UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
PAULA SUTTON, DOCKET NUMBER Appellant, CB-7121-24-0003-V-1
v.
DEPARTMENT OF HOMELAND DATE: April 9, 2025 SECURITY, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sameera Mangena , Oakland, California, for the appellant.
William Igoe , Chicago, Illinois, for the appellant.
Eli Kirschner , Joey Ann Lonjers , and Jonathan Brent , Long Beach, California, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman Cathy A. Harris, Member*
*The Board members voted on this decision before April 9, 2025.
FINAL ORDER
Pursuant to the Board’s instructions in this arbitration review matter, the administrative judge issued a February 13, 2025 Initial Decision in which she dismissed the appeal as settled. Sutton v. Department of Homeland Security,
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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. CB-7121-24-0003-H-1, Referral Proceeding File (RPF), Tab 10, Initial Decision. The case was forwarded back to the Board and neither party has filed exceptions to the administrative judge’s decision. For the reasons set forth below, we MODIFY the Initial Decision to clarify that it is a recommended decision and ADOPT the administrative judge’s recommendation to dismiss the appeal as settled. The administrative judge erred in issuing an initial decision instead of a recommended decision. Pursuant to the Board’s authority in 5 C.F.R. § 1201.155(e), we forwarded this matter to the Board’s Western Regional Office for an administrative judge to make recommended findings on the appellant’s claim of reprisal for the Rehabilitation Act protected activities of requesting reasonable accommodations and filing equal employment opportunity complaints opposing disability discrimination. See Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 15 (2014) (forwarding the appellant’s claims of discrimination and retaliation to the regional office for further adjudication and for the administrative judge to make recommended findings); Sutton v. Department of Homeland Security, MSPB Docket No. CB-7121-24-0003-V-1, Order, ¶¶ 35-37 (Nov. 25, 2024). Thus, we modify the Initial Decision to clarify that it is a recommended decision but nevertheless adopt the administrative judge’s recommendation to dismiss the appeal as settled. During the referral proceeding below, the parties submitted a document entitled “SETTLEMENT AGREEMENT,” signed by the parties on February 12, 2025. The document provides, among other things, for the withdrawal of the appeal. Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they 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). In addition, before accepting a settlement agreement into the record 3
for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017). Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. RPF, Tab 8. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. This is the final decision of the Merit Systems Protection Board on the appellant’s request for arbitration review. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).
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 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).
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
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: 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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
PAULA SUTTON, DOCKET NUMBER Appellant, CB-7121-24-0003-V-1
v.
DEPARTMENT OF HOMELAND DATE: April 9, 2025 SECURITY, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sameera Mangena , Oakland, California, for the appellant.
William Igoe , Chicago, Illinois, for the appellant.
Eli Kirschner , Joey Ann Lonjers , and Jonathan Brent , Long Beach, California, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman Cathy A. Harris, Member*
*The Board members voted on this decision before April 9, 2025.
FINAL ORDER
Pursuant to the Board’s instructions in this arbitration review matter, the administrative judge issued a February 13, 2025 Initial Decision in which she dismissed the appeal as settled. Sutton v. Department of Homeland Security,
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. CB-7121-24-0003-H-1, Referral Proceeding File (RPF), Tab 10, Initial Decision. The case was forwarded back to the Board and neither party has filed exceptions to the administrative judge’s decision. For the reasons set forth below, we MODIFY the Initial Decision to clarify that it is a recommended decision and ADOPT the administrative judge’s recommendation to dismiss the appeal as settled. The administrative judge erred in issuing an initial decision instead of a recommended decision. Pursuant to the Board’s authority in 5 C.F.R. § 1201.155(e), we forwarded this matter to the Board’s Western Regional Office for an administrative judge to make recommended findings on the appellant’s claim of reprisal for the Rehabilitation Act protected activities of requesting reasonable accommodations and filing equal employment opportunity complaints opposing disability discrimination. See Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 15 (2014) (forwarding the appellant’s claims of discrimination and retaliation to the regional office for further adjudication and for the administrative judge to make recommended findings); Sutton v. Department of Homeland Security, MSPB Docket No. CB-7121-24-0003-V-1, Order, ¶¶ 35-37 (Nov. 25, 2024). Thus, we modify the Initial Decision to clarify that it is a recommended decision but nevertheless adopt the administrative judge’s recommendation to dismiss the appeal as settled. During the referral proceeding below, the parties submitted a document entitled “SETTLEMENT AGREEMENT,” signed by the parties on February 12, 2025. The document provides, among other things, for the withdrawal of the appeal. Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they 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). In addition, before accepting a settlement agreement into the record 3
for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017). Here, we find that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. RPF, Tab 8. Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. In addition, we find that the agreement is lawful on its face and freely entered into, and we accept the settlement agreement into the record for enforcement purposes. This is the final decision of the Merit Systems Protection Board on the appellant’s request for arbitration review. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).
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 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).
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
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: 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. 5
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 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 6
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 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 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 7
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.
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. 8
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.