UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY D. DOUGLAS, DOCKET NUMBER
Appellant, AT-0752-17-0134-I-1
v.
DEPARTMENT OF JUSTICE, DATE: June 2, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lisa M. Ross, Esquire, Jackson, Mississippi, for the appellant.
Jennifer Spangler, Esquire, Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as settled. Generally, we grant petitions such as this one
only in the following circumstances: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 The appellant filed an appeal of the agency’s action removing her from her
Associate Warden’s Secretary position at the agency’s Bureau of Prisons. Initial
Appeal File (IAF), Tab 1, Tab 4 at 8. The administrative judge suspended the
appeal for 30 days to allow time for the parties to either execute a tentative
settlement they had reached or proceed with the appeal. IAF, Tab 12. Two
weeks later, the parties returned an executed settlement agreement to the
administrative judge. IAF, Tab 13. The administrative judge found that the
parties freely and voluntarily entered into the settlement agreement and that the
terms of the agreement were lawful on their face. IAF, Tab 14, Initial Decision
(ID) at 1. The administrative judge therefore approved the agreement and, in
keeping with the parties’ wishes, entered it into the record for enforcement
purposes and dismissed the appeal as settled. ID at 2.
¶3 In her May 8, 2017 petition for review, the appellant states in a sworn
declaration that she did not freely and voluntarily sign the agreement because the
administrative judge only gave her 24 hours to decide whether to accept it.
3
Petition for Review (PFR) File, Tab 1 at 7, 10. 2 The agency responds in
opposition to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A party may challenge the validity of a settlement agreement if she believes
that it is unlawful, involuntary, or the result of fraud or mutual mistake .
Hinton v. Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013). To
establish that a settlement was fraudulent as a result of coercion or duress, a party
must prove that she involuntarily accepted the other party’s terms, circumstances
permitted no other alternative, and such circumstances were the result of the other
party’s coercive acts. Id. The party challenging the validity of the settlement
agreement bears a “heavy burden.” Id. An appellant’s post-settlement remorse or
change of heart cannot serve as a basis for setting aside a valid settlement
agreement. Id.; Henson v. Department of the Treasury, 86 M.S.P.R. 221, ¶ 10
(2000).
¶5 Although the appellant now claims that the administrative judge gave her
24 hours to decide whether to accept the settlement agreement and that this
coerced her to sign the agreement, the record reflects that the parties reached a
tentative agreement in February 2017 and that about 3 weeks later, the
administrative judge suspended case processing to afford the parties enough time
to determine how to proceed. IAF, Tab 12. Although the administrative judge
instructed the appellant to respond immediately to indicate whether she agreed to
the terms of the parties’ tentative agreement, he also made clear that the appellant
retained the choice to continue her appeal and he set dates for prehearing
2
We find that the petition for review was timely filed. The appellant filed the petition
for review more than 35 days after the date of issuance of the initial decision . ID at 1,
3; see 5 C.F.R. § 1201.114(e) (setting forth the deadlines for filing a petition for
review). However, she has submitted a sworn declaration that she received the initial
decision on April 10, 2017, more than 5 days after its issuance, and the record reflects
that she filed her petition within 30 days of her April 10, 2017 receipt of the initial
decision. IAF, Tab 15; PFR File, Tab 1; see 5 C.F.R. § 1201.114(e), (g).
4
submissions, a prehearing conference, and a video hearing if she decided to do so.
Id.
¶6 The parties submitted the agreement on March 27, 2017 , two weeks after
the administrative judge issued his order suspending the appeal. IAF, Tab 12,
Tab 13 at 7. Save for the sworn affidavit accompanying her petition for review,
PFR File, Tab 1 at 10, nothing in the record supports the appellant’s assertion that
she felt pressured to sign the settlement agreement. Moreover, even if she had
been given only 24 hours to make her decision whether to settle the appeal, an
approaching deadline does not mean that the situation was coercive. The agency
was under no obligation to settle the case and the record reflects that neither the
choice itself nor the circumstances under which its offer was made were the result
of improper agency action. See Parrott v. Merit Systems Protection Board,
519 F.3d 1328, 1334-35 (Fed. Cir. 2008) (declining to find that an agency coerced
an employee into signing a settlement agreement when it told him he must sign it
that day or the agency would proceed with his proposed removal) . Thus, the
appellant has not shown that she involuntarily accepted the agency’s terms, that
the circumstances permitted her no other alternative, or that such circumstances
were the result of the agency’s coercive actions. See Hinton, 119 M.S.P.R. 129,
¶ 4.
¶7 Accordingly, we affirm the initial decision dismissing the appeal as settled.
NOTICE OF APPEAL RIGHTS 3
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
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.
5
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 case s 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
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
6
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 such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
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. 420 (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 than 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,
7
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
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 challenge 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
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.
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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
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 w ebsite 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
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.