                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM B. WILEY,                               DOCKET NUMBER
                   Appellant,                        SF-0831-09-0055-M-3

                  v.

     OFFICE OF PERSONNEL                             DATE: September 24, 2014
       MANAGEMENT,
                   Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.

           Christopher H. Ziebarth, Washington, D.C., for the agency.


                                           BEFORE

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



                                       FINAL ORDER

¶1         The U.S. Court of Appeals for the Federal Circuit remanded the referenced
     matter to the Board for the entry of a settlement agreement into the record.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     MSPB Docket No. SF-0831-09-0055-M-3, Court Remand File (CRF-2), Tab 3;
     Wiley v. Office of Personnel Management, No. 2012-3140 (Fed. Cir. Dec. 11,
     2013). For the reasons set forth below, we REOPEN and VACATE the Board’s
     final decision in this matter and dismiss the petition for review as settled. See
     MSPB Docket No. SF-0831-09-0055-M-2, Petition for Review File, Tab 5, Final
     Order (Mar. 29, 2012). 2
¶2        After the appellant filed an appeal of the Board’s final order with the
     Federal Circuit, the parties executed a settlement agreement signed and dated on
     July 31, 2013. CRF-2, Tab 2. The Court then granted the parties’ joint motion
     to remand the case to the Board for the purpose of vacating the Board’s final
     decision and entering the settlement agreement into the record for enforcement.
     CRF-2, Tab 3.
¶3        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 have, in fact, entered into a settlement agreement, that they
     understand the terms, and that they want the Board to enforce those terms. See
     CRF-2, Tab 2, ¶ 6. 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—an appeal pertaining to


     2
      The record reflects that Mary Wiley Scully has notified the Board that she no longer
     wishes to participate in this appeal as an Intervenor. See CRF-2, Tabs 4, 6.
                                                                                        3

     retirement annuity benefits—is within the Board’s jurisdiction under 5 U.S.C.
     § 831.110 and 5 C.F.R. § 831.110. Accordingly, we vacate the final decision in
     this matter and find that dismissal of the petition for review “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
                                                                                  4

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 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.
