# Sara Gauff v. Department of Veterans Affairs > Merit Systems Protection Board · May 13, 2024 URL: https://www.frixlaw.com/law-library/cases/9968529 ## Case - **Court:** Merit Systems Protection Board - **Decided:** May 13, 2024 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9968529 ## Opinion text UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SARA GAUFF, DOCKET NUMBER Appellant, CH-0752-23-0211-I-1 v. DEPARTMENT OF VETERANS DATE: May 13, 2024 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shannon Eckman , Esquire, Minneapolis, Minnesota, for the appellant. Scott Lawrence , Esquire, Minneapolis, Minnesota, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision in this appeal, which dismissed her appeal as settled. For the reasons set forth below, we GRANT the appellant’s petition for review, VACATE the initial decision which dismissed the appeal as settled pursuant to the parties’ May 19, 2023 settlement 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 agreement, and DISMISS the appeal as settled pursuant to the parties’ revised settlement agreement submitted to the Board on August 10, 2023. ¶2 On May 19, 2023, the parties submitted a fully executed settlement agreement, which provided, among other things, for the withdrawal of the appellant’s Board appeal. Initial Appeal File (IAF), Tab 14 at 6. The administrative judge issued an initial decision entering the May 19, 2023 settlement agreement into the record and dismissing this appeal as settled. IAF, Tab 17, Initial Decision (ID). The initial decision became final on June 30, 2023, when neither party filed a petition for review. 2 ID at 3. ¶3 On August 10, 2023, the appellant submitted a document entitled “Revised Settlement Agreement and Release,” signed by both parties. Petition For Review (PFR) File, Tab 1 at 4-10. The document provides, among other things, for the dismissal of this appeal, and states that the revised settlement agreement “supersedes conflicting terms contained within the [May 19, 2023 settlement agreement].” Id. at 6, 9. ¶4 The parties are requesting that the Board enter the revised settlement agreement into the record for enforcement purposes, replacing the May 19, 2023 settlement agreement. Id. at 7, 9. While this is an unusual situation, we find that entering the revised settlement agreement into the record at the parties’ mutual request promotes the strong public policy favoring settlement. See Spahn v. Department of Justice, 93 M.S.P.R. 195, ¶ 24 (2003) (characterizing the public policy favoring settlement as strong). Accordingly, we must vacate the initial decision because although the administrative judge properly accepted the May 19, 2023 settlement agreement and dismissed the appeal, he did so based on what is now an outdated settlement agreement. 2 The Board has found that untimeliness is not a bar to accepting a settlement agreement into the record. See McNamee v. Veterans Administration, 39 M.S.P.R. 530, 533 (1989) (explaining that possible untimeliness was not a bar to entering a settlement agreement into the record, and the agency, in deciding to settle, abandoned its claim that the appeal was untimely). 3 ¶5 Next, we must consider whether it is proper to enter the revised settlement agreement into the record for enforcement purposes, and to dismiss the appeal as settled. 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). Here, we find that the parties have entered into the revised settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 1 at 7. ¶6 Accordingly, we find that dismissing the appeal 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 revised agreement is lawful on its face and freely entered into, and we accept the revised settlement agreement into the record for enforcement purposes. Therefore, we dismiss this appeal as settled pursuant to the revised settlement agreement submitted to the Board on August 10, 2023. ¶7 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). 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 4 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. (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). 3 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 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 6 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 7 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 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 4 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9968529. Public record. Not legal advice.