Error: Bad annotation destination
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2006-3338



                                 JENEICE HUNTER,

                                                            Petitioner,

                                           v.


                      DEPARTMENT OF VETERANS AFFAIRS,

                                                            Respondent.



      Jeneice Hunter, of Hampton, Virginia, pro se.

       Kenneth S. Kessler, Trial 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, David M. Cohen, Director,
and Mark A. Melnick, Assistant Director.

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                      Note: This disposition is nonprecedential.

   United States Court of Appeals for the Federal Circuit

                                     2006-3338

                                JENEICE HUNTER,

                                                     Petitioner,

                                          v.

                     DEPARTMENT OF VETERANS AFFAIRS,

                                                     Respondent.

                          __________________________

                          DECIDED: February 12, 2007
                          __________________________


Before SCHALL, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

                                     DECISION

      Jeneice Hunter petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that denied her petition for enforcement of a settlement

agreement between Ms. Hunter and the Department of Veterans Affairs ("VA"). Hunter

v. Dep’t of Veterans Affairs, DC-0752-05-0322-C-2 (MSPB Jun. 13, 2006). We affirm.

                                       DISCUSSION

                                               I.

      On March 3, 2003, Ms. Hunter filed an appeal with the Board challenging the

VA’s action separating her from Federal Service.      On May 12, 2005, the parties

resolved the action through a settlement agreement.        The settlement agreement
provided, inter alia, that the VA would offer Ms. Hunter another position within the

agency contingent upon the receipt of medical documentation indicating her ability to

perform the duties of the position. Settlement Agreement at 1. If Ms. Hunter could not

obtain such medical documentation, the parties agreed that she would apply for

disability retirement. In such case, the VA would not contest her application and would

assist her, upon request, with the processing of her application. Settlement Agreement

at 2.

        On September 14, 2005, Ms. Hunter filed a first petition for enforcement of the

settlement agreement alleging that she had filed a disability retirement application with

the Office of Personnel Management (“OPM”) and had not received a response. She

also alleged that the VA had not adequately assisted her in the processing of the

application. The Administrative Judge (“AJ”) to whom the matter was assigned denied

the first petition for enforcement based on a determination that Ms. Hunter failed to

establish a breach of the settlement agreement by the VA. That decision is not before

us.

        On January 27, 2006, Ms. Hunter filed a second petition for enforcement of the

settlement agreement. In her second petition, Ms. Hunter alleged that the VA had not

provided her another position within the VA and that her application for disability

retirement had been denied. The VA responded to the petition for enforcement by

asserting that, following execution of the settlement agreement, the parties had

numerous communications regarding the VA’s job offer; that Ms. Hunter’s physician did

not ultimately give Ms. Hunter the requisite medical clearance required by the

settlement agreement to appoint her to another position; and that the VA then assisted




2006-3338                                  2
Ms. Hunter with her disability retirement application and submitted it to OPM.       Ms.

Hunter did not submit a response to the VA’s submission.

      In an initial decision, the Administrative Judge (“AJ”) held that Ms. Hunter failed

to show noncompliance by the VA with the terms of the settlement agreement and

dismissed her petition for enforcement. Hunter v. Dep’t of Veterans Affairs, DC-0752-

05-0322-C-2 (MSPB March 15, 2006) (“Initial Decision”). The Initial Decision, became

the final decision of the Board on June 13, 2006 when the Board denied Ms. Hunter’s

petition for review for failure to meet the criteria for review set forth at 5 C.F.R.

§ 1201.115(d).   This appeal follows.    We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                               II.

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      We see no error in the Board’s decision in this case. The AJ denied Ms. Hunter’s

petition for enforcement after finding that Ms. Hunter’s physician had failed to provide

her with medical clearance to return to duty and that the VA had assisted Ms. Hunter

with her disability retirement application. Initial Decision at 3. On appeal, Ms. Hunter

does not contest these findings. Rather, she argues that she has done nothing wrong.




2006-3338                                  3
       The AJ properly determined that the VA’s actions fully complied with the terms of

the settlement agreement.       The settlement agreement imposed two alternative

obligations on the VA. The VA was obligated to offer Ms. Hunter another position within

the agency contingent upon the receipt of medical documentation indicating her ability

to perform the duties of the position. In the alternative, if Ms. Hunter was unable to

receive medical documentation indicating her ability to perform the duties of the

position, the VA was obligated to assist Ms. Hunter with her disability application, an

obligation that the AJ found was met. Because Ms. Hunter did not receive medical

clearance from her physician, the VA was obligated to assist her with her disability

application. Nothing in the settlement agreement guaranteed that OPM would grant Ms.

Hunter disability retirement. OPM is a separate federal entity over which the VA has no

control. It is OPM, not the VA, who makes disability retirement decisions. Because the

VA did assist Ms. Hunter with her disability application, the AJ properly held that Ms.

Hunter failed to show noncompliance by the VA with the settlement agreement.

       For the foregoing reasons, the final decision of the Board dismissing Ms.

Hunter’s petition for enforcement is affirmed.




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