                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RENATA M. LACHIEWICZ,                           DOCKET NUMBER
                  Appellant,                         PH-0752-10-0490-C-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: August 28, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Renata M. Lachiewicz, Chicago, Illinois, pro se.

           Laura J. Carroll, South Burlington, Vermont, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the compliance initial
     decision, which denied her petition for enforcement of a settlement agreement.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the 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.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, 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 initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant filed an appeal with the Board challenging her removal from
     her position as an Immigration Services Officer with the U.S. Citizenship and
     Immigration Services.     See Lachiewicz v. Department of Homeland Security,
     MSPB Docket No. PH-0752-10-0490-I-1 (I-1), Initial Appeal File (IAF), Tab 1.
     During the appeal process, the parties executed a settlement agreement.
     Lachiewicz, PH-0752-10-0490-C-1 (C-1), Compliance File (CF), Tab 3 at 15-18.
     Under the relevant terms of the settlement, the appellant agreed to resign and
     dismiss her Board appeal with prejudice to refiling. 2 Id. at 16. In addition, the
     agency agreed to reverse her removal “and expunge any reference thereto (with
     the exception of [the] settlement agreement)” from her Official Personnel File.
     Id.   The agreement also contained a provision stating that: “[n]othing in this
     agreement will be construed to constitute a confidentiality clause and agency
     employees will respond truthfully if questioned as part of a background
     investigation or any other review of the appellant’s suitability for employment.”

     2
       The appellant also agreed to settle all of her complaints and appeals against the
     agency based on any matters that occurred prior to the execution of the settlement
     agreement. CF, Tab 3 at 16-17.
                                                                                      3

     Id.   By signing the agreement, the appellant acknowledged that she read and
     understood the agreement, she entered into the agreement “freely and
     voluntarily,” and that the agency “made no threats or used any coercion of any
     kind to induce the appellant to enter into [the] Settlement Agreement.” Id. at 17.
     On August 25, 2010, the administrative judge assigned to the removal appeal
     issued an initial decision dismissing the appeal as settled, and he entered the
     agreement into the record for enforcement purposes. See IAF, Tab 19, Initial
     Decision.
¶3         On December 14, 2012, the appellant filed a petition for review of the
     initial decision that dismissed her appeal as settled, alleging that she signed the
     settlement agreement under duress and that the agency failed to comply with the
     agreement. I-1, Petition for Review (PFR) File, Tab 1. The Board dismissed her
     petition for review as untimely filed and forwarded her allegations of
     noncompliance to the Northeastern Regional office for further adjudication as a
     petition for enforcement. Id., Final Order (Sep. 30, 2013). The Board docketed
     the appellant’s petition for enforcement on October 17, 2013. CF, Tab 1.
¶4         In her compliance action, the appellant alleged that the agency breached the
     settlement agreement based on:     (1) the agency’s alleged delay in paying the
     appellant for the period she was placed on administrative leave—May 29, 2010,
     to August 1, 2010; (2) the agency’s alleged failure to expunge references to the
     removal action from the appellant’s Official Personnel File (OPF); and (3) the
     agency’s refusal to fully fill out a Verification of Employment form for the
     Illinois Private Investigators License. CF, Tab 12 at 1-2; see I-1, PFR File, Tab
     1 at 7-8. The appellant also challenged the validity of the settlement agreement,
     arguing that the agency coerced her into signing the agreement and that the
     administrative judge who dismissed her appeal as settled was biased. CF, Tab 8
     at 4, Tab 9 at 4.
                                                                                           4

¶5         The administrative judge assigned to the appellant’s compliance action
     denied the appellant’s petition for enforcement. 3 CF, Tab 14, Compliance Initial
     Decision (CID) at 6. The administrative judge found that the appellant did not
     dispute that she was aware of alleged breaches 1 and 2 before she filed her
     December 2012 petition for enforcement, and she provided no explanation for her
     lengthy delay in bringing those compliance issues to the Board. CID at 4. Based
     on his finding that the appellant did not raise those two compliance issues within
     a “reasonable period,” the administrative judge dismissed those compliance issues
     as untimely. 4 CID at 4-5.
¶6         The administrative judge further found that the third alleged compliance
     issue was timely; however, he found that the agency did not breach the agreement
     by refusing to attest to the appellant’s “honesty, truthfulness, [and] integrity” on
     the Verification of Employment form. CID at 6. The administrative judge found
     that the settlement agreement provided that the agency would answer truthfully if
     questioned as part of a background investigation or any review of the appellant’s
     suitability for employment, and the appellant admitted on multiple occasions that
     she made a false statement to Border Patrol agents, although she attempted to
     recant her admission. 5 CID at 5.       Based on the foregoing, the administrative
     judge found that the appellant did not meet her burden of proving “that the
     agency’s failure to fill out the [Verification of Employment] form to her

     3
       The administrative judge who presided over the appellant’s removal appeal was also
     assigned to the appellant’s compliance action. CF, Tab 10 at 1. Subsequently, at the
     administrative judge’s request, the Chief Judge reassigned the appellant’s compliance
     action to the administrative judge who issued the compliance initial decision before the
     Board on review. Id.; CF, Tab 11.
     4
      In reaching his decision, the administrative judge noted, based on the record, that the
     agency paid the appellant for her administrative leave in March 2011 and expunged the
     documents reflecting the removal action on or about February 17, 2012. CID at 4; see
     CF, Tab 3, Exhibits 3-12.
     5
       The appellant admitted that she falsely informed Border Patrol agents that she had
     seen the visa and passport documents of the illegal alien with whom she lived and
     subsequently married. CF, Tab 3 at 11, 66.
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     satisfaction” breached the settlement agreement.      CID at 6.    In reaching his
     decision, the administrative judge also noted that the appellant’s arguments
     challenging the validity of the settlement agreement were outside the purview of
     her petition for enforcement. CID at 4 n.3.
¶7        The appellant has filed a petition for review of the compliance initial
     decision, and the agency has responded in opposition to her petition. C-1, PFR
     File, Tabs 1, 3. On review, the appellant challenges the administrative judge’s
     findings regarding compliance and asks the Board to reopen her case or return her
     to work.   Id., Tab 1 at 11.    The appellant also challenges the finding of the
     administrative judge that two of her allegations of noncompliance were untimely.
     Id. at 8-9. The appellant argues the merits of the rescinded removal, and she asks
     the Board to consider her allegations of discrimination, nepotism, harassment,
     and retaliation. Id. at 9-12. In addition, the appellant reasserts her challenge to
     the validity of the settlement agreement based on alleged coercion by the agency,
     bias by the administrative judge, and denial of due process. Id. at 4.
¶8        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).            Where the
     appellant alleges noncompliance with a settlement agreement, the agency must
     produce relevant material evidence of its compliance with the agreement, or show
     that there was good cause for noncompliance.          Id. (citation omitted).   The
     ultimate burden, however, remains with the appellant to prove breach by a
     preponderance of the evidence. Id.
¶9        The appellant’s arguments on review present no reason to disturb the
     compliance initial decision denying her petition for enforcement. The agency did
     not violate the settlement agreement by refusing to complete part of a
     Verification of Employment form asking the agency to certify that the appellant
     established, to the agency’s satisfaction, honesty, truthfulness, integrity and
     competency. CF, Tab 3 at 6, 66. The parties’ agreement explicitly stated that the
                                                                                       6

      agency would truthfully respond to questions in background investigations or any
      review of the appellant’s suitability for employment.     Id. at 16.   The agency
      stated that it could not affirmatively complete the part of the Verification of
      Employment form referenced above because the appellant admittedly lied to a
      Border Patrol agency regarding the immigration status of her boyfriend. Id. at 16,
      66. Although the appellant subsequently attempted to recant her admission that
      she lied to Border Patrol agents, the appellant has not proven that the agency
      violated the settlement agreement by failing to complete the Verification of
      Employment form in its entirety. 6 CF, Tab 3 at 66, Tab 5 at 8.
¶10        The appellant also challenges the administrative judge’s finding that some
      of her allegations of noncompliance were untimely. For the first time on review,
      she argues that her filing delay was reasonable because “bureaucratic processing
      takes time.” C-1, PFR File, Tab 1 at 8-9. In support of her argument, she states
      that she made at least three Freedom of Information Act requests for her Standard
      Form 50 personnel action form, and the search results did not match what she
      received from the agency’s human resources department. Id. at 9. She also states
      that “[s]he was trying to be patient and to work with the agency, but they were
      procrastinating with replies.” Id.
¶11        In adjudicating the appellant’s compliance action, the administrative judge
      issued an order informing the appellant of the timeliness issue and afforded her
      more than one opportunity to show that there was good cause for her filing delay.
      CF, Tab 7 at 3-4, Tab 10 at 1, 3. In responding to the orders on timeliness, the
      appellant did not raise any of the arguments she raised on review, and she does
      not explain her failure to do so. See CF, Tabs 9, 13. Because the appellant has
      not shown that she based her timeliness arguments on new and material evidence
      not previously available despite the party’s due diligence, the Board will not

      6
        The agency partially completed the Verification of Employment form by providing
      information about the appellant’s position and dates of employment. CF, Tab 3 at 6,
      62, 64.
                                                                                      7

      consider them.    Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
      (1980).
¶12        On review, the appellant also challenges the merits of the rescinded removal
      action and asks the Board to consider her allegations of discrimination, nepotism,
      and harassment.    C-1, PFR File, Tab 1 at 9-12.      However, once a settlement
      agreement is entered into the record, the original appealable action is withdrawn
      or dismissed. See King v. Reid, 59 F.3d 1215, 1218 (Fed. Cir. 1995). The Board
      retains jurisdiction over a settlement agreement made part of the record pursuant
      to its power under 5 U.S.C. § 1204(a)(2) to enter and enforce its own orders.
      King, 59 F.3d at 1218. The Board lacks jurisdiction to hear the appellant’s claims
      regarding the merits of the rescinded removal and her related allegations of
      discrimination, nepotism, and harassment, in connection with a petition for
      enforcement of a settlement agreement.          See generally Walker-King v.
      Department of Veterans Affairs, 119 M.S.P.R. 414, ¶ 15 (2013) (the Board lacks
      jurisdiction to hear pendent discrimination claims in connection with a petition
      for enforcement of a settlement agreement) (citing King, 59 F.3d at 1219; Diehl v.
      U.S. Postal Service, 82 M.S.P.R. 620, ¶ 11 (1999)).
¶13        Lastly, the Board will not consider the appellant’s arguments challenging
      the validity of the settlement agreement. C-1, PFR File, Tab 1 at 4-5; CID at 4
      n.3; CF, Tab 7 at 3.     The appellant previously attacked the validity of the
      settlement agreement in her petition for review of the initial decision that
      dismissed her appeal as settled. I-1, PFR File, Tab 1. The Board dismissed the
      appellant’s petition for review as untimely and forwarded only her allegations of
      noncompliance to the Northeastern Regional Office, for further adjudication as a
      petition for enforcement.   Id., Final Order.   Accordingly, we agree with the
      administrative judge’s finding that the appellant’s allegations challenging the
      validity of the settlement agreement are not properly before the Board. CID at 4
      n.3; CF, Tab 7 at 1-2.
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           9

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
