Opinion

Justin Pickett v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jan 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JUSTIN LEE PICKETT, DOCKET NUMBER

Appellant, CH-0752-22-0084-I-1

DEPARTMENT OF THE ARMY, DATE: January 3, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.

Bienvenido Banchs , Mandeville, Louisiana, for the appellant.

Steven A. Schultz , Esquire, Lansing, Michigan, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision in this

appeal. For the reasons set forth below, we DISMISS the appeal as settled.

¶2 After the filing of the petition for review, the parties submitted a document

entitled “Settlement Agreement” and dated September 7, 2023. Petition for

Review (PFR) File, Tab 7 at 1. The document provides, among other things, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

the withdrawal of the appellant’s underlying appeal and the agency’s petition for

review. Id.

¶3 Before dismissing a matter as settled, the Board must decide whether the

parties have entered into a settlement agreement, whether they understand its

terms, and whether they intend to have the agreement entered into the record for

enforcement by the Board. See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146,

149 (1988). In addition, before accepting a settlement agreement into the record

for enforcement purposes, the Board must determine whether the agreement is

lawful on its face and whether the parties freely entered into it. See Delorme v.

Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017).

¶4 Here, we find that the parties have entered into a settlement agreement,

understand its terms, and intend for the agreement to be entered into the record

for enforcement by the Board. 2 PFR File, Tab 7 at 4. Accordingly, we find that

dismissing the petition for review with prejudice to refiling (i.e., the parties

normally may not refile this appeal) is appropriate under these circumstances. In

addition, we find that the agreement is lawful on its face and freely entered into,

and we accept the settlement agreement into the record for enforcement purposes.

¶5 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

The agreement contains what appears to be a typographical error. Specifically, it

states that the agreement is “in full force and effect for the entire period specified in

paragraph (d).” PFR File, Tab 7 at 4. However, the time period for the agreement

(24 months) is actually specified in paragraph (e). Id. It is apparent from the face of

the agreement that the parties’ intended meaning is that the settlement agreement will

be “in full force and effect” for 24 months, as specified in paragraph (e). See Brown v.

Department of the Interior, 86 M.S.P.R. 546, ¶ 17 (2000) (stating that only when the

parties’ intended meaning is not apparent from the face of the agreement is it

appropriate to consider extrinsic evidence of the parties intent) (citations omitted).

NOTICE TO THE PARTIES OF THEIR

ENFORCEMENT RIGHTS

If the agency or the appellant has not fully carried out the terms of the

agreement, either party may ask the Board to enforce the settlement agreement by

promptly filing a petition for enforcement with the office that issued the initial

decision on this appeal. The petition should contain specific reasons why the

petitioning party believes that the terms of the settlement agreement have not

been fully carried out, and should include the dates and results of any

communications between the parties. 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.

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.

(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. 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 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

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.