The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEROY ALFORD, DOCKET NUMBERS
Appellant, DC-0752-08-0070-A-5
DC-0432-09-0770-A-2
v.
DEPARTMENT OF DEFENSE,
Agency. DATE: January 8, 2015
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John J. Rigby, Esquire, Arlington, Virginia, for the appellant.
Robert H. Schapler, Esquire, and William Christopher Horrigan,
Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has petitioned for review of two initial decisions granting the
appellant’s motions for attorney fees originating from two separate petitions for
appeal. See Alford v. Department of Defense, MSPB Docket No. DC-0752-09-
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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0770-A-2 (A-2), Initial Decision (June 6, 2013); A-2, Petition for Review (PFR)
File, Tab 1; Alford v. Department of Defense, MSPB Docket No. DC-0752-08-
0070-A-5 (A-5), Initial Decision (June 18, 2013); A-5, PFR File, Tab 1. For the
reasons set forth below, we VACATE the initial decisions and DISMISS the
motions for attorney fees as settled.
¶2 After the agency filed the referenced petitions for review, the parties
submitted a document entitled “VOLUNTARY STIPULATION OF
SETTLEMENT AND AGREED ORDER OF DISMISSAL” executed by the
parties on July 16, 2013. A-5, PFR File, Tab 3. The document provides, among
other things, for the appellant to “[w]ithdraw with prejudice all cases Appellant
has outstanding with the Merit Systems Protection Board . . . .” Id., ¶ 3(b). 2
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, understand its terms, and intend
2
We note that the parties disagree over interpretation of the withdrawal provision in
this global settlement agreement. A-5, PFR File, Tabs 1-2, 5-10. In our view, the plain
meaning of the language in this agreement requires the appellant, and not the agency, to
withdraw all pending matters before the Board. A-5, PFR File, Tab 3, ¶ 3(b). At the
time the settlement agreement was executed, the appellant’s attorney fee motions were
in dispute through the agency’s filing of petitions for review of these decisions and the
Board had not issued a final decision on these petitions. Thus, the appellant’s attorney
fee motions were still pending. To the extent that the parties believe there remains
noncompliance with terms in this settlement agreement, they may exercise the right to
address those matters in a petition for enforcement or as a separate petition for review
requesting vacature of the underlying settlement agreement based on fraud,
misrepresentation or mutual mistake. See 5 C.F.R. § 1201.183. We note, moreover,
that the parties elected not to include unequivocal language in the settlement agreement
specifically stating whether they wanted the Board to vacate the initial decisions and
dismiss the motions for attorney fees as settled or, as the appellant urges, to only
dismiss the petitions for review. See A-5, PFR File, Tabs 1, 7. In the absence of
clearly stated language in the settlement agreement, the Board will interpret a disputed
provision first according to the plain meaning of the words set out. Knight v.
Department of the Treasury, 113 MSPR 548, 554 (2010). In construing the terms of a
settlement agreement, the words of the agreement itself are of paramount importance
and must be read as part of an organic whole, according reasonable meaning to all of
the contract terms to identify and give weight to the spirit or essence of the contract as
intended by the parties. Id.
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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). We find here that
the parties have, in fact, entered into a settlement agreement, that they understand
the terms, and that they want the Board to enforce those terms. See MSPB
Docket No. DC-0432-13-0390-I-1, Initial Appeal File, Tab 52 (Hearing Compact
Disc).
¶4 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, whether the parties freely entered into it, and whether the subject
matter of this appeal is within the Board’s jurisdiction, that is, whether a law,
rule, or regulation grants the Board the authority to decide such a matter. See
Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107 (1997). We find here that
the agreement is lawful on its face, that the parties freely entered into it, and that
the subject matter of this appeal—the performance based removal of a full time
employee in the federal service—is within the Board’s jurisdiction under 5 U.S.C.
§§ 4303 and 7701. See MSPB Docket No. DC-0752-09-0770-I-4, Initial Appeal
File, Tab 3, Subtab 4(b). Accordingly, we find that dismissal of the motions for
attorney fees “with prejudice to refiling” (i.e., the parties normally may not refile
this appeal) and vacating the initial decisions under which they are based is
appropriate under these circumstances, and we accept the settlement agreement
into the record for enforcement purposes.
¶5 This is the final order of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulation, section 1201.113 (5 C.F.R. § 1201.113)
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
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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 TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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 as well as 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.