The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELLODY E. HUNTLEY, DOCKET NUMBER
Appellant, CH-0752-19-0568-I-2
v.
SOCIAL SECURITY DATE: June 21, 2022
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Mellody E. Huntley, Glendale Heights, Illinois, pro se.
James Hail, Esquire, Jordan Stein, and Linda M. Januszyk, Chicago,
Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 ar e 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
the Central Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant was a Legal Assistant with the agency’s Office of Hearing
Operations. Huntley v. Social Security Administration, MSPB Docket No.
CH-0752-19-0568-I-1, Initial Appeal File (IAF), Tab 139 at 16. In August 2019,
the appellant filed an application for a disability retirement annuity with the
Office of Personnel Management (OPM). Id. at 35, Tab 151 at 32; Huntley v.
Social Security Administration, MSPB Docket No. CH-0752-19-0568-I-2, Appeal
File (I-2 AF), Tab 10 at 44. Effective September 9, 2019, the agency removed
her under chapter 75 of title 5 for conduct unbecoming a Federal employee and
failure to follow instructions. IAF, Tab 139 at 16-36. She subsequently filed a
Board appeal challenging her removal. IAF, Tab 1 at 6-12.
¶3 In November 2019, OPM approved the appellant’s application for disability
retirement. IAF, Tab 164 at 4-6. At the appellant’s request, the administrative
judge dismissed the appeal without prejudice, pending OPM’s processing of the
appellant’s annuity. IAF, Tab 162 at 3, Tab 163 at 1, Tab 165 at 2-3. She
subsequently refiled her appeal, alleging she “never received [her] retirement
settlement agreement.” I-2 AF, Tab 1 at 3.
¶4 Following an order to produce the alleged settlement agreement, the
administrative judge issued an initial decision dismissing the appeal. I-2 AF,
Tab 8 at 2, Tab 17, Initial Decision (ID) at 1-2. The administrative judge found
that the appellant failed to produce a copy of the alleged settlement agreement or
any evidence of an oral agreement and failed to identify how the agency breached
the alleged settlement agreement. ID at 5-6. Accordingly, the administrative
judge found that the Board lacked jurisdiction over “this compliance appeal to
enforce the terms” of an alleged settlement agreement. ID at 6.
3
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. Among other things, she references the “Retirement Annuity
Settlement Agreement” and reasserts that her removal was “wrongful.” Id. at 5-6.
The agency has responded to her petition for review, and the appellant has replied
to its response. 2 PFR File, Tabs 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred by not adjudicating the appellant’s removal.
¶6 The administrative judge dismissed the appeal, finding the appellant failed
to produce any evidence of a settlement agreement over which the Board might
have jurisdiction. ID at 4-6. In addition to reasserting her settlement agreement
claim, the appellant on review challenges her removal, which was the subject of
her original Board appeal. IAF, Tab 1 at 6-12; PFR File, Tab 1 at 5.
¶7 The Board has jurisdiction over the removal of a tenured Federal employee.
5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d); see Epley v. Inter-American
Foundation, 122 M.S.P.R. 572, ¶ 14 (2015) (finding that an individual who met
the definition of “employee” under 5 U.S.C. § 7511(a)(1)(A) was entitled to
appeal her removal to the Board). Under 5 U.S.C. § 7701(j), an individual’s
status under any retirement system may not be taken into account in a case
2
The appellant has additionally filed three pleadings on review apparently seeking to
change her name in connection with this appeal. PFR File, Tab 21 at 4, Tab 23 at 4,
Tab 32 at 4. However, the various requests differ on what exact name she prefers. Id.
Therefore, to the extent the appellant is seeking to change her name, we deny her
request for lack of clarity.
To the extent the appellant is attempting in these pleadings to supplement her
arguments on review, raise new matters, or initiate the settlement process, we decline to
consider them. PFR File, Tab 23 at 4-6, Tab 32 at 4-5. As the Office of the Clerk of
the Board previously advised the parties, once the record closes on review, no
additional evidence or argument will be accepted unless it is new and material and the
party submitting it shows that it was not readily available before the record closed.
PFR File, Tab 2 at 1-2; 5 C.F.R. § 1201.114(k). The appellant has submitted her
pleading after the close of the record and has not made the required showing. The
appellant may wish to raise her request to engage in settlement discussions with the
agency and the administrative judge on remand.
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involving a removal from the service. Thus, when an agency issues its removal
decision before an appellant retires, the Board retains jurisdiction over the
appellant’s removal. Mays v. Department of Transportation, 27 F.3d 1577,
1579-81 (Fed. Cir. 1994); Paula v. Social Security Administration, 119 M.S.P.R.
138, ¶ 12 (2013). However, if an agency rescinds its removal decision as the
result of an employee’s voluntary decision to retire retroactive to the effective
date of the removal, the removal may be moot, thus depriving the Board of
jurisdiction. Jenkins v. Merit Systems Protection Board, 911 F.3d 1370, 1374-75
(Fed. Cir. 2019); Cooper v. Department of the Navy, 108 F.3d 324, 325-26
(Fed. Cir. 1997).
¶8 There appears to be no dispute that the appellant is an employee under
5 U.S.C. § 7511(a)(1)(A). IAF, Tab 139 at 16, 30-33. The appellant’s removal
here was effected September 9, 2019. Id. at 16. There is no indication in the
record that the agency rescinded the removal. However, OPM approved and
began payments on the appellant’s disability retirement annuity. IAF, Tab 164;
I-2 AF, Tab 11 at 48-52. Accordingly, we must remand this appeal for a
determination of whether the Board retains jurisdiction over her removal under
5 U.S.C. § 7701(j), or if the removal is now moot. If the administrative judge
determines the Board has jurisdiction over the removal, she should schedule the
appellant’s requested hearing on the merits. IAF, Tab 1 at 2.
The administrative judge correctly determined that the Board has no jurisdiction
over the appellant’s alleged settlement agreement.
¶9 The appellant on review suggests that the agency breached the “Retirement
Annuity Settlement Agreement,” which she states she “never received .” PFR
File, Tab 1 at 5, Tab 5 at 4. The administrative judge found that the appellant did
not produce a settlement agreement, show evidence of an oral settlement
agreement, or demonstrate how the agency breached the alleged settlement
agreement. ID at 6. The Board has jurisdiction to enforce a settlement agreement
that has been entered into the record for that purpose. Delorme v. Department of
5
the Interior, 124 M.S.P.R. 123, ¶¶ 9-21 (2017). Because neither party submitted
an agreement or asserted the Board has authority to enforce it, we agree with the
administrative judge that the Board lacks jurisdiction over the alleged breach. 3
¶10 In making our decision, we have not considered the documents the appellant
has submitted with her petition for review. PFR File, Tab 1 at 10-38, Tab 5
at 8-29, Tab 6 at 4-6. The Board will grant a petition for review when, among
other reasons, new and material evidence is available that, despite t he petitioner’s
due diligence, was not available when the record closed. Ellis v. U.S. Postal
Service, 121 M.S.P.R. 570, ¶ 6 (2014); 5 C.F.R. § 1201.115(d). The documents
submitted by the appellant predate the close of record below, and the appellant
has not explained why she did not submit them at that time. Ellis, 121 M.S.P.R.
570, ¶ 6; 5 C.F.R. § 1201.115(d); IAF, Tab 8 at 3; see Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 213-14 (1980) (explaining that under 5 C.F.R.
§ 1201.115, the Board generally will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence). Further, to the extent the documents are already in the record below,
they are not new evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980).
3
After the appellant refiled her appeal, she expressed disagreement with OPM’s
processing of her retirement annuity. For example, she questioned whether she should
have been allowed to take a regular retirement and suggested there was a discrepancy in
her benefits. I-2 AF, Tab 9 at 4, 22. She appears to re-raise these claims on review.
PFR File, Tab 1 at 5, Tab 5 at 4-5. To the extent the appellant disagrees with OPM’s
handling of her annuity and related benefits, she may file a separate appeal naming
OPM as the responding agency. We express no opinion as to the Board’s jurisdiction
over such an appeal. Generally, the Board has jurisdiction over retirement matters only
after OPM has issued a reconsideration decision or the appellant has repeatedly
requested such a decision and the evidence indicates that OPM does not intend to issue
one. Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632, ¶ 5 (2012). The
record before us does not contain a reconsideration decision.
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ORDER
¶11 For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.