                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RONALD WHITIKER,                                DOCKET NUMBER
                  Appellant,                         DE-0752-12-0164-X-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: October 22, 2014
       AFFAIRS,
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

           Michael L. Gurnee, Esquire, Denver, Colorado, for the agency.


                                           BEFORE

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



                                       FINAL ORDER

¶1         The appellant filed a petition for enforcement of the Board’s final order in
     MSPB Docket No. DE-0752-12-0164-I-1, which affirmed the administrative


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     judge’s reversal of the appellant’s removal from the position of Food Service
     Worker, WG-7408-4.      MSPB Docket No. DE-0752-12-0164-C-1, Compliance
     File (CF), Tab 1; see MSPB Docket No. DE-0752-12-0164-I-1, Final Order (June
     18, 2013). The appellant alleged in the petition for enforcement that the agency
     failed to comply with the Board’s final decision in this appeal. CF, Tab 1. In a
     January 6, 2014 compliance recommendation, the administrative judge found that
     the agency was not in compliance with the initial decision and recommended that
     the Board take the necessary steps to ensure compliance.      MSPB Docket No.
     DE-0752-12-0164-C-1, Recommendation (Jan. 6, 2014).          For the reasons set
     forth below, we DISMISS the petition for enforcement as settled.
¶2         Following referral of the compliance recommendation to the full Board for
     disposition, the parties submitted a document entitled “Settlement Agreement”
     signed by the parties on September 26, 2014. MSPB Docket No. DE-0752-12-
     0164-X-1, Compliance Referral File (CRF), Tab 6.        The document provides,
     among other things, for the dismissal of the underlying petition for enforcement.
     Id. at 1.
¶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, in fact, have entered into a settlement agreement, that they
     understand the terms, and that they want the Board to enforce those terms. CRF,
     Tab 6 at 4.
            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
                                                                                         3

     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 non probationary
     federal   employee—is     within   the   Board’s    jurisdiction   under   5   U.S.C.
     §§ 7511(a)(1), 7512(1), and 7513(d). Accordingly, we find that dismissal of the
     petition for enforcement “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 RIGHT TO REQUEST
                          ATTORNEY FEES AND COSTS
           You may be entitled to be paid by the agency for your reasonable attorney
     fees and costs. To be paid, you must meet the requirements set out at Title 5 of
     the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
     regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
     you believe you meet these requirements, you must file a motion for attorney fees
     WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                            You
                                                                                   4

must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  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
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
                                                                                5

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.
