                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2007-3113


                             DEBORAH A. STEPHENS,

                                                           Petitioner,


                                          v.

                           DEPARTMENT OF THE ARMY,

                                                           Respondent.

      Deborah A. Stephens, of Marietta, Georgia, pro se.

       David F. D’Alessandris, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Donald E. Kinner, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

      United States Court of Appeals for the Federal Circuit

                                        2007-3113

                                DEBORAH A. STEPHENS,

                                                              Petitioner,

                                             v.

                             DEPARTMENT OF THE ARMY,

                                                              Respondent.

                            ___________________________

                            DECIDED: August 23, 2007
                            ___________________________


Before RADER and SCHALL, Circuit Judges, and FARNAN, District Judge. *

RADER, Circuit Judge.

       The Merit Systems Protection Board denied appellant’s request for enforcement

of the settlement agreement reached in a dispute between Ms. Stephens and her

employer, the Department of the Army. Because substantial evidence supports the final

decision of the Board, this court affirms.

                                             I

       Ms. Stephens was removed from her position as an Administrative Support

Assistant with the First United States Army at Fort Gillem, Georgia for being Absent

Without Leave (AWOL), failing to follow established leave protocol, and failing to follow


*
       Honorable Joseph J. Farnan, Jr., District Judge, United States District Court for
the District of Delaware, sitting by designation.
supervisory instructions. During a hearing held on October 12, 2006, Administrative

Judge, Joseph E. Clancy, encouraged the parties to discuss a settlement. After a brief

recess, a settlement was reached between the parties which fully resolved their dispute.

      Judge Clancy issued an order on October 16, 2006 recording the terms of the

settlement which included the reinstatement of Ms. Stephens, the removal of certain

negative documents from her file, and permission to use her accrued sick leave. Ms.

Stephens agreed to waive her right to pursue this matter further (excluding her ongoing

EEOC case) and fill out retirement paperwork as soon as it became available.

      On January 9, Ms. Stephens filed a petition of enforcement with the MSPB. Ten

days later, without waiting for the board’s decision, she filed this appeal. The MSPB, on

April 12, of this year denied Ms. Stevens enforcement petition.

                                                   II

      As an initial matter, this court is without jurisdiction to hear this appeal.   5 C.F.R.

§ 1201.120 provides that “any employee…who is adversely affected by a final order or

decision of the Board under the provisions of 5 U.S.C. § 7703 may obtain judicial review

in the United States Court of Appeals for the Federal Circuit.” The MSPB decision had

not yet issued when Ms. Stephens brought this appeal.

                                             III

       Putting that aside, to the extent that this court has jurisdiction to review this

case, the decision of the MSPB to deny the petition of enforcement is affirmed.

      This court must affirm any MSPB actions, findings, or conclusions not found to

be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance

with the law; (2) obtained without procedure required by law, rule, or regulation having




2007-3113                                     2
been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996);

Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

      To show a breach of a settlement agreement a party must show material non-

compliance with the terms of the contract by the opposing party Gilbert v. Dept. of

Justice, 334 F.3d 1065, 1071 (Fed. Cir. 2003). Ms. Stephens has failed to do this. In

fact, evidence shows that the Army has complied with its obligations under the

settlement agreement, while Ms. Stevens has not filed for retirement as required

      The agreement is lawful on its face, understood by the parties, and entered into

freely by the parties.   There is no evidence of breech on the part of the Army.

Accordingly, the decision of the MSPB to deny the petition for enforcement is affirmed.




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