UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN FAST WOLF, DOCKET NUMBER
Appellant, DE-1221-15-0389-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: September 24, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Fast Wolf, Fort Thompson, South Dakota, pro se.
Teresa M. Garrity, Esquire, Bloomington, Minnesota, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal as settled. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
the erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, and based on the following points and
authorities, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed this individual right of action (IRA) appeal challenging,
inter alia, the agency’s proposal to remove him from the position of Child
Welfare Specialist, GS-9. Initial Appeal File (IAF), Tab 1. While the appeal was
pending, and prior to a jurisdictional determination by the administrative judge,
the parties entered into a settlement agreement under which the appellant agreed
to withdraw his appeal. The settlement agreement specified that “the parties
do not intend or request that the referenced settlement agreement be entered into
the record for the purposes of enforcement by the MSPB.” IAF, Tab 40 at 5. The
administrative judge found that the agreement appears lawful and freely reached,
and, thus, dismissed the appeal as settled. IAF, Tab 41, Initial Decision (ID) at 2.
¶3 On review, the appellant contends that the agency breached the settlement
agreement and he requests to have his appeal reinstated. Petition for Review
(PFR) File, Tab 1. 2 The appellant does not allege that the administrative judge
2
A week after filing his petition for review, the appellant filed a pleading stating that
he was withdrawing his petition based on the agency’s compliance with the agreement.
PFR File, Tab 3. However, when contacted by the Office of the Clerk of the Board, the
appellant stated that he did not intend to withdraw the petition for review. PFR File,
Tab 4.
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erred in dismissing the appeal as settled, or otherwise challenge the validity of the
settlement agreement. 3 Id.
¶4 A pleading that alleges that the other party breached a settlement
agreement, but does not contend that the administrative judge erred in dismissing
the appeal pursuant to the agreement, is in substance a petition for enforcement.
See Lopez v. U.S. Postal Service, 71 M.S.P.R. 461, 463 (1996). Because the
record is sufficiently developed to enable us to adjudicate the petition, we need
not remand it to the Board’s field office. Id.
¶5 It is well settled that the Board does not have the authority to enforce a
settlement agreement that was not entered into the Board’s record for
enforcement purposes because of a lack of jurisdiction over the appeal. See, e.g.,
Barker v. Department of Agriculture, 100 M.S.P.R. 695, ¶ 6 (2006) (finding that
the Board lacked jurisdiction to entertain a petition for enforcement where the
parties did not object to the appeal being dismissed pursuant to a settlement
agreement that was not entered into the record); Lopez, 71 M.S.P.R. at 462, 464
(holding that the Board lacked authority to adjudicate a petition for enforcement
where the parties agreed to settle the appeal without incorporating the agreement
into the record for enforcement purposes).
¶6 Here, the settlement agreement explicitly states that it will not be entered
into the record for enforcement purposes. IAF, Tab 46 at 5. Thus, because the
agreement was not entered into the record for enforcement purposes, the Board
does not have the authority to act on the appellant’s request. See Lopez,
71 M.S.P.R. at 463; see also Wexler v. Department of the Interior, 48 M.S.P.R.
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In Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580, 583 (1994), the Board
held that a party may challenge the validity of a settlement agreement resulting in the
withdrawal of an appeal, even when that agreement is not entered into the record for
enforcement purposes, if the party believes that the agreement is unlawful, was
involuntary, or was the result of fraud or mutual mistake. In this case, the appellant
does not challenge the validity of the agreement by claiming that it was unlawful, was
involuntary, or was the result of fraud or mutual mistake.
4
513, 518 (1991) (finding that, where the appellant sought to nullify a settlement
agreement on the basis that the agency violated its terms, the Board considered
the allegation of breach only after finding that the agreement had been
incorporated into the record for enforcement purposes), aff’d, 954 F.2d 733 (Fed.
Cir. 1992) (Table).
¶7 Additionally, the administrative judge advised the parties that there was a
question of whether the Board had jurisdiction over this appeal but because the
parties settled the appeal and did not enter the agreement into the record for
enforcement purposes, the administrative judge did not decide the jurisdictional
issue. IAF, Tab 3; ID at 1-2. To determine whether the Board has jurisdiction
over the appellant’s IRA appeal, the administrative judge would have had to
review the appellant’s whistleblower claim and find that he exhausted his
administrative remedies before the Office of Special Counsel and made
nonfrivolous allegations that: (1) he engaged in whistleblowing activity by
making a protected disclosure, and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action. Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). However,
the parties decided not to pursue whether the Board has jurisdiction over the
appeal. Instead, they decided to settle the appeal without entering the agreement
into the record for enforcement purposes. Having so decided, the appellant
cannot now ask the Board to review the settlement agreement to determine if the
agency has breached it. Lopez, 71 M.S.P.R. at 464. The Board can make that
kind of review only when the settlement agreement has been entered into
the record.
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.
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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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
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respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States 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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.