Opinion

Donte Brandon v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Apr 8, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONTE G. BRANDON, DOCKET NUMBERS

Appellant, DC-315H-24-0679-I-1

DC-3443-25-0033-I-1

DEPARTMENT OF AGRICULTURE, DATE: April 8, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donte G. Brandon , Temple Hills, Maryland, pro se.

Debbie Clark , Esquire, David P. Simmons , Esquire, and Rachel Trafican ,

Esquire, Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed petitions for review of the initial decisions in

Brandon v. Department of Agriculture, MSPB Docket No. DC-315H-24-0679-I-1

(0679), which dismissed his probationary termination appeal as withdrawn,

pursuant to the parties’ settlement agreement, and Brandon v. Department of

Agriculture, MSPB Docket No. DC-3443-25-0033-I-1 (0033), which dismissed

for lack of jurisdiction his appeal seeking to enforce the settlement agreement or

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

reopen the prior appeal. Because these petitions for review concern the same

underlying facts and arguments, such that joinder will expedite their processing

without adversely affecting the parties’ rights, we have JOINED them for

adjudication pursuant to 5 C.F.R. § 1201.36(a)(2), (b). After fully considering

the filings in these appeals, we conclude that the petitioner has not established

any basis under section 1201.115 for granting the petitions for review. Therefore,

we DENY the petitions for review and AFFIRM the initial decisions, which are

now the Board’s final decisions. 5 C.F.R. § 1201.113(b). We have also

considered the appellant’s petitions for review as a request to reopen his

probationary termination appeal in the 0679 appeal, and that request is DENIED.

5 C.F.R. § 1201.118.

BACKGROUND

On June 30, 2024, the appellant timely filed a Board appeal of his June 28,

2024 probationary termination disputing the merits of the agency’s action and

arguing that it was reprisal for equal employment opportunity activity and

discrimination based on disability and race. Brandon v. Department of

Agriculture, MSPB Docket No. DC-315H-24-0679-I-1, Initial Appeal File (0679

IAF), Tab 1 at 2. He also asserted that he was not a probationary employee

because he had prior Federal service. Id.; 0679 IAF, Tab 5 at 5. On July 17,

2024, the agency filed a motion to dismiss the appeal on the basis that the parties

had entered into a settlement agreement wherein the appellant agreed to

withdraw, with prejudice, all pending appeals, including MSPB Docket No.

DC-315H-24-0679-I-1, and agreed that he would not file any new appeals or

complaints “of any nature” with, among other entities, the Board regarding any

aspect of his employment with the agency “prior to the effective date of [the]

[a]greement.” 0679 IAF, Tab 8 at 4-6. The settlement agreement also provided

that the appellant would submit his resignation and waive any right to

reinstatement as an employee with the agency for a period of 10 years, in

exchange for a $20,000.00 lump sum payment and a new Standard Form 50

reflecting a resignation, effective June 28, 2024, rather than a probationary

termination. Id. The agency’s motion stated that the Board “may retain

jurisdiction for enforcement purposes,” id. at 4, but the parties clarified in a

signed addendum to the settlement agreement that they intended the agreement to

be enforceable by the Equal Employment Opportunity Commission (EEOC), 0679

IAF, Tab 10 at 4, 6. On July 25, 2024, the administrative judge issued an initial

decision dismissing the appeal as withdrawn and finding that the settlement

agreement was not to be entered into the record for purposes of enforcement.

0679 IAF, Tab 11, Initial Decision (0679 ID). Neither party filed a timely

petition for review, and the initial decision became the Board’s final decision on

August 29, 2024. 0679 ID at 4.

On October 11, 2024, the appellant filed another Board appeal, in which he

alleged that the agency had not complied with the settlement agreement.

Brandon v. Department of Agriculture, MSPB Docket No. DC-3443-25-0033-I-1,

Initial Appeal File (0033 IAF), Tab 1 at 2. He also requested, among other

things, that the term prohibiting him from seeking employment with the agency

for a period of 10 years be stricken from the settlement agreement and that he be

reinstated to Federal service without any interruption in service. Id. The

appellant subsequently filed a request to reopen his probationary termination

appeal in MSPB Docket No. DC-315H-24-0679-I-1 on the basis that the agency’s

“pattern of retaliation and negligence” in his wrongful termination, throughout

the Board and EEOC proceedings, and its noncompliance with the settlement

agreement have caused him significant mental and financial distress. 0033 IAF,

Tab 2 at 6. The administrative judge subsequently issued a show cause order

directing the appellant to file evidence and argument to prove that the Board had

jurisdiction to enforce the settlement agreement, when the parties had agreed that

it would be enforceable by the EEOC. 0033 IAF, Tab 4. In his November 5,

2025 and November 7, 2025 responses, the appellant repeated his arguments

concerning the merits of his probationary termination, his probationary status, the

distress caused by the termination, and the 10-year employment ban. 0033 IAF,

Tab 6 at 4, Tab 7 at 8. In these submissions, however, he additionally alleged

that he was compelled to resign due to the agency’s retaliatory actions. 0033

IAF, Tab 6 at 4, Tab 7 at 8. On November 15, 2024, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction and

finding that, because the appellant had not introduced new evidence or shown that

the withdrawal of the appeal was the result of misinformation, he lacked the

authority to reopen or reinstate the appeal. 0033 IAF, Tab 9, Initial Decision

(0033 ID) at 4-5 (citing Nahoney v. U.S. Postal Service, 112 M.S.P.R. 93, ¶ 15

(2009); Robey v. U.S. Postal Service, 105 M.S.P.R. 539 (2007)).

On March 7, 2025, the appellant filed a petition for review in his

0033 appeal disputing the merits of his termination, requesting the retraction of

his resignation, and expressing his intent to return to his position in Federal

service. Brandon v. Department of Agriculture, MSPB Docket No. DC-3443-25-

0033-I-1, Petition for Review (0033 PFR) File, Tab 1 at 4. In his petition, he

explains that his “request” is untimely filed because he was under “medical care”

for the “distress caused by the allegations related to [his] termination.” Id.

He filed supplements to his petition on March 7, 2025, and July 22, 2025. 0033

PFR File, Tabs 2, 4.

The appellant has also filed a petition for review in the 0679 appeal, on

June 24, 2025, requesting that the Board reopen or reconsider the dismissal of his

appeal. Brandon v. Department of Agriculture, MSPB Docket No. DC-315H-24-

0679-I-1, Petition for Review (0679 PFR) File, Tab 1 at 6-7. In this petition, the

appellant argues that his resignation was coerced, that the 10-year employment

bar in the settlement agreement is unlawful, that he has been denied access to his

employment record, that his mental health conditions and disability constitute

good cause for his untimely filing, that he was not a probationary employee at the

time of his termination, and that the agency was required by court order to return

terminated probationary employees to service. 2 Id.

The agency has filed timely responses to both petitions for review. 0679

PFR File, Tab 6; 0033 PFR File, Tab 10. The appellant has filed a reply to the

agency’s response in 0033. 0033 PFR File, Tab 11.

ANALYSIS

We have considered the appellant’s submissions as petitions for review as

well as requests to reopen his withdrawn probationary termination appeal. See

Little v. Government Printing Office, 99 M.S.P.R. 292, ¶ 10 (2005). A

withdrawal of an appeal is an act of finality that removes the appeal from the

Board’s jurisdiction. Bilbrew v. U.S. Postal Service, 111 M.S.P.R. 34, ¶ 14

(2009); Little, 99 M.S.P.R. 292, ¶ 10. Absent unusual circumstances, such as

misinformation or new and material evidence, the Board will not reinstate an

appeal once it has been withdrawn merely because the appellant wishes to

proceed before the Board or to cure an untimely petition for review. Cason v.

Department of the Army, 118 M.S.P.R. 58, ¶ 5 (2012); Bilbrew, 111 M.S.P.R. 34,

¶ 14. A case may be reopened in the interests of justice where the evidence is of

such weight as to warrant a different outcome, but the Board will reopen a case

only if the appellant has exercised due diligence in seeking reopening. Bilbrew,

111 M.S.P.R. 34, ¶ 14. Furthermore, the Board’s authority to reopen a case is

limited by the requirement that such authority be exercised within a reasonably

In his 0033 petition for review, the appellant submits the Board’s March 5, 2025 order

in Special Counsel ex rel. John Doe v. Department of Agriculture , MSPB Docket No.

CB-1208-25-0020-U-1, which granted the Office of Special Counsel’s request to stay

the mass probationary terminations of agency employees in February 2025. 0033 PFR

File, Tab 1 at 5-17. In his 0679 petition for review, the appellant references judicial

orders, which similarly required the agency to reinstate probationary employees who

were terminated en masse in February 2025. 0679 PFR File, Tab 1 at 7. While the

appellant argues that those orders included employees similarly situated to him, id., it is

undisputed that the appellant resigned, pursuant to the parties’ settlement agreement, on

June 28, 2024, 0679 IAF, Tab 8 at 6, well before the relevant time frame covered by the

orders he identified.

short period of time. Trachtenberg v. Department of Defense, 104 M.S.P.R. 640,

¶ 12 (2007). That period of time is usually measured in weeks, not months or

years. Id.

The appellant has not established that it would be in the interests of justice

to reopen the appeal of his probationary termination. First, the appellant filed his

first request to reopen the appeal on October 31, 2024, more than 3 months after

the issuance of the July 25, 2024 initial decision dismissing his appeal as

withdrawn. 0033 IAF, Tab 2; 0679 ID; see Bilbrew, 111 M.S.P.R. 34, ¶ 14

(finding that the appellant did not exercise due diligence when he waited

2 months after the initial decision was issued to file a request to reopen). More

importantly, however, he has not alleged facts that would warrant a different

outcome.

Furthermore, the words of a settlement agreement are of paramount

importance in determining the parties’ intent when they contracted, and parol or

extrinsic evidence regarding the parties’ intent will be considered only if the

agreement is ambiguous. Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 6

(2009) aff’d per curiam, 367 F. App’x 137 (Fed. Cir. 2010); see Dunn v.

Department of the Army, 100 M.S.P.R. 89, ¶ 9 (2005) (noting that the Board will

not imply a term in an unambiguous agreement). Ambiguity exists if the

settlement agreement’s terms are reasonably susceptible to more than one

interpretation. Lee, 111 M.S.P.R. 551, ¶ 6. The Board does not have authority to

enforce or invalidate a settlement agreement reached in another forum, such as

the EEOC. Id., ¶ 4 n.2. Nevertheless, the Board may review a settlement

agreement reached outside of a Board proceeding to determine its effect on a

Board appeal and any waiver of Board appeal rights. Id., ¶ 4.

It is undisputed that the parties agreed the settlement agreement would be

enforceable by the EEOC, not the Board. 0679 IAF, Tab 10 at 4, 6; see 0679

ID at 4. Thus, the Board lacks jurisdiction over the appellant’s claims that the

agency has not complied with the settlement agreement and that the 10-year

employment ban is unlawful. See Cimilluca v. Department of Defense,

77 M.S.P.R. 256, 257-59 (1998) (vacating a compliance initial decision

adjudicating a petition for enforcement when a settlement agreement was not

entered into the record for enforcement purposes). Because similarly

unambiguous terms of the settlement agreement provide that the appellant agreed

to withdraw the appeal of his probationary termination, the Board is also barred

from adjudicating the appellant’s claims on the merits. Consequently, we discern

no basis to disturb the initial decisions dismissing the appeals as withdrawn,

0679 ID, and for lack of jurisdiction, 0033 ID.

ORDER

In light of the foregoing, we deny the appellant’s petitions for review and

requests to reopen his probationary termination appeal. The initial decisions

dismissing the appeals as withdrawn and for lack of jurisdiction remain the final

decisions of the Board. 3

Because the appellant’s submissions are denied on other grounds, we do not make a

determination on the timeliness of his petitions for review. See Metzenbaum v. General

Services Administration, 96 M.S.P.R. 104, ¶ 1 n.1 (2004) (declining to address the

timeliness of the appellant’s petitions for appeal and review where the Board dismissed

the appeal for lack of jurisdiction). In the two appeals, the appellant has filed a total of

20 motions for leave to file additional evidence and argument regarding, among other

things, various mental health conditions that effected his probationary termination, the

voluntariness of the settlement agreement, and delays in filing with the Board. 0033

PFR File, Tabs 6, 8, 13, 19, 23, 26, 29, 31, 34; 0679 PFR File, Tabs 9, 11, 14, 17, 21,

25, 29, 32, 35, 37, 40. The appellant also seeks to file additional pleadings regarding

the terms of the parties’ settlement agreement, various purported prohibited personnel

practices, and the application of Board caselaw and regulations. 0033 PFR File, Tabs 6,

8, 13, 19, 23, 26, 29, 31, 34; 0679 PFR File, Tabs 9, 11, 14, 17, 21, 25, 29, 32, 35, 37,

40. Once the record closes on review, no additional evidence or argument will be

accepted unless it is new and material as defined in 5 C.F.R. § 1201.115(d) and the

party submitting it shows that the evidence or argument was not readily available before

the record closed. See 5 C.F.R. § 1201.114(k). Here, the appellant has not explained

why he could not have filed the evidence and argument prior to the close of the record

on review and/or why its consideration would provide a basis to disturb the initial

decisions. Accordingly, the appellant’s motions are denied.

NOTICE OF APPEAL RIGHTS 4

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

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:

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.

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. 5 The court of appeals must receive your

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