Opinion

Paula Sutton v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 9, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAULA SUTTON, DOCKET NUMBER

Appellant, CB-7121-24-0003-V-1

DEPARTMENT OF HOMELAND DATE: April 9, 2025

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sameera Mangena , Oakland, California, for the appellant.

William Igoe , Chicago, Illinois, for the appellant.

Eli Kirschner , Joey Ann Lonjers , and Jonathan Brent , Long Beach,

California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member*

*The Board members voted on this decision before April 9, 2025.

FINAL ORDER

Pursuant to the Board’s instructions in this arbitration review matter, the

administrative judge issued a February 13, 2025 Initial Decision in which she

dismissed the appeal as settled. Sutton v. Department of Homeland Security,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

MSPB Docket No. CB-7121-24-0003-H-1, Referral Proceeding File (RPF),

Tab 10, Initial Decision. The case was forwarded back to the Board and neither

party has filed exceptions to the administrative judge’s decision. For the reasons

set forth below, we MODIFY the Initial Decision to clarify that it is a

recommended decision and ADOPT the administrative judge’s recommendation

to dismiss the appeal as settled.

The administrative judge erred in issuing an initial decision instead of a

recommended decision. Pursuant to the Board’s authority in 5 C.F.R.

§ 1201.155(e), we forwarded this matter to the Board’s Western Regional Office

for an administrative judge to make recommended findings on the appellant’s

claim of reprisal for the Rehabilitation Act protected activities of requesting

reasonable accommodations and filing equal employment opportunity complaints

opposing disability discrimination. See Brookens v. Department of Labor,

120 M.S.P.R. 678, ¶ 15 (2014) (forwarding the appellant’s claims of

discrimination and retaliation to the regional office for further adjudication and

for the administrative judge to make recommended findings); Sutton v.

Department of Homeland Security, MSPB Docket No. CB-7121-24-0003-V-1,

Order, ¶¶ 35-37 (Nov. 25, 2024). Thus, we modify the Initial Decision to clarify

that it is a recommended decision but nevertheless adopt the administrative

judge’s recommendation to dismiss the appeal as settled.

During the referral proceeding below, the parties submitted a document

entitled “SETTLEMENT AGREEMENT,” signed by the parties on February 12,

2025. The document provides, among other things, for the withdrawal of the

appeal.

Before dismissing a matter as settled, the Board must decide whether the

parties have entered into a settlement agreement, whether they understand its

terms, and whether they intend to have the agreement entered into the record for

enforcement by the Board. See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146,

149 (1988). In addition, before accepting a settlement agreement into the record

for enforcement purposes, the Board must determine whether the agreement is

lawful on its face and whether the parties freely entered into it. See Delorme v.

Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017).

Here, we find that the parties have entered into a settlement agreement,

understand its terms, and intend for the agreement to be entered into the record

for enforcement by the Board. RPF, Tab 8. Accordingly, we find that dismissing

the appeal with prejudice to refiling (i.e., the parties normally may not refile this

appeal) is appropriate under these circumstances. In addition, we find that the

agreement is lawful on its face and freely entered into, and we accept the

settlement agreement into the record for enforcement purposes.

This is the final decision of the Merit Systems Protection Board on the

appellant’s request for arbitration review. Title 5 of the Code of Federal

Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

NOTICE TO THE PARTIES OF THEIR

ENFORCEMENT RIGHTS

If the agency or the appellant has not fully carried out the terms of the

agreement, either party may ask the Board to enforce the settlement agreement by

promptly filing a petition for enforcement with the office that issued the initial

decision on this appeal. The petition should contain specific reasons why the

petitioning party believes that the terms of the settlement agreement have not

been fully carried out, and should include the dates and results of any

communications between the parties. 5 C.F.R. § 1201.182(a).

NOTICE OF APPEAL RIGHTS 2

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).

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.

Although we offer the following summary of available appeal rights, the Merit

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 cases 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

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,

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. 3 The court of appeals must receive your

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

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