Opinion

Pamela Long v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 13, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PAMELA LONG, DOCKET NUMBERS

Appellant, CH-1221-18-0286-C-1

CH-1221-18-0286-W-1

DEPARTMENT OF VETERANS

AFFAIRS, DATE: July 13, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Pamela Long, Humboldt, Tennessee, pro se.

Beth K. Donovan, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions in these

appeals, which dismissed her individual right of action (IRA) appeal as settled,

and dismissed her petition for enforcement of that settlement agreement.

Generally, we grant petitions such as these only in the following circumstances:

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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; t he 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 JOIN them for adjudication on review

under 5 C.F.R. § 1201.36. 2 We conclude that the petitioner has not established

any basis under section 1201.115 for granting the petition for review in her

compliance appeal, MSPB Docket No. CH-1221-18-0286-C-1. Therefore, we

DENY the petition for review in that appeal and AFFIRM the initial decision,

which is now the Board’s final decision on the appellant’s petition for

enforcement. 5 C.F.R. § 1201.113(b). The appellant’s petition for review of the

initial decision dismissing as settled her IRA appeal, MSPB Docket No. CH-

1221-18-0286-W-1, is DISMISSED as untimely filed without good cause shown.

5 C.F.R. § 1201.114(e), (g).

BACKGROUND

¶2 The agency removed the appellant from her position as a GS-11

Perfusionist, and she filed an appeal. Long v. Department of Veterans Affairs,

MSPB Docket No. CH-0714-18-0223-I-1, Initial Appeal File, Tab 1. The agency

subsequently rescinded her removal, and the administrative judge dismissed the

Joinder of two or more appeals filed by the same appellant is appropriate when doing

so would expedite processing of the cases and not adversely affect the interests of the

parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.

§ 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria, and

therefore join them. See Tarr, 115 M.S.P.R. 216, ¶ 9.

appeal as moot. Long v. Department of Veterans Affairs, MSPB Docket No. CH-

0714-18-0223-I-1, Initial Decision (0223 ID) (June 12, 2018). That initial

decision became the Board’s final decision when neither party filed a petition for

review by July 17, 2018. 0223 ID at 4; see 5 C.F.R. § 1201.113(a).

¶3 The appellant also filed an IRA appeal. Long v. Department of Veterans

Affairs, MSPB Docket No. CH-1221-18-0286-W-1, Initial Appeal File (IAF),

Tab 1. The parties reached a settlement agreement in that matter. IAF, Tab 14.

The administrative judge found that the agreement was lawful on its face and that

the parties had freely entered into it, understood its terms, and intende d to have

the agreement entered into the record for enforcement purposes. IAF, Tab 16,

Initial Decision (ID). She accepted the settlement agreement into the record for

enforcement purposes and dismissed the appeal as settled. Id. That initial

decision became the Board’s final decision when neither party filed a petition for

review by August 20, 2018. Id. at 4; see 5 C.F.R. § 1201.113(a).

¶4 On November 25, 2018, the appellant filed a petition for enforcement of the

parties’ settlement agreement. Long v. Department of Veterans Affairs, MSPB

Docket No. CH-1221-18-0286-C-1, Compliance File (CF), Tab 1. She alleged the

following: (1) the agency and her attorneys induced her to sign the settlement

agreement through fraud, misrepresentation, and/or a threat to withdraw or alter

the terms of the agreement; and (2) the agency breached the agreement when it

failed to provide her a neutral employment reference, resulting in four

nonselections for agency positions. CF, Tab 13 at 1-2. 3

¶5 The administrative judge dismissed the appellant’s petition for enforcement,

finding that the appellant was not coerced into signing the agreement. CF,

Tab 26, Compliance Initial Decision (CID) at 5-7. She rejected the appellant’s

argument that the statutory revocation provisions of the Age Discrimination in

The appellant also alleged that the agency had failed to reinstate her health, dental,

life, and vision insurance. CF, Tab 1 at 4, Tab 13 at 2. She withdrew these claims at

the close of record conference, asserting that they were resolved. CF, Tab 13 at 2.

Employment Act (ADEA) or the Older Workers’ Benefits Protection Act

(OWBPA) applied in this case because there was no age discrimination claim set

forth in the underlying IRA appeal. CID at 7-8. Alternatively, the administrative

judge found that, even if the ADEA/OWBPA applied, the appellant did not revoke

her agreement during the statutory revocation period . CID at 8. As to the

appellant’s allegation that the agency had violated the provision requiring it to

give her a neutral employment reference, the administrative judge found that the

appellant failed to demonstrate that the agency was not in material compliance .

CID at 8-10. Lastly, regarding the timeliness of the petition for enforcement, the

administrative judge found that the appellant had filed her petition within a

reasonable amount of time after she became aware of the agency ’s alleged breach.

CID at 10. In her compliance petition for review, the appellant repeats her

contentions that the agency and her attorneys coerced her into signing the

settlement agreement, she attempted to revoke the agreement during the

ADEA/OWBPA revocation period, and the agency violated the neutral reference

clause of their agreement. Compliance Petition for Review (CPFR) File, Tab 1

at 5. The agency has filed a response to the appellant’s compliance petition for

review. CPFR File, Tab 6.

¶6 Because it was unclear whether the appellant’s compliance petition for

review also applied to the initial decision dismissing her underlying IRA appeal

as settled, the Office of the Clerk of the Board sent the appellant a letter to

determine her intent. CPFR File, Tab 4. Instead of responding to the letter from

the Clerk’s Office, the appellant filed a petition for review of the initial decision

dismissing her underlying IRA appeal as settled. Petition for Review (PFR) File,

Tab 1. Because the petition for review was not received by the date t hat the

initial decision in the appellant’s IRA appeal became final, i.e., August 20, 2018,

the Clerk’s Office gave her notice that she must file a motion to (1) accept the

filing as timely and/or (2) waive the time limit for good cause. PFR File, Tab 2

at 2; ID at 4. In her timeliness motion, the appellant essentially reiterates the

allegations set forth in her compliance appeal. PFR File, Tab 3 at 4-8. She does

not address the timeliness of her petition for review. 4

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant failed to show that the administrative judge erred in denying her

petition for enforcement.

¶7 The Board will enforce a settlement agreement that was entered into the

record in the same manner as a final Board decision or order. Allen v.

Department of Veterans Affairs, 112 M.S.P.R. 659, ¶ 7 (2009), aff’d, 420 F.

App’x 980 (Fed. Cir. 2011). In response to an appellant’s allegations of

noncompliance, the agency must produce relevant material evidence of its

compliance with the agreement, or show that there was good cause for

noncompliance. Id. The ultimate burden, however, remains with the appellant to

prove breach by a preponderance of the evidence. Id.

¶8 The appellant alleged in her petition for enforcement that the agency

breached the requirement for it to give her a neutral employment reference. CF,

Tab 4 at 3. Specifically, she alleged that a nurse practitioner, as well as several

agency physicians and human resource officers, had communicated with the four

After the close of the record on review, the appellant filed a motion to accept new

evidence. PFR File, Tab 10 at 4; see 5 C.F.R. § 1201.114(k). Pleadings allowed on

review include a petition for review, a cross petition for review, a response to a petition

for review, a response to a cross petition for review, and a reply to a response to a

petition for review. 5 C.F.R. § 1201.114(a). A motion to accept a pleading other than

those listed must describe the nature of and need for the pleading. 5 C.F.R.

§ 1201.114(a)(5). The appellant contends the new evidence, which concerns the merits

of her IRA appeal, was not available until October 2019. PFR File, Tab 10 at 4. Under

5 C.F.R. § 1201.114(k), evidence submitted after the close of the record on review must

be new and material as defined in 5 C.F.R. § 1201.115(d). Nevertheless, even if we

credit the appellant’s assertion that the evidence was unavailable despite her due

diligence when the record closed, the evidence is not material to the outcome in this

case because it does not address the dispositive issues, i.e., the timeliness of the

appellant’s petition for review of the initial decision dismissing her IRA appeal as

settled, and the agency’s compliance with that settlement agreement. See 5 C.F.R.

§§ 1201.114(k), 1201.115(d). Because the appellant fails to show that her new

evidence is material, we deny her motion. Id.

agency medical centers where she had applied for employment. CF, Tab 10 at 10,

12-13. Although the appellant contended that agency officials made slanderous,

defamatory statements that accused her of the inability to perform the duties of

her position, she failed to identify who made the alleged slanderous statements or

the exact content of their statements. Id. In her compliance petition for review,

the appellant merely restates her allegations that unnamed agency employees and

officials contacted other agency medical centers and made slanderous statements

about her. CPFR File, Tab 1 at 5.

¶9 As noted above, the administrative judge found that the appellant did not

show that the agency failed to comply with the requirement that it give her a

neutral reference. CID at 9-10. For the following reasons, we agree. The

unrebutted declaration of the Human Resource Officer designated in the

settlement agreement to field employment inquiries showed that she had not

received an employment inquiry about the appellant. CID at 9; CF, Tab 11

at 23-25. The unrebutted declaration of the nurse practitioner named by the

appellant as having communicated with potential employers stated that she had

not spoken with anyone outside the appellant’s facility about the appellant since

April 2017, which was long before the July 7, 2018 execution of the parties ’

settlement agreement and therefore could not have violated it. CF, Tab 23 at 21.

¶10 The appellant’s compliance petition for review provides no further de tails

about the alleged slanderous statements. CPFR File, Tab 1. Given the lack of

detail in her allegations, we agree with the administrative judge that the

appellant’s allegations constitute mere speculation. CID at 10. We also agree

with the administrative judge that the appellant’s nonselection for the positions at

issue does not in and of itself demonstrate that the agency violated the neutral

reference provision. Id. Thus, we affirm the administrative judge’s finding that

the appellant failed to show that the agency violated its obligation to give her a

neutral employment reference. CID at 8-10.

¶11 As previously noted, in her petition for enforcement, the appellant also

argued that the settlement agreement was invalid. CF, Tab 12 at 3. The

administrative judge addressed the appellant’s contentions regarding the validity

of the settlement agreement in the compliance initial decision. CID at 5-8. An

attack on the validity of a settlement agreement must be made in the form of a

petition for review of the initial decision dismissing the appeal as settled. Weldon

v. Department of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013). Thus, the

administrative judge arguably erred when she analyzed the appellant’s

contentions concerning the validity of the settlement agreement in adjudicating

the petition for enforcement. Any such error, however, does not provide a basis

for reversing the compliance initial decision. The administrative judge correctly

found that the appellant failed to show that the agency breached the settlement

agreement.

¶12 Moreover, as discussed above, the Clerk’s Office sent the appellant a letter

to determine whether, in filing her petition for review of the compliance initial

decision, she also sought to challenge the initial decision dismissing her

underlying IRA appeal as settled. CPFR File, Tab 4. Following the letter from

the Clerk’s Office, the appellant filed a petition for review of the initial decision

dismissing her IRA appeal as settled. PFR File, Tab 1. Therefore, the appellant

has been provided with the opportunity to challenge the validity of the settlement

agreement in the proper context—namely, in a petition for review of the initial

decision dismissing her appeal as settled. See Weldon, 119 M.S.P.R. 478, ¶ 5.

The appellant’s petition for review of the initial decision dismissing her IRA

appeal as settled was untimely filed without good cause shown for the delay.

¶13 The appellant alleged that the agency and her attorneys induced her into

signing the settlement agreement through fraud, misrepresentation, and/or threats

to withdraw or alter its terms. CF, Tab 1, Tab 10 at 4-5, 10-12, Tab 12 at 3;

CPFR, Tab 1 at 5. As noted above, in response to the letter from the Clerk’s

Office inquiring whether her compliance petition for review also challenged the

initial decision dismissing her IRA appeal as settled, the appellant filed a petit ion

for review of the initial decision dismissing her IRA appeal as settled. CPFR

File, Tab 4; PFR File, Tab 1. For the following reasons, we find that the

appellant’s petition for review was untimely filed without good cause shown for

the delay.

¶14 An appellant may challenge the validity of a settlement agreement if she

believes it was unlawful, involuntary, or the result of fraud, coercion,

misrepresentation, or mutual mistake. Miller v. Department of the Army,

112 M.S.P.R. 689, ¶ 10 (2009). Even if the invalidity is not apparent at the time

of settlement, the settlement agreement must be set aside if it is subsequently

shown, by new evidence, that the agreement is invalid. Weldon, 119 M.S.P.R.

478, ¶ 5. However, once an appellant discovers evidence that she claims

establishes a valid reason to set aside the agreement, she must act with due

diligence to file a petition for review with the Board or her petition for review

will be dismissed as untimely filed. See Armstrong v. Department of the

Treasury, 115 M.S.P.R. 1, ¶ 5 (2010) (finding that the filing of a petition for

review less than 3 weeks after becoming aware of the basis of a valid reason to

set aside the settlement agreement was diligent), aff’d, 438 F. App’x 903 (Fed.

Cir. 2011).

¶15 The acknowledgment letter for the appellant’s petition for review informed

her that her petition was untimely filed because the July 16, 2018 initial decision

dismissing her IRA appeal as settled became final on August 20, 2018. PFR File,

Tab 2 at 2. As instructed in the acknowledgment letter, the appellant filed a

motion to accept the filing as timely or waive the filing deadline for goo d cause,

but, as noted above, she did not address the timeliness issue. PFR File, Tab 3.

Instead, she argued the merits of her petition for review, reiterating her general

allegations of fraud, misrepresentation, and/or threat, and contending that, on

July 9, 2018, her attorneys prevented her from revoking or withdrawing her

approval of the settlement agreement. Id. at 4-5.

¶16 The appellant’s claim that the settlement agreement is invalid is premised

on two distinct contentions. First, she alleged that the agency threatened to

withdraw or alter the terms of the agreement if she did not sign it within 24 hours.

CF, Tab 10 at 10; PFR File, Tab 1 at 8. Second, she argued that she tried to

revoke the settlement agreement during the 7-day revocation period provided

under the ADEA/OWBPA, but her attorney would not allow it. CF, Tab 10

at 4-5, 9-12; PFR File at 5-6, 8-9. Because the record reflects that the appellant

discovered the evidence that she claims provides a valid reason to set aside the

parties’ settlement agreement in July 2018, and did not file the petition for

enforcement in which she first made these arguments until November 2018, we

find that her petition for review of the initial decision dismissing her IRA appeal

as settled was untimely filed without good cause shown.

¶17 As noted above, the appellant argued that the parties’ settlement agreement

was invalid because the agency or her attorneys coerced her into signing the

agreement, and would not allow her to revoke it. CF, Tab 1 at 4, Tab 10 at 4-5,

9-12, Tab 12 at 3, Tab 22 at 30, 36-38, 40-42, 137. She consistently claimed

therein that this happened between July 6 and 11, 2018. CF, Tab 1 at 4, Tab 10

at 4-5, 9-12, Tab 12 at 3, Tab 22 at 30, 36-38, 40-42, 137. The appellant made

the same contentions in her petition for review of the initial decision dismissing

her IRA appeal as settled. PFR File, Tab 1 at 5-22, 87. Thus, the record shows

that she discovered an allegedly valid reason to set aside the settlement agreement

no later than July 11, 2018. The administrative judge issued the initial decision

dismissing the appellant’s IRA appeal as settled on July 16, 2018, and it became

final on August 20, 2018. ID at 4; see 5 C.F.R. § 1201.113(a). However, the

appellant filed her petition for enforcement, in which she first argued that the

settlement agreement was invalid, on November 25, 2018—98 days after the

initial decision became final. CF, Tab 1.

¶18 Waiting to challenge the settlement agreement as invalid for over 3 months

after the initial decision became final, where the record shows that she discovered

the evidence that she claims established a valid reason to set aside t he agreement

within days after signing the agreement, does not show diligence. See Hawley v.

Social Security Administration, 108 M.S.P.R. 587, ¶ 5 (2008) (finding that a delay

of 4 months after discovering evidence of an unexpected change in a settlement

agreement and a further delay of 2 months following an unsuccessful attempt to

resolve that discrepancy before filing a petition challenging the validity of the

agreement was not diligent); Nichols v. Department of the Air Force,

102 M.S.P.R. 551, ¶ 9 (2006) (finding that an appellant failed to show good cause

for the late filing of her petition for review where she claimed she was waiting for

documents from a Freedom of Information Act request, yet still waited 3 months

after receiving those documents before filing it), aff’d, 253 F. App’x 961 (Fed.

Cir. 2007); Fritz v. Department of the Air Force, 59 M.S.P.R. 87, 89-90 (finding

that an appellant did not establish that he acted with diligence where evidence

showed that he became aware of the agency’s alleged misrepresentation regarding

a settlement agreement 2 months prior to filing his petition for review) ; Saunders

v. Department of the Interior, 56 M.S.P.R. 671, 673-74 (1993) (finding that an

appellant did not show due diligence or ordinary prudence where he delayed for

8 weeks before raising the agency’s alleged misrepresentation in relation to a

settlement agreement); cf. Armstrong, 115 M.S.P.R. 1, ¶ 5 (finding a petition filed

less than 3 weeks after the discovery of evidence establishing a valid reason to set

aside the agreement was diligently filed). Accordingly, we dismiss the

appellant’s petition for review of the initial decision that dismissed her IRA

appeal as settled because we find that it was untimely filed without good cause

shown for the delay.

ORDER

¶19 The initial decision on the appellant’s petition for enforcement constitutes

the Board’s final decision in that matter. 5 C.F.R. § 1201.113. This is the final

decision of the Merit Systems Protection Board regarding the timeliness of the

petition for review of the initial decision dismissing the appellant’s IRA appeal as

settled. The initial decision in that appeal remains the final decision of the Board

regarding the appellant’s IRA appeal. Id.

NOTICE OF APPEAL RIGHTS 5

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 rev iew 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).

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.

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. 420 (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 descri bed 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. 6 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