UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANE HORN-CRUDER, DOCKET NUMBER
Appellant, DC-0752-14-0795-C-3
v.
DEPARTMENT OF HEALTH AND DATE: December 2, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Diane Horn-Cruder, Gaithersburg, Maryland, pro se.
Matthew M. Vince and Susan M. Andorfer, 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 of the settlement
agreement resolving her removal appeal as barred by res judicata. Generally, we
grant petitions such as this one only in the following circumstances: the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous a pplication
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 affec ted 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 1 201.115 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant from her position as a GS -11 Program
Analyst, and she timely appealed her removal to the Board. Horn ‑ Cruder v.
Department of Health & Human Services, MSPB Docket No. DC‑0752‑14-0795-
I-1, Initial Appeal File (IAF), Tab 1. While the appeal was pending, the parties
entered into a settlement agreement, which provided, in relevant part, that the
appellant would withdraw her appeal with prejudice and that the agency would
pay her a lump sum payment and attorney fees, rescind the Standard Form 50
documenting her removal and replace it with one reflecting that she voluntarily
retired, and expunge documents related to her removal from her official personnel
file and her direct supervisors’ files. IAF, Tab 7 at 5-6. The administrative judge
found that the settlement was lawful on its face and that the parties freely entered
into the agreement and understood its terms. IAF, Tab 8, Initial Decision (ID)
at 2. Accordingly, in an October 2, 2014 initial decision, she entered the
3
settlement agreement into the record for purposes of enforcement by the Board
and dismissed the appeal as settled. Id.
¶3 On March 10, 2015, the appellant filed a petition for enforcement of the
settlement agreement, arguing that the agency had failed to comply with its
obligation to expunge documents related to her removal from her personnel file—
specifically, an October 24, 2013 letter banning the appellant from the National
Institutes of Health (NIH) campus and other NIH work locations. Horn-Cruder v.
Department of Health & Human Services, MSPB Docket No. DC-0752-14-0795-
C-1, Compliance File (CF), Tab 1 at 2-8, 23. While the petition for enforcement
was pending, the parties entered into another settlement agreement, dated May 15,
2015, resolving the compliance matter. CF, Tab 10. In relevant part, the agency
stipulated that the campus ban had been lifted as of April 21, 2015, agreed to pay
attorney fees arising from the compliance matter, and agreed to provide the
appellant’s representative a letter stating that the campus ban had been lifted and
that the October 24, 2013 letter regarding the ban need not be expunged because
it was never made part of the appellant’s official personnel file. Id. at 6-7. The
administrative judge found that the settlement agreement was lawful on its face
and that the parties freely entered into it and understood its terms. CF, Tab 12,
Compliance Initial Decision (CID) at 2. Accordingly, in a May 27, 2015
compliance initial decision, she entered the settlement agreement into the record
for purposes of enforcement and dismissed the appeal as settle d. Id.
¶4 On August 20, 2015, the appellant wrote to the administrative judge
regarding an email containing a 57-page attachment sent from the agency
representative to her former attorney, which her former attorney forwarded to her
on May 18, 2015. 2 Horn-Cruder v. Department of Health & Human Services,
2
Based on emails later submitted by the appellant, it appears that the document sent to
her attorney and forwarded to her on May 18, 2015, was a copy of the parties’ joint
motion to dismiss the first petition for enforcement as settled. Horn-Cruder v.
Department of Health & Human Services, MSPB Docket No. DC-0752-14-0795-C-2,
Compliance File (C-2 CF), Tab 1 at 5, Tab 8 at 1-2; CF, Tab 9. However, it appears
4
MSPB Docket No. DC-0752-14-0795-C-2, Compliance File (C-2 CF), Tab 1 at 5.
She asserted that she was concerned and frightened for her safety and asked the
Board to “please provide me guidance on whether I should retain a lawyer or
provide me with other options.” Id. at 5-6. She also resubmitted her original
response to the notice of proposed removal and her 57-page first petition for
enforcement. Id. at 1-4, 10-66. The administrative judge docketed the
submission as a second petition for enforcement and ordered the agency to
respond showing compliance. C-2 CF, Tab 2. The agency responded that, while
the basis of the appellant’s petition for enforcement was unclear, the agency had
fully complied with the May 15, 2015 settlement agreement resolving the
appellant’s first petition for enforcement by paying the agreed-upon attorney fees
and by sending the agreed‑upon letter to the appellant’s representative on
May 26, 2015. C-2 CF, Tab 3 at 5-7, 9, 11. In response, the appellant reiterated
her concerns about her safety and stated that the 57-page document was the basis
of her petition for enforcement. C-2 CF, Tab 9. In a November 5, 2015
compliance initial decision, the administrative judge found the agenc y in
compliance with the settlement agreement and denied the appellant’s second
petition for enforcement. C-2 CF, Tab 13.
¶5 On May 6, 2016, the appellant wrote to the administrative judge again,
asserting that she wanted to renegotiate the settlement agreement because the
agency representative has treated her unfairly, violated her due process rights,
“failed to see [her] as a human being,” and has been trying to “block [her] from
retaining an attorney.” Horn-Cruder v. Department of Health & Human Services,
MSPB Docket No. DC-0752-14-0795-C-3, Compliance File (C-3 CF), Tab 1
at 1-2. She also asked to be reinstated to her former position. Id. The
administrative judge docketed the submission as a third petition for enforcement
that the 57-page document she is referring to, which she submitted in full with her
second petition for enforcement, is the first petition for enforcement submitted by her
attorney representative. Compare CF, Tab 1, with C-2 CF, Tab 1 at 10-66.
5
and ordered the agency to submit evidence showing that it complied with the
settlement agreement. C-3 CF, Tab 2. The agency responded in opposition to the
appellant’s petition for enforcement, arguing that it should be dismissed for
failure to identify any breach of the most recent s ettlement agreement and as
barred by the doctrine of res judicata. C-3 CF, Tab 4. In response, the appellant
complained that she is trying to get information regarding the 57 -page document
sent to her former attorney by the agency representative and that she wants the
agency “to be held accountable and responsible for their negative actions against
[her].” C-3 CF, Tab 5 at 2. In a June 21, 2016 compliance initial decision, the
administrative judge dismissed the appellant’s third petition for enforcemen t as
barred by the doctrine of res judicata. C-3 CF, Tab 6, Compliance Initial
Decision (C-3 CID). The administrative judge noted that, during a telephonic
status conference, the appellant indicated that she wanted a new settlement
agreement because the agency had engaged in bad faith. C-3 CID at 3-4. The
administrative judge explained, however, that challenges to the validity of a
settlement agreement that has been entered into the Board’s record in a previous
appeal must be raised in a petition for review of the decision accepting the
agreement into the record, not through a collateral attack on the agreement in a
new appeal. C-3 CID at 4.
¶6 The appellant has filed a petition for review of the third compliance initial
decision. Compliance Petition for Review (CPFR) File, Tab 4. On review, she
states again that she wants a new settlement agreement and that the original
settlement agreement should not be enforced and argues that the agency and the
agency representative “engaged in bad faith” and presen ted “several erroneous
materials” during the settlement negotiations that were “false and misleading.”
Id. at 6. She further reiterates her contentions about the NIH campus ban
previously in place, challenges the merits of the agency’s removal action, and
asserts that the agency retaliated against her for filing an equal employment
opportunity complaint by denying her a promotion. Id. at 6-10. The appellant
6
asks to be reinstated to her former position and for back pay because she was
“[f]alsely [a]ccused and [w]rongly [t]erminated. ” Id. at 11. The agency has
responded in opposition to the appellant’s petition for review, and the appellant
has replied to the agency’s response. CPFR File, Tabs 8 -9.
¶7 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Encarnado v. Office of Personnel Management,
116 M.S.P.R. 301, ¶ 10 (2011); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332,
337 (1995). Res judicata precludes parties from relitigating issues that were, or
could have been, raised in the prior action, and is applicable if: (1) the prior
judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment on the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Encarnado,
116 M.S.P.R. 301, ¶ 10; Peartree, 66 M.S.P.R. at 337.
¶8 In the third compliance initial decision, the administrative judge found that
there was no dispute that the appellant’s first and second petitions for
enforcement were within the Board’s jurisdiction, that they both resulted in a
final judgment on the merits, that the same parties were involved in each of the
appellant’s petitions, and that this petition for enforc ement involves the same
claims that the appellant raised in her previous petitions for enforcement. ID at 3.
Further, she found that the appellant has not alleged a new basis for a breach of
the settlement agreement by the agency or any new claims, facts, or evidence of a
breach and that she merely seeks to relitigate the same claims she raised in her
prior petitions for enforcement in hopes of obtaining a new outcome. Id. Thus,
the administrative judge concluded that the appellant’s third petition for
enforcement was barred under the doctrine of res judicata.
¶9 On review, the appellant has not identified any error in the administrative
judge’s determination that her challenge to the prior settlement agreements is
barred by res judicata. CPFR File, Tabs 4, 9. Having carefully reviewed the
7
appellant’s prior petitions for enforcement and the resulting compliance initial
decisions, we agree with the administrative judge’s determination that this
petition for enforcement, insofar as it alleges breach of the first or second
settlement agreement, is barred by res judicata. See Encarnado, 116 M.S.P.R.
301, ¶ 10; Peartree, 66 M.S.P.R. at 337.
¶10 As the administrative judge correctly explained, the appellant’s challeng es
to the validity of either settlement agreement must be raised as a petition for
review of the initial decision dismissing the appeal resolved by that settlement
agreement as settled. 3 Weldon v. Department of Veterans Affairs, 119 M.S.P.R.
478, ¶ 5 (2013); Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357,
¶ 8 (2009). Accordingly, we find that the appellant’s challenges to the validity of
the settlement agreements are not properly before the Board in this compliance
appeal.
¶11 Lastly, the appellant’s challenges to the original removal action are likewise
not properly before the Board. Once a settlement agreement is entered into the
Board’s record, the original appealable action is withdrawn or dismissed . King v.
Reid, 59 F.3d 1215, 1218 (Fed. Cir. 1995). Accordingly, the Board lacks
jurisdiction to hear the appellant’s claims regarding the merits of her removal, as
well as her allegations of discrimination in connection with a petition for
enforcement of a settlement agreement. See id.; Walker-King v. Department of
Veterans Affairs, 119 M.S.P.R. 414, ¶ 15 (2013) (stating that the Board lacks
jurisdiction to hear pendent discrimination claims in connection with a petition
for enforcement of a settlement agreement).
3
We make no finding regarding the timeliness of any petition for review the appellant
may elect to file.
8
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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law and other sections of the United States
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 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
9
Merit Systems Protection Board neither endorses the services provide d 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.