February 1994, Carson wins settlement of attorney fees


Last Updated 05/22/01
 
UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ST. LOUIS FIELD OFFICE

JOSEPH P. CARSON, Appellant,

v.

DEPARTMENT OF ENERGY, Agency

DOCKET NUMBER: SL-1221-94-0179-W-1

DATE: February 28, 1994

Gary Howard Simpson, Esquire, Bethesda, Maryland, for appellant.

Joyce Schmidt, Washington, D.C., for the agency.

BEFORE

William H. Rima III

Administrative Judge

INITIAL DECISION

Joseph P. Carson appealed the agency's actions that denied his within-grade increase, reprimanded him, and rated him as unacceptable or marginal in his performance evaluations. For the reason set forth below, however, this appeal is DISMISSED.

The parties agreed to settle this case. A written settlement agreement was submitted. Before an appeal can be dismissed on the basis of a settlement, a determination must be made that (1) the parties reached a settlement agreement, (2) they understood the terms of the agreement, and (3) they were afforded an opportunity to enter the agreement into the record for enforcement purposes. See Mahoney v. United States Postal Service, 37 M.S.P.R. 146, 149 (1988). The written agreement reflects that the parties agreed to the settlement terms, they understood those terms, and they intended for their written agreement to be entered into the record for the purpose of enforcement. Accordingly, I find that the three criteria for dismissal have been met.

However, before a settlement agreement can be accepted into the record for the purpose of enforcement, a determination must be made that the agreement is lawful on its face, that it was freely entered into by the parties, and that the appeal is within the Board's jurisdiction. See Richardson v. Environmental Protection Agency, 5 M.S.P.R. 248, 250 (1981), modified, Shaw v. Department of the Navy, 39 M.S.P.R. 586, 594 (1989). Having reviewed the terms of the agreement, I find that it is lawful on its face and was freely reached. Furthermore, I find that the Board has jurisdiction over this appeal. See 5 U.S.C. 1214(a)(3) and 1221(a). I therefore approve the agreement and accept it into the record for the purpose of enforcement.

The settlement agreement is the final and binding resolution of this matter; the Board will retain jurisdiction to ensure compliance of the approved agreement. See 5 C.F.R. 1201.41(c)(2)

DECISION

The appeal is DISMISSED.

FOR THE BOARD:

William H. Rima III

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on April 4, 1994, unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is the last day on which you can file a petition for review with the Board. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit. The paragraphs that follow tell you how and when to file with the

Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition for review if you believe that the settlement agreement is unlawful, was involuntary, or was the result of fraud or mutual mistake. Your petition, with supporting evidence and argument, must be filed with:

The Clerk of the Board

Merit Systems protection Board

1120 Vermont Avenue, NW., Room 806

Washington, DC 20419

Your petition must be postmarked or hand-delivered no later than the date this initial decision becomes final. If you fail to provide a statement with your petition that you have either mailed or hand-delivered a copy of your petition to the agency, your petition will be rejected and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board's final decision, you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before this decision becomes final. To be timely, your petition must be received by the court no later than 30 calendar days after the date this initial decision becomes final.

ENFORCEMENT

If the settlement agreement has been made part of the record, and the agency has not fully complied with the terms of the agreement after this initial decision has become final, you may ask the Board to enforce the settlement agreement by filing a motion with this office.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations.

 

Questions or comments? Contact Joseph P. Carson, P.E.