The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN H. HALL, DOCKET NUMBER
Appellant, DC-0752-15-1063-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 23, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven H. Hall, Chesapeake Beach, Maryland, pro se.
Letitia Byers and Mary K. Monahan, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this indefinite suspension appeal based on the doctrine of res judicata.
For the reasons set forth below, we VACATE the initial decision and DISMISS
the appeal as settled.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
ANALYSIS
¶2 This appeal concerns an indefinite suspension beginning in May 2013.
Initial Appeal File (IAF) Tab 1, Tab 7 at 39-40. The appellant previously
contested this same indefinite suspension through a prior appeal that was
dismissed with prejudice after the appellant requested to withdraw it to pursue the
matter through the equal employment opportunity complaint process. Hall v.
Department of Homeland Security, MSPB Docket No. DC-0752-13-0723-I-1,
Initial Decision (July 16, 2013). The administrative judge found that the doctrine
of res judicata barred the appellant from litigating his indefinite suspension in
this second appeal. IAF, Tab 16, Initial Decision. After the initial decision was
issued, the parties entered into a settlement agreement. Petition for Review
(PFR) File, Tab 3 at 17‑21.
¶3 The appellant has filed a petition for review disputing the merits of the
underlying indefinite suspension and arguing, among other things, that his
medication caused him to err in withdrawing his previous appeal. PFR File,
Tab 1. The agency has opposed the petition for review, arguing that the
administrative judge appropriately dismissed the appeal under the doctrine of res
judicata and, in the alternative, that the appeal should be dismissed pursuant to
the terms of the settlement agreement. PFR File, Tab 3 at 10-11.
¶4 The Board can review a settlement agreement entered into the record by the
parties to determine its effect on a personnel action before it and any waiver of
appeal rights. Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶ 7 (2006).
The settlement agreement expressly refers to this appeal and states, in relevant
part, that the appellant will withdraw and waive any and all Board appeals. PFR
File, Tab 3 at 17. The parties expressed their intent to have the settlement
agreement entered into the record for enforcement by the Board. Id. at 21.
¶5 We find that the appellant knowingly and voluntarily signed the settlement
agreement, waived further appeal rights concerning the issues raised in this
appeal, and the waiver is enforceable. See Hall v. Department of Homeland
3
Security, MSPB Docket No. DC-0752-14-0243-I-1, Final Order (June 23, 2016).
We further find that the settlement agreement is lawful on its face, that it has
been freely entered into by the parties, and that the subject matter of the appeal—
an indefinite suspension of a Federal employee lasting more than 14 days—is
within the Board’s jurisdiction. See Gonzalez v. Department of Homeland
Security, 114 M.S.P.R. 318, ¶¶ 11-12 (2010); Stewart v. U.S. Postal Service,
73 M.S.P.R. 104, 107 (1997). Accordingly, we dismiss this appeal as settled and
the settlement agreement is entered into the record for enforcement by the Board.
Because the appeal is settled, we need not reach the other issues raised by the
appellant in his petition for review. Swidecki, 101 M.S.P.R. 110, ¶ 26.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 2
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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 your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
2
The administrative judge did not provide the appellant with notice of his mixed-case
rights to appeal from the initial decision on his discrimination claims to the Equal
Employment Opportunity Commission and/or the appropriate U.S. district court. This
was error, but it does not constitute reversible error because we notify the appellant of
his mixed‑case appeal rights in this Final Order. See Grimes v. U.S. Postal Service,
39 M.S.P.R. 183, 186-87 (1988).
4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 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 EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 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 district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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
5
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.