                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


CHRISTINE M. HALFACRE,                          DOCKET NUMBER
              Appellant,                        DC-0752-12-0626-R-1

             v.

DEPARTMENT OF HOMELAND                          DATE: September 5, 2014
  SECURITY,
            Agency.




        THIS FINAL ORDER IS NONPRECEDENTIAL *

      Adria S. Zeldin, Esquire, and Joseph V. Kaplan, Esquire, Washington,
        D.C., for the appellant.

      Jennifer Kessler, Joseph Rieu, and Michael W. Gaches, Esquire, Arlington,
        Virginia, for the agency.


                                      BEFORE

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




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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      FINAL ORDER

¶1         The Board issued a final decision in this appeal on June 13, 2014.
     Halfacre v. Department of Homeland Security, MSPB Docket No. DC-0752-12-
     0626-I-1 (I-1), Final Order (June 13, 2014).        Thereafter, the parties filed a
     settlement agreement executed on July 7, 2014, and a request to reopen the
     appeal, vacate the Board’s June 13, 2014 final decision, and dismiss the
     underlying appeal. MSPB Docket No. DC-0752-12-0626-R-1, Reopening Appeal
     File (RAF), Tab 1. For the reasons set forth below, we REOPEN the appeal
     under 5 U.S.C. § 7701(e)(1)(B) and 5 C.F.R. § 1201.118, see Smith v. Social
     Security Administration, 102 M.S.P.R. 167 (2006), VACATE the Board’s final
     decision, and DISMISS the underlying appeal as settled.
¶2         Before dismissing a matter as settled, the Board must decide whether the
     parties have entered into a settlement agreement, understand its terms, and 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). We find here that
     the parties, in fact, have entered into a settlement agreement, that they
     understand the terms, and that they want the Board to enforce those terms. See
     RAF, Tab 1 at 6.
¶3         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, whether the parties freely entered into it, and whether the subject
     matter of this appeal is within the Board’s jurisdiction, that is, whether a law,
     rule, or regulation grants the Board the authority to decide such a matter. See
     Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107 (1997). We find here that
     the agreement is lawful on its face, that the parties freely entered into it, and that
     the subject matter of this appeal—the removal of a full-time nonprobationary
     employee    in   the   federal   service—is    within    the   Board’s    jurisdiction
     under 5 U.S.C. §§ 7511-13, 7701.           I-1, Initial Appeal File, Tab 8(4.b).
                                                                                        3

     Accordingly, we find that dismissal of the underlying appeal “with prejudice to
     refiling” (i.e., the parties normally may not refile this appeal) is appropriate
     under these circumstances, and we accept the settlement agreement into the
     record for enforcement purposes.
¶4         This is the final order of the Merit Systems Protection Board in this appeal.
     Title 5 of the Code of Federal Regulation, 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
     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 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 your receipt of this order. If you have a representative in this case, and your
     representative receives this order before you do, then you must file with the court
     no later than 60 calendar days after receipt by your representative. If you choose
                                                                                  4

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). You may read
this law, as well as review the Board’s regulations and other related material, at
our website, http://www.mspb.gov.      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
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.
