UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTHA B. HOLCOMB, DOCKET NUMBER
Appellant, AT-0752-13-0575-C-1
v.
DEPARTMENT OF THE TREASURY, DATE: September 20, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey W. Bennitt, Esquire, Birmingham, Alabama, for the appellant.
Byron D. Smalley, Esquire, and Felix M. Digilov, Esquire, Washington,
D.C., 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 compliance initial
decision, which dismissed her petition for enforcement for lack of jurisdiction.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative 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. 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, 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).
BACKGROUND
¶2 On May 20, 2013, the appellant filed a Board appeal contending that she
had been involuntarily demoted from her GS-13 Supervisory Revenue Officer
position. Holcomb v. Department of the Treasury, MSPB Docket No. AT-0752-
13-0575-I-1, Initial Appeal File (IAF), Tab 1. The administrative judge initially
dismissed the appeal for lack of jurisdiction finding that the appellant failed to
make nonfrivolous allegations of Board jurisdiction. IAF, Tab 9. On review, the
Board reversed the administrative judge’s initial decision, finding that the
appellant had made nonfrivolous allegations of Board jurisdiction, and remanded
the appeal for further adjudication. Holcomb v. Department of the Treasury,
MSPB Docket No. AT-0752-13-0575-I-1, Remand Order (July 9, 2016); Holcomb
v. Department of the Treasury, MSPB Docket No. AT-0752-13-0575-B-1,
Remand File (RF), Tab 1.
¶3 On remand, the parties entered into a settlement agreement resolving the
appeal, and the administrative judge issued a remand initial decision dismissing
the appeal as settled. RF, Tab 9, Remand Initial Decision (RID). In the remand
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initial decision, the administrative judge stated that he had informed the parties
that he could not enter the settlement agreement into the record for enforcement
because the issue of the Board’s jurisdiction over the appeal remained unresolved.
RID at 1-2. He also noted that he had placed a copy of the settlement agreement
in the appeal file for the limited purpose of evidencing that the appellant had
withdrawn her appeal pursuant to a settlement agreement. RID at 2. Neither
party filed a petition for review of that decision, which became the final decision
of the Board. Id.; see 5 C.F.R. § 1201.113.
¶4 The appellant subsequently filed a petition for enforcement of the
settlement agreement. Compliance File (CF), Tab 1. The administrative judge
issued a compliance initial decision dismissing the appellant’s petition for
enforcement for lack of jurisdiction. CF, Tab 17, Compliance Initial Decision
(CID). The administrative judge found that the Board lacks jurisdiction to
enforce the settlement agreement at issue because it was not entered into the
record for enforcement. CID at 2-3.
¶5 The appellant has filed a petition for review in which she contends that the
Board has jurisdiction over her underlying appeal and should therefore enforce
the settlement agreement. Compliance Petition for Review (CPFR) File, Tab 1 at
2-5. 2 The agency has opposed the appellant’s petition. CPFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board will incorporate a settlement agreement into the record and
enforce its terms if the following requirements are met: (1) the parties intended
that the agreement be enforced by the Board; (2) the Board has jurisdiction over
the appeal; and (3) the agreement is lawful on its face and was freely reached and
understood by the parties. Spidel v. Department of Agriculture, 113 M.S.P.R. 67,
¶ 6 (2010).
2
The appellant also filed a nearly identical amended petition for review which we have
also considered. CPFR File, Tab 2.
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¶7 The Board has the authority to enforce the terms of a settlement agreement
that has been entered into the record. See, e.g., Kowalczyk v. Department of the
Army, 44 M.S.P.R. 616, 623 (1990). However, 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. See, e.g., Lopez v. U.S. Postal
Service, 71 M.S.P.R. 461, 463 (1996).
¶8 We find unavailing the appellant’s argument on review that the Board’s
remand order found jurisdiction over her appeal. CPFR File, Tab 1 at 5. The
Board did not make a jurisdictional finding; but rather, found that the appellant
raised nonfrivolous allegations of Board jurisdiction entitling her to a
jurisdictional hearing. RF, Tab 1 at 4-5. Because the parties agreed to postpone
the hearing and, instead, settled the appeal, the administrative judge did not make
a jurisdictional finding on remand. RID at 1-2.
¶9 On review, the appellant, who is represented by the same counsel as in the
initial proceedings, does not contend that the parties intended for the settlement
agreement to be entered into the record for enforcement. Nor does she dispute
that the administrative judge informed the parties that the settlement agreement
would not be entered into the record for enforcement. RID at 1-2; CID at 2-3.
The appellant also did not file a petition for review challenging the remand initial
decision’s dismissal of the appeal as settled without entering the settlement
agreement into the record for enforcement.
¶10 Thus, when, as here, the parties elected to settle an appeal without entering
the settlement agreement into the record for enforcement purposes, the Board
lacks jurisdiction to adjudicate a petition for enforcement of the settlement
agreement. See 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 when 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 (finding that the Board lacked the authority to adjudicate
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a petition for enforcement when the parties agreed to settle the appeal without
incorporating the agreement into the record for enforcement purposes); Pelatti v.
Department of the Navy, 45 M.S.P.R. 33, 36 (1990) (finding that the Board lacked
the authority to enforce a settlement agreement that was not made a part of the
record).
¶11 Accordingly, we find that the administrative judge properly dismissed the
appellant’s petition for enforcement for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. 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 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 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
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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 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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.