UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
KIRK I. SHEPPERD, DOCKET NUMBER Appellant, DC-0353-23-0445-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 19, 2025 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil Curtis Bonney , Virginia Beach, Virginia, for the appellant.
Eric J. Teegarden , Fort McCoy, Wisconsin, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed his appeal as an impermissible collateral attack on the initial decision in Shepperd v. Department of the Army, MSPB Docket No. DC-0752-20-0366-I-1, which was then pending before the Board on petition for review. For the following reasons, we DENY the petition for review in the instant case and DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
We take notice that on December 19, 2024, while this petition for review was pending before the full Board, the parties entered into a settlement agreement resolving the appellant’s concurrent chapter 75 appeal. Shepperd v. Department of the Army, MSPB Docket No. DC-0752-20-0366-B-1, Remand File (0366 RF), Tab 9; see Woodjones v. Department of the Army, 89 M.S.P.R. 196, ¶ 5 (2001) (taking official notice of actions in another Board appeal). The administrative judge in that appeal determined that the agreement was lawful on its face, that it was freely reached by the parties, and that the parties understood its terms. 0366 RF, Tab 11, Initial Decision. Accordingly, he dismissed the appeal as settled and entered the agreement into the record for enforcement purposes. Id. Neither party filed a petition for review of the initial decision, which is now the final decision of the Board. Under the terms of the settlement agreement, the appellant agreed to the following: Waive all right to further appeal under the MSPB or any other adjudicative body related to his employment, accepting this agreement as a full settlement of Appellant’s claims against the Agency. Additionally, waive all appeal, grievance, and other review rights in any forum, and all administrative or judicial recourse available regarding Appellant’s employment with the Agency. If any such claim, complaint or grievance is currently filed, withdraw said action. Specifically waive the right to pursue any administrative or judicial action in any forum. These matters are closed, and this settlement agreement serves as conclusive evidence of claim and issue preclusion. 0366 RF, Tab 9 at 5. We find that the instant case falls squarely within the scope of the above waiver provision. Accordingly, we dismiss the appeal as settled. Because the appeal has been settled, we need not reach the other issues raised by the appellant on petition for review. See Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 10 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010); Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶ 26 (2006). 3
NOTICE OF APPEAL RIGHTS 2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any 5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
KIRK I. SHEPPERD, DOCKET NUMBER Appellant, DC-0353-23-0445-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 19, 2025 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil Curtis Bonney , Virginia Beach, Virginia, for the appellant.
Eric J. Teegarden , Fort McCoy, Wisconsin, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which dismissed his appeal as an impermissible collateral attack on the initial decision in Shepperd v. Department of the Army, MSPB Docket No. DC-0752-20-0366-I-1, which was then pending before the Board on petition for review. For the following reasons, we DENY the petition for review in the instant case and DISMISS the appeal as settled.
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
We take notice that on December 19, 2024, while this petition for review was pending before the full Board, the parties entered into a settlement agreement resolving the appellant’s concurrent chapter 75 appeal. Shepperd v. Department of the Army, MSPB Docket No. DC-0752-20-0366-B-1, Remand File (0366 RF), Tab 9; see Woodjones v. Department of the Army, 89 M.S.P.R. 196, ¶ 5 (2001) (taking official notice of actions in another Board appeal). The administrative judge in that appeal determined that the agreement was lawful on its face, that it was freely reached by the parties, and that the parties understood its terms. 0366 RF, Tab 11, Initial Decision. Accordingly, he dismissed the appeal as settled and entered the agreement into the record for enforcement purposes. Id. Neither party filed a petition for review of the initial decision, which is now the final decision of the Board. Under the terms of the settlement agreement, the appellant agreed to the following: Waive all right to further appeal under the MSPB or any other adjudicative body related to his employment, accepting this agreement as a full settlement of Appellant’s claims against the Agency. Additionally, waive all appeal, grievance, and other review rights in any forum, and all administrative or judicial recourse available regarding Appellant’s employment with the Agency. If any such claim, complaint or grievance is currently filed, withdraw said action. Specifically waive the right to pursue any administrative or judicial action in any forum. These matters are closed, and this settlement agreement serves as conclusive evidence of claim and issue preclusion. 0366 RF, Tab 9 at 5. We find that the instant case falls squarely within the scope of the above waiver provision. Accordingly, we dismiss the appeal as settled. Because the appeal has been settled, we need not reach the other issues raised by the appellant on petition for review. See Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 10 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010); Swidecki v. U.S. Postal Service, 101 M.S.P.R. 110, ¶ 26 (2006). 3
NOTICE OF APPEAL RIGHTS 2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any 5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6
disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.