Opinion

Nancy Geehan v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Mar 30, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NANCY O. GEEHAN, DOCKET NUMBERS

Appellant, PH-0752-15-0239-C-1

PH-1221-16-0014-C-1

DEPARTMENT OF AGRICULTURE,

Agency. DATE: March 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant.

Arlene R. Yang, Esquire, and Suzanne K. Roten, Esquire, San Diego,

California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial

decision in these joined appeals, which dismissed her petition for enforcement for

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.

lack of jurisdiction. 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 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 these appeals, 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 compliance initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 In these joined appeals, the parties reached a settlement agreement pursuant

to which the appellant agreed, among other things, to dismiss al of both appeals

with prejudice. Geehan v. Department of Agriculture, MSPB Docket No.

PH-1221-16-0014-W-1, Initial Appeal File (0014 IAF), Tab 24 at 7. The parties

did not request that the Board enter the agreement into the record for

enforcement. 0014 IAF, Tab 24 at 9. They instead provided that, “Compliance

issues shall be governed by the applicable [Equal Employment Opportunity

Commission (EEOC)] regulations,” citing 29 C.F.R. § 1614.504. Id.

¶3 The administrative judge issued an initial decision, dismissing the appeals

as withdrawn. 0014 IAF, Tab 25, Initial Decision (ID). He observed that,

consistent with the agreement, any compliance issues would be raised pursuant to

the equal employment opportunity (EEO) process. ID at 2 n.*. The

administrative judge further stated that because he did not make a finding on

Board jurisdiction, the agreement was not enforceable by the Board. Id. This

statement was accurate at the time the initial decision was issued. See Delorme v.

Department of Interior, 124 M.S.P.R. 123, ¶ 12 (2017) (explaining that the Board

previously would not enter a settlement agreement into the record for

enforcement purposes unless, as relevant here, the subject matter of the appeal

was within the Board’s jurisdiction).

¶4 The Board denied the appellant’s subsequent petition fo r review, in which

she requested that the Board dismiss the appeal as settled instead of as

withdrawn. Geehan v. Department of Agriculture, MSPB Docket No. PH-1221-

16-0014-W-1, Final Order (Dec. 19, 2016) (Final Order). In light of the parties’

decision to invoke EEOC regulations for the enforcement of their settlement

agreement, rather than have it entered into the record of the appellant’s Board

appeal for enforcement purposes, the Board found that the language used by the

administrative judge to describe the nature of the dismissal amounted to a

distinction without a difference. Id.

¶5 Following the Board’s Final Order, the Board issued a decision revisiting

its prior law regarding its enforcement authority. Delorme, 124 M.S.P.R. 123,

¶¶ 9-21. The Board found its enforcement authority was not dependent on a prior

finding of Board jurisdiction over the underlying matter appealed. Id., ¶¶ 13-21.

¶6 The appellant subsequently filed this petition for enforcement in which she

argued that the agency had breached the parties’ settlement agreement. Geehan v.

Department of Agriculture, MSPB Docket No. PH-0752-15-0239-C-1,

Compliance File (CF), Tab 1. Because the parties had not requested that the

Board enter their settlement agreement into the record for the purpose of

enforcement, the administrative judge ordered the appellant to show cause why

the petition for enforcement should not be dismissed for lack of jurisdiction. CF,

Tab 2. In response, the appellant argued that because the agreement was part of

the record, language specifying the Board’s enforcement authority was

unnecessary. CF, Tab 3 at 4-5, 7. She also argued that she reasonably assumed

that the Board would have enforcement authority because the agreement arose out

of the Board’s Mediation Appeals Program (MAP). Id. at 5-6. The agency

responded in opposition. CF, Tab 5.

¶7 The administrative judge issued a compliance initial decision, dismissing

the appellant’s petition for enforcement for lack of jurisdiction. CF, Tab 6,

Compliance Initial Decision (CID). He found that the parties had unambiguously

agreed to enforcement pursuant to EEO procedures and did not seek to place the

agreement into the Board’s record for enforcement purposes. CID at 4-5;

5 C.F.R. § 1201.182(a). He further determined that the Board’s decision in

Delorme did not change the outcome because, regardless of the Board’s

jurisdiction over enforcement matters generally, the parties had not agreed to

Board enforcement. CID at 3 n.2.

¶8 In her petition for review of the compliance initial decision, the appellant

again reiterates her arguments below. Geehan v. Department of Agriculture,

MSPB Docket No. PH-0752-15-0239-C-1, Compliance Petition for Review

(CPFR) File, Tab 1. The agency has responded to the petition for review, and the

appellant has replied. CPFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 The Board will incorporate a settlement agreement into the record and

enforce its terms if the parties intended that the agreemen t be enforced by the

Board and the agreement is lawful on its face and was freely reached and

understood by the parties. Delorme, 124 M.S.P.R. 123, ¶¶ 10, 12-13, 21; Bays v.

Department of the Army, 54 M.S.P.R. 469, 470-71 (1992); 5 C.F.R.

§ 1201.182(a). As discussed above, at the time the parties entered into their

settlement agreement, the Board also required a finding of Board jurisdiction over

the subject matter of the appeal. Delorme, 124 M.S.P.R. 123, ¶ 12. That

requirement was later eliminated in the Delorme decision. Id., ¶¶ 13-21.

¶10 The administrative judge found that the parties did not intend that the

agreement be enforced by the Board. CID at 5. We agree. The settlement

agreement references 29 C.F.R. § 1614.504, which provides that an employee

may seek enforcement of a settlement agreement reached during the EEO process

by first contacting the agency’s EEO director and, if dissatisfied, seeking review

by the EEOC. 0014 IAF, Tab 24 at 9. It identifies the individual at the agency

the appellant could contact if she “believe[d] that the Agency has not complied”

with the agreement. Id. As the administrative judge found, this provision

unambiguously reflected the intent of the parties to seek enforcement in another

forum. See Smith v. Department of the Interior, 113 M.S.P.R. 592, ¶ 8 (2010)

(observing that the plain and unambiguous terms of a settlement agreement

control its interpretation); Grubb v. Department of the Interior, 76 M.S.P.R. 639,

642-43 (1997) (finding that an administrative judge erred by entering an

agreement into the record for enforcement purposes when the agreement provided

for enforcement pursuant to 29 C.F.R. § 1614.504). The appellant suggests that

the agreement’s enforcement provision is not inconsistent with enforcement

before the Board. CPFR File, Tab 1 at 8. We are not persuaded. 3

¶11 The appellant argues that she and her nonattorney representative reasonably

believed that the agreement would be enforceable by the Board because it arose

out of the Board’s MAP process and the MAP mediator did not alert the appellant

to the enforcement issue. CPFR File, Tab 1 at 6; CF, Tab 3 at 5-6. We decline to

find that the MAP mediator had an affirmative duty to inform the appellant that

the Board would lack enforcement over the agreement. Nonetheless, to the extent

The appellant has indicated that she is already pursuing enforcement before the

EEOC’s Office of Federal Operations (OFO). CPFR File, Tab 1 at 8. She argues that

OFO lacks sufficient enforcement authority because it cannot order the Board to

enforce the agreement. Id.; CF, Tab 3 at 8. We agree with the administrative judge that

we cannot interpret the agreement as permitting Board enforcement on this basis. CID

at 5; see Flores v. U.S. Postal Service, 115 M.S.P.R. 189, ¶ 10 (2010) (explaining that

the Board has no authority to unilaterally modify the terms of the parties’ settlement

agreement).

that the appellant is arguing that she intended for the Board to have enforcement

authority, we cannot consider this parol evidence of her intent because the

agreement is unambiguous. Flores v. U.S. Postal Service, 115 M.S.P.R. 189, ¶ 10

(2010); see Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981)

(explaining that the appellant is responsible for the errors of his chosen

representative). In any event, as the appellant acknowledges, in dismissing the

underlying appeal, the administrative judge clearly stated in the initial decision

that the settlement agreement was not enforceable by the Board. ID at 2 n.* ;

CPFR File, Tab 1 at 6-7.

¶12 The appellant also asserts that the administrative judge incorrectly stated

that the reason the Board could not enforce the agreement was because he had not

made a finding of Board jurisdiction. CPFR File, Tab 1 at 6-7; ID at 2 n*. As

discussed above, this statement was accurate at the time that it was made. The

subsequent elimination of the jurisdictional requirement for Board enforcement is

not a basis for setting aside the agreement. Delorme, 124 M.S.P.R. 123, ¶¶ 13,

21. That change did not eliminate the requirement that the parties intended that

the Board have enforcement authority, something that is lacking here . Id.; Bays,

54 M.S.P.R. at 470-71; 5 CFR § 1201.182(a).

¶13 Accordingly, we affirm the compliance initial decision that dismissed the

appellant’s petition for enforcement for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 4

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

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 ma tter.

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:

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. 5 The court of appeals must receive your petition for

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.

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