Opinion

Estate of Mary Allred v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 8, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ESTATE OF MARY A. ALLRED, DOCKET NUMBER

Appellant, SF-1221-18-0462-X-1

DEPARTMENT OF VETERANS DATE: March 8, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy A. Bridge, Wellston, Michigan, for the appellant.

La’Chelle M. Woodert, Esquire, Loma Linda, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

¶1 This compliance proceeding was initiated by the appellant’s April 30, 2019

petition for enforcement of the Board’s February 11, 2019 Order in Estate of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential o rders,

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 B oard

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

Mary A. Allred v. Department of Veterans Affairs, MSPB Docket No. SF-1221-

18-0462-W-2, in which the administrative judge accepted the parties’ settlement

agreement into the record for enforcement purposes. On June 17, 2019, the

administrative judge issued a compliance initial decision finding the agency not

in compliance with the settlement agreement. Estate of Mary A. Allred v.

Department of Veterans Affairs, MSPB Docket No. SF-1221-18-0462-C-1,

Compliance File (CF), Tab 8, Compliance Initial Decision (CID). For the reasons

discussed below, we find the agency in compliance and DISMISS the petition for

enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On April 18, 2018, the appellant filed an individual right of action appeal

alleging that the agency retaliated against her for opposing unlawful promotion

practices by agency managers. 3 Estate of Mary A. Allred v. Department of

Veterans Affairs, MSPB Docket No. SF-1221-18-0462-W-1, Initial Appeal File

(IAF), Tab 1 at 2. On November 1, 2018, the administrative judge dismissed the

appellant’s appeal without prejudice. IAF, Tab 34, Initial Decision at 1-2. On

January 29, 2019, the appellant’s appeal was refiled under MSPB Docket

No. SF-1221-18-0462-W-2, effective January 2, 2019. 4 Estate of Mary A. Allred

v. Department of Veterans Affairs, MSPB Docket No. SF-1221-18-0462-W-2,

Refiled Appeal File (RAF), Tab 3 at 1. On February 11, 2019, the administrative

judge, pursuant to a settlement agreement between the parties, issued an initial

decision that dismissed the appeal as settled and accepted the settlement

The Estate of Mary A. Allred was substituted as the proper appellant in this litigation

on January 29, 2019, due to the December 13, 2018 death of the appellant. Estate of

Mary A. Allred v. Department of Veterans Affairs, MSPB Docket No. SF-1221-18-0462-

W-2, Refiled Appeal File (RAF), Tab 3 at 1-2.

The delay between the effective date and reopening date was due to the lapse in

appropriations for the Board between December 22, 2018, and January 25, 2019 . RAF,

Tab 3 at 1.

agreement into the record for enforcement purposes. 5 RAF, Tab 7, Initial

Decision (ID). The initial decision became the final decision of the Board on

March 18, 2019, after neither party petitioned for administrative review. ID at 3.

¶3 On April 30, 2019, the appellant filed a petition for enforcement of the

settlement agreement, alleging that the agency had not yet paid it the sum of

$50,000.00 as called for in the agreement. CF, Tab 1. On June 17, 2019, the

administrative judge issued a compliance initial decision finding the agency not

in compliance based on its failure to pay the appellant the $50,000.00 by the date

of the decision. CID at 6.

¶4 After neither party petitioned for review of this finding, the case was

referred to the Board for a final decision on the issues of compliance, p ursuant to

5 C.F.R. § 1201.183(b)-(c). Estate of Mary A. Allred v. Department of Veterans

Affairs, MSPB Docket No. SF-1221-18-0462-X-1, Compliance Referral File

(CRF), Tab 1.

ANALYSIS

¶5 The Board has authority to enforce a settlement agreement that has been

entered into the record for enforcement purposes in the same manner as any final

Board decision or order. Vance v. Department of the Interior, 114 M.S.P.R.

679, ¶ 6 (2010). A settlement agreement is a contract, and the Board will

therefore adjudicate a petition to enforce a settlement agreement in accordance

with contract law. Allen v. Department of Veterans Affairs, 112 M.S.P.R. 659,

¶ 7 (2009), aff’d, 420 F. App’x 980 (Fed. Cir. 2011). When, as here, an appellant

alleges noncompliance with a settlement agreement, the agency must produce

relevant, material, and credible evidence of its compliance with the agreement.

Vance, 114 M.S.P.R. 679, ¶ 6. The ultimate burden, however, remains with the

The appellant also agreed as part of the settlement agreement to withdraw her pending

petition for review in a separate appeal, Estate of Mary A. Allred v. Department of

Veterans Affairs, MSPB Docket No. SF-1221-17-0621-W-1. RAF, Tab 6. That request

was addressed in a separate nonprecedential order under that docket number.

appellant, as the party seeking enforcement, to prove breach by a preponderance

of the evidence. Id.

¶6 The agency’s outstanding compliance issue was its obligation to pay the

appellant the sum of $50,000.00. On July 26, 2019, the appellant informed the

Board that the agency paid it the full amount owed on July 10, 2019, and as a

result requested that the Board dismiss its petition for enforcement. CRF, Tab 2

at 4.

¶7 Accordingly, in light of the appellant’s submission, the Board finds the

agency in compliance and dismisses the petition for enforcement. This is the

final decision of the Merit Systems Protection Board in this co mpliance

proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)

(5 C.F.R. § 1201.183(c)(1)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 6

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

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 i ndicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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 bel ow 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:

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 secur ity. 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 deliver y 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 Protectio n

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. 7 The court of appeals must receive your

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

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