The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSIE ROBERTS, DOCKET NUMBER
Appellant, DA-1221-20-0113-C-1
DA-1221-20-0113-X-1
v.
DEPARTMENT OF JUSTICE,
Agency. DATE: April 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra D'Agostino , Esquire, and Erica Bilkis , Esquire, Washington, D.C.,
for the appellant.
Katherine Siereveld , Esquire, Cincinnati, Ohio, for the agency.
Mridula Tirumalasetti , Esquire, Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the compliance initial
decision, granting the appellant’s petition for enforcement, finding that the
agency materially breached the parties’ settlement agreement. Because the
administrative judge’s finding of noncompliance was docketed as Roberts v.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Department of Justice, MSPB Docket No DA-1221-20-0113-X-1, we JOIN the
two matters under 5 C.F.R. § 1201.36 and address them both in this decision. 2
For the reasons discussed below, we DENY the agency’s petition for review and
AFFIRM the compliance initial decision, but, based on the agency’s evidence on
review, we FIND the agency in compliance, and we DISMISS the appellant’s
petition for enforcement as moot.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed a petition for enforcement of the parties’ settlement
agreement entered into Roberts v. Department of Justice, MSPB Docket No.
DA-1221-20-0113-W-2, Appeal File, Tab 23, 3 alleging that the agency materially
breached the agreement when it suspended her from duty without pay for 5 days
based on alleged conduct that occurred before the parties entered into the
agreement, Compliance File (CF), Tab 1. The administrative judge issued a
compliance initial decision granting the appellant’s petition for enforcement,
finding that the agency materially breached the terms of the settlement agreement
by suspending the appellant based on past conduct which the parties intended to
resolve with the agreement. CF, Tab 9, Compliance Initial Decision (CID) at 11.
Accordingly, the administrative judge ordered the agency to cancel the 5-day
suspension, retroactively restore the appellant, and pay her the appropriate
amount of back pay. CID at 12-13.
The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. On review, the agency challenged the underlying merits of the compliance
initial decision, but nevertheless stated that it had taken steps to comply with the
2
Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite processing of the cases and will 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
requirement; therefore, we join them here.
3
The administrative judge dismissed that appeal as settled and accepted the settlement
agreement into the record for enforcement purposes. Roberts v. Department of Justice,
MSPB Docket No. DA-1221-20-0113-W-2, Initial Decision (Oct. 28, 2020).
3
administrative judge’s orders, including correcting the appellant’s time and
attendance records, restoring the appellant to duty, and processing her back pay
and request to expunge her electronic personnel file. PFR File, Tab 1 at 4-12.
The appellant responded in opposition to the agency’s petition for review but did
not dispute the agency’s claims of compliance. PFR File, Tab 3.
The Office of the Clerk of the Board issued a show cause order, ordering
the agency to submit evidence and argument addressing whether it fully complied
with the administrative judge’s orders in the compliance initial decision, and if
so, to show cause as to why its petition for review should not be dismissed as
moot. PFR File, Tab 6 at 2-3. The agency responded to the order, confirming
that it had fully complied with the compliance initial decision, but arguing that
the Board could still consider its petition for review challenging the underlying
merits of the compliance initial decision. 4 PFR File, Tab 8 at 4-12. The appellant
did not file a response to the show cause order or otherwise challenge the
agency’s assertions that it complied with the compliance initial decision.
On review, the agency disagrees with the administrative judge’s finding
that it breached the settlement agreement when it suspended the appellant from
duty for 5 days. PFR File, Tab 1. However, we discern no basis for disturbing
the administrative judge’s well-reasoned findings on this issue. 5 See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge's findings where the administrative judge considered the
4
The agency attached documentation to its response to the show cause order confirming
that it had complied with the compliance initial decision. PFR File, Tab 8 at 8-24.
5
If the agency wishes to challenge the validity of the settlement agreement on the basis
of mutual mistake, such a claim is properly raised in a petition for review of the initial
decision that dismissed the appeal pursuant to the settlement agreement. See
Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶ 8 (2009); see also
Bruhn v. Department of Agriculture, 124 M.S.P.R. 1, ¶ 18 (2016) (explaining that a
party may challenge the validity of a settlement agreement if the party believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake). We make
no finding here, however, about the timeliness of any petition for review of the initial
decision dismissing the appellant's appeal as settled.
4
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The Board has held that it does not retain jurisdiction over a petition for
enforcement once an agency has submitted evidence of compliance.
Garstkiewicz v. U.S. Postal Service, 46 M.S.P.R. 689, 690 (1991); Eikenberry v.
Department of the Interior, 39 M.S.P.R. 119, 120-21 (1988). As mentioned
above, the agency submitted proof of compliance, and the appellant does not
dispute such proof. Under the circumstances, we find that there is no effective
relief that the Board can provide, and thus, this compliance matter is moot.
Milner v. U.S. Postal Service, 118 M.S.P.R. 600, ¶ 4 (2012) (explaining that an
issue is moot when there is no effective relief that the Board can provide) .
Based on the foregoing, we deny the agency’s petition for review of the
compliance initial decision, and we dismiss the appellant’s petition for
enforcement as moot.
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
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
6
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.
5
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.
6
(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:
7
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. 7 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).
7
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.
8
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.