, rule, or regulation having
2007-3113 2
been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996);
Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
To show a breach of a settlement agreement a party must show material non-
compliance with the terms of the contract by the opposing party Gilbert v. Dept. of
Justice, 334 F.3d 1065, 1071 (Fed. Cir. 2003). Ms. Stephens has failed to do this. In
fact, evidence shows that the Army has complied with its obligations under the
settlement agreement, while Ms. Stevens has not filed for retirement as required
The agreement is lawful on its face, understood by the parties, and entered into
freely by the parties. There is no evidence of breech on the part of the Army.
Accordingly, the decision of the MSPB to deny the petition for enforcement is affirmed.
2007-3113 3