                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BARBARA ANN MCKINNEY,                           DOCKET NUMBER
                 Appellant,                          PH-0752-11-0086-C-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: March 6, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Barbara Ann McKinney, Woods Hole, Massachusetts, pro se.

           Martha F. Ansty, Esquire, Essex Junction, Vermont, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of a compliance initial
     decision, which denied her petition for enforcement of a settlement agreement
     reached in her alleged involuntary retirement appeal.           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 erroneous

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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. For the reasons set forth below, we VACATE the
     compliance initial decision denying the petition for enforcement on the merits and
     DISMISS the compliance appeal for lack of jurisdiction.

                                      BACKGROUND
¶2        The appellant filed an appeal with the Board alleging that her retirement
     from the agency was involuntary, and constituted a constructive removal. Initial
     Appeal File (IAF), Tab 1 at 2-3, 11, 13. With her Board appeal, the appellant
     submitted an order from the Equal Opportunity Employment Commission
     (EEOC), which amended her complaint of discrimination based on age and
     disability to include her constructive removal claim, and therefore remanded the
     matter to the agency for processing as a mixed case. Id. at 11-15.
¶3        Before the administrative judge made any finding on the issue of
     jurisdiction, the parties requested to participate in the Board’s Mediation Appeals
     Program and entered into a settlement agreement during that process. IAF, Tabs
     11, 14-15.    Pursuant to the settlement agreement, the appellant agreed to
     withdraw her Board appeal and EEOC complaint with prejudice in exchange for a
     lump sum payment of $40,000.00. IAF, Tab 15 at 2. The settlement agreement
                                                                                     3

     provided that the appellant “agree[d] to be responsible for the tax consequences
     of the lump sum payment.” Id.
¶4        In an initial decision dated April 13, 2011, the administrative judge
     dismissed the appeal as withdrawn. IAF, Tab 16, Initial Decision (ID) at 1-2.
     She found that the parties understood the terms of the settlement agreement, and
     that it was lawful on its face and freely entered into. ID at 1. However, the
     administrative judge found that because the issue of jurisdiction was unresolved,
     she could not enter the settlement agreement into the record for enforcement by
     the Board.   ID at 1-2.   Neither party filed a petition for review of the initial
     decision, which became final on May 18, 2011. See ID at 2.
¶5        In March 2014, the appellant filed a petition for enforcement, alleging that
     the agency breached the settlement agreement by issuing a form 1099 to the
     Internal Revenue Service (IRS) documenting the $40,000.00 lump sum payment.
     Compliance File (CF), Tab 1 at 1-2. The agency responded, arguing that it had
     properly issued the form 1099 in accordance with the provision of the settlement
     agreement stating that the appellant was responsible for the tax consequences of
     the lump sum payment.      CF, Tab 3 at 6-7.     The agency further argued that,
     pursuant to the settlement agreement, the EEOC, rather than the Board, was
     responsible for enforcing the terms of the agreement. Id. at 7.
¶6        On July 2, 2014, the administrative judge issued a compliance initial
     decision, which summarily stated that the Board had jurisdiction over the petition
     for enforcement, without explaining the basis for this finding.       CF, Tab 5,
     Compliance Initial Decision (CID) at 1. The administrative judge found that the
     agency was in compliance with the settlement agreement when it issued the form
     1099 to the IRS, and dismissed the petition for enforcement. CID at 3-5.
¶7        The appellant has filed a petition for review of the compliance initial
     decision, in which she disputes the administrative judge’s finding that the agency
     was in compliance with the settlement agreement.         Compliance Petition for
                                                                                             4

     Review (CPFR) File, Tab 1 at 2-4. The agency has responded to the petition for
     review. CPFR File, Tab 5 at 4-5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶8         The issue of jurisdiction is always before the Board, and may be raised at
     any time by either party or sua sponte by the Board.             Heath v. U.S. Postal
     Service, 107 M.S.P.R. 366, ¶ 4 (2007). It is well-settled that the Board lacks
     jurisdiction to enforce a settlement agreement pursuant to which an appeal was
     withdrawn, where the agreement was not entered into the record for enforcement
     purposes. 2 See Diamond v. U.S. Postal Service, 51 M.S.P.R. 448, 450 (1991),
     aff’d, 972 F.2d 1353 (Fed. Cir. 1992) (Table); Harris v. U.S. Postal Service, 44
     M.S.P.R. 547, 550 (1990); see also Richardson v. Environmental Protection
     Agency, 5 M.S.P.R. 248, 250 (1981) (before the Board will enforce a settlement
     agreement, the settlement must be made a part of the record), modified on other
     grounds by Shaw v. Department of the Navy, 39 M.S.P.R. 586, 594 (1989); 5
     C.F.R. § 1201.182(a) (providing for jurisdiction over enforcement of the terms of
     a settlement agreement that has been entered into the record for purposes of
     enforcement in an order or decision under the Board’s appellate jurisdiction).
¶9         In the April 13, 2011 initial decision dismissing the appellant’s alleged
     involuntary retirement appeal, the administrative judge found that she could not
     enter the parties’ settlement agreement into the record for enforcement because
     the issue of the Board’s jurisdiction over the appeal remained unresolved. See ID
     at 1-2. Neither party filed a petition for review of that decision, which became
     the final decision of the Board. ID at 2; see 5 C.F.R. § 1201.113. Where, as

     2
       A party may file a petition for review challenging the valid ity of a settlement
     agreement, regardless of whether it has been entered into the record for enforcement
     purposes, if the party believes that the agreement is unlawful, involuntary, or the result
     of fraud or mutual mistake. Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580,
     583 (1994). The appellant has made no such allegation here. CF, Tabs 1, 4; CPFR File,
     Tab 1.
                                                                                                5

      here, the parties elect to settle an appeal without entering the settlement
      agreement into the record for enforcement purposes, the Board lacks jurisdiction
      to adjudicate a petition for enforcement of the settlement agreement. 3 See Barker
      v. Department of Agriculture, 100 M.S.P.R. 695, ¶ 6 (2006) (the Board lacked
      jurisdiction to entertain a petition for enforcement where the parties did not
      object to the appeal being dismissed pursuant to a settlement agreement that was
      not entered into the record); Lopez v. U.S. Postal Service, 71 M.S.P.R. 461, 462,
      464 (1996) (the Board lacked authority to adjudicate a petition for enforcement
      where the parties agreed to settle the appeal without incorporating the agreement
      into the record for enforcement purposes); Pelatti v. Department of the
      Navy, 45 M.S.P.R. 33, 36 (1990) (the Board lacked authority to enforce a
      settlement agreement that was not made a part of the record).
¶10         Because the Board lacks jurisdiction to enforce the settlement agreement,
      the administrative judge erred in adjudicating the appellant’s petition for
      compliance on the merits. See Cimilluca v. Department of Defense, 77 M.S.P.R.
      256, 257-59 (1998) (vacating an initial decision adjudicating a petition for
      enforcement on the merits where a settlement agreement was not entered into the
      record for enforcement purposes). Accordingly, we vacate the compliance initial
      decision, and dismiss the appellant’s compliance appeal for lack of jurisdiction.




      3
        In addition, the settlement agreement did not indicate that the parties intended for it to
      be enforceable by the Board. IAF, Tab 15. Instead, the settlement agreement provided
      that that if the appellant believed that the agency had failed to comply with the terms of
      the settlement, she would “follow the procedures set forth in 29 C.F.R. § 1614.504,”
      indicating that the parties intended the agreement to be enforceable by the EEOC. Id. at
      2-3; see also Fuentes v. Department of Health & Human Services, 111 M.S.P.R. 246,
      ¶ 3 (2009); Grubb v. Department of the Interior, 76 M.S.P.R. 639, 642-43 (1997) (the
      parties intended for the EEOC to enforce a settlement agreement that provided for
      enforcement in accordance with 29 C.F.R. § 1614.504).
                                                                                  6

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. 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
                                                                           7

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.
