Opinion

Taylor M. Sharpe v. Environmental Protection Agency

Court
Merit Systems Protection Board
Filed
Mar 20, 2015
Status
Unpublished
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TAYLOR M. SHARPE, DOCKET NUMBER

Appellant, DA-0752-14-0187-I-1

v.

ENVIRONMENTAL PROTECTION DATE: March 20, 2015

AGENCY,

Agency.

THIS FINAL O RDER IS NONPRECEDENTIAL *

Jeff Letts, Trenton, New Jersey, for the appellant.

Sherry Lynn Brown-Wilson, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has petitioned for review of the September 22, 2014 initial

decision in this appeal. Initial Appeal File (IAF), Tab 18, Initial Decision;

*

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we

DISMISS the petition for review as settled.

¶2 After the filing of the petition for review, the parties submitted a document

entitled “SETTLEMENT AGREEMENT” signed and dated January 12, 2015.

PFR File, Tabs 5-6. The document provides, among other things, for the

dismissal of the petition for review. PFR File, Tabs 5-6.

¶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

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

PFR File, Tab 5 at 1.

¶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 removal of a full time federal employee in

the competitive service—is within the Board’s jurisdiction under 5 U.S.C.

§§ 7511(a)(1), 7512(2), 7513(d), and 7701(a). See IAF, Volume II, Tab 6,

subtab 4a. Accordingly, we find that dismissal of the petition for review “with

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

appropriate under these circumstances, and we accept the settlement agreement

into the record for enforcement purposes.

3

¶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

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 the United States Court of Appeals for the

Federal Circuit to review this final decision. 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 your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with the court

no later than 60 calendar days after receipt by your representative. 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).

4

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). You may read

this law, as well as review the Board’s regulations and other related material, at

our website, http://www.mspb.gov. 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

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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