# Theresa Checkley v. Department of Veterans Affairs

> Merit Systems Protection Board · June 14, 2022

URL: https://www.frixlaw.com/law-library/cases/9373642

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 14, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

THERESA L. CHECKLEY, DOCKET NUMBER
Appellant, AT-1221-16-0454-W-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
3

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,

2
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.
4

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).
5

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:

3
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.
6

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
7

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
8

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
following address:
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.

4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9

Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9373642. Public record. Not legal advice.