Opinion

Theresa Checkley v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 14, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THERESA L. CHECKLEY, DOCKET NUMBER

Appellant, AT-1221-16-0454-W-1

DEPARTMENT OF VETERANS DATE: June 14, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Theresa L. Checkley, Pearl, Mississippi, pro se.

Johnston B. Walker, Jackson, Mississippi, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her individual right of action (IRA) appeal as settled. Generally, we

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R.

§ 1201.113(b). However, we FORWARD the appellant’s allegations of agency

noncompliance with the settlement agreement to the Atlanta Regional Office for

docketing as a petition for enforcement.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant filed the instant IRA appeal alleging the agency retaliated

against her for making certain protected disclosures. Initial Appeal File (IAF),

Tab 1. On November 9, 2016, the parties executed a settlement agreement

resolving the IRA appeal, which they submitted to the administrative judge to

enter into the record for enforcement purposes. IAF, Tab 34 at 4-8. Pursuant to

the settlement agreement, the appellant agreed to withdraw her appeal, and the

agency agreed, among other things, to ensure that her ladder promotion was

correctly reflected on a Standard Form (SF) 50, that she would receive a

within-grade increase effective 1 year after her promotion, and that it would pay

her any resulting back pay with interest. Id. at 4-7.

¶3 In a November 10, 2016 initial decision, the administrative judge found that

the settlement agreement was lawful on its face and that it reflected that the

parties understood its terms and entered into it voluntarily. IAF, Tab 35, Initial

Decision (ID). She further found that the Board has jurisdiction over the

appellant’s appeal. ID at 2. Therefore, pursuant to the parties’ request, the

administrative judge accepted the settlement agreement into the record for

purposes of enforcement and dismissed the appeal as settled. Id.

¶4 On November 30, 2016, the appellant filed a “Response to Request for

Reopening” asking the Board to vacate the settlement agreement on the basis of

alleged misrepresentations by the agency and arguing that the agency failed to

correct her SF-50 and failed to pay her the appropriate amount of back pay and

interest. Petition for Review (PFR) File, Tab 1 at 3. The Clerk of the Board

docketed the appellant’s submission as a petition for review of the initial

decision. PFR File, Tab 2. Several days later, the appellant submitted a

supplemental pleading, which the Clerk of the Board accepted into the record,

alleging that the administrative judge and the Off ice of Special Counsel (OSC)

misconstrued her disclosures and asserting again that the agency has not provided

her a corrected SF-50. 2 PFR File, Tab 3 at 4-5, Tab 4. The agency responded in

opposition to the appellant’s petition for review, and the appel lant replied. PFR

File, Tabs 5-6. In her reply, the appellant argues that the agency breached the

settlement agreement and contends that she settled her appeal because the

administrative judge was “not properly reviewing all evidence” and excluded

“pertinent witness [sic] and involved parties from my case due to incorrect

disclosures she had before her.” PFR File, Tab 6 at 3, 5-6.

¶5 A settlement agreement is a contract between the parties and its terms are to

be interpreted as a question of contract law. Wofford v. Department of Justice,

The appellant also submitted a December 10, 2012 letter from the Defense Finance

and Accounting Service regarding an overpayment it was seeking to collect. PFR File,

Tab 3 at 6-10. Generally, the Board will not consider evidence submitted for the first

time on review absent a showing that it is both new and material. Okello v. Office of

Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009); 5 C.F.R. § 1201.115(d). Here,

although the overpayment letter is new, it is irrelevant to the validity of the settlement

agreement. Therefore, we do not consider it.

115 M.S.P.R. 468, ¶ 6 (2010). An appellant may challenge the validity of a

settlement agreement if she believes it was unlawful, involuntary, or the result of

fraud or mutual mistake. Id. Even if invalidity was not apparent at the time of

settlement, the agreement must be set aside if it is subsequently shown by new

evidence that the agreement was tainted with invalidity by fraud or

misrepresentation. Id. However, the party challenging the validity of a

settlement agreement bears a heavy burden of showing a basis for invalidation.

Id.

¶6 Here, the appellant appears to allege that the settlement agreement is invalid

based on misrepresentation by the agency because it has not pr ovided her a

corrected SF-50 or the appropriate amount of back pay and interest pursuant to

the settlement agreement. PFR File, Tab 1 at 3, Tab 6 at 6. However, the

agency’s alleged noncompliance with the settlement agreement, even if true, is

insufficient on its own to establish that the agency made any misrepresentation in

the course of negotiating the settlement agreement. See Wofford, 115 M.S.P.R.

468, ¶ 8. Likewise, the appellant’s allegations that OSC misconstrued her

disclosures and that the administrative judge somehow erred in the handling of

her appeal have no bearing on the validity of the settlement agreement. Even if

true, these allegations do not suggest that the settlement agreement is unlawful,

involuntary, or the result of fraud or mutual mistake. Id. In sum, there is no

evidence to support the appellant’s bare assertions of invalidity, and we find no

basis to invalidate the agreement.

¶7 The appellant’s allegations that the agency failed to comply with the

settlement agreement must be raised in the first instance before the regional office

that accepted the agreement into the record. Harris v. U.S. Postal Service,

59 M.S.P.R. 222, 225 (1993). Therefore, we forward the appellant’s allegations

of noncompliance to the regional office for adjudication as a petition for

enforcement. Id.; 5 C.F.R. § 1201.182(a).

NOTICE OF APPEAL RIGHTS 3

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. ____ , 137 S. Ct. 1975 (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. 4 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