Joyce M. Delorme v. Department of the Interior
2017 MSPB 2
| MSPB | 2017Background
- Delorme was appointed as a BIA Police Officer (excepted service) in 2011 and separated in July 2012 during probation; she appealed to the MSPB challenging the separation.
- An initial adjudicator dismissed her appeal for lack of Board jurisdiction because she did not meet the statutory definition of "employee." The Board remanded, finding a nonfrivolous allegation that she had completed a 1‑year probationary period, so a jurisdictional hearing was warranted.
- While jurisdiction remained unresolved on remand, the parties reached a settlement agreement and stipulated it was "submitted for enforcement by the [Board]," but the administrative judge accepted the agreement into the record only to memorialize withdrawal of the appeal and warned the parties he had not decided jurisdiction.
- After dismissal, Delorme filed a petition for enforcement alleging the agency breached the settlement; the AJ dismissed the petition, holding the Board could not enforce a settlement unless it had already determined jurisdiction over the underlying appeal.
- The Board granted review, overruled Shaw and related precedent to the extent they required a prior jurisdictional finding before accepting a settlement into the record for enforcement, and remanded for the AJ to determine whether the parties intended the agreement to be entered into the record for enforcement and to adjudicate compliance if they did.
Issues
| Issue | Delorme's Argument | Department's Argument | Held |
|---|---|---|---|
| Whether the MSPB may enforce a settlement entered into the record absent a prior determination that it has jurisdiction over the underlying appeal | The Board may enforce a settlement made part of the record even if it never made a prior jurisdictional finding | Enforcement requires a prior Board determination that the underlying appeal is within its jurisdiction (Shaw line) | MSPB may enforce settlements entered into the record without a prior jurisdictional finding; Shaw overruled on this point |
| Source of enforcement authority for settlements | Settlement enforcement is authorized by the Board’s statutory powers to enforce its orders | Enforcement should depend on appellate‑jurisdiction findings under §7701 | Enforcement authority derives from 5 U.S.C. §1204(a)(2) (independent of prior §1204(a)(1) jurisdiction finding) |
| Effect of settling before jurisdictional determination | Parties should be able to settle and have the Board enforce the settlement to further public policy favoring settlement | Allowing enforcement without prior jurisdiction would exceed Board authority and undermine statutory limits | Court finds enforcement consistent with statute and public policy; prior requirement impeded settlements |
| Remedy on remand when parties did not intend the agreement to be enforceable by the Board | If parties intended Board enforcement, the Board should enforce; if not, consider mutual mistake and possible reinstatement | Agreement not enforceable by Board if parties didn’t intend it entered for enforcement | Remand: AJ must determine intent to enter agreement for enforcement; if intended, enter it for enforcement and adjudicate compliance; if not, assess mutual mistake and whether to reinstate appeal |
Key Cases Cited
- Perry v. Department of the Army, 992 F.2d 1575 (Fed. Cir. 1993) (MSPB retains jurisdiction to ensure compliance when it approves and makes a settlement part of the record)
- Cruz v. Department of the Navy, 934 F.2d 1240 (Fed. Cir. 1991) (Board has authority to determine its own jurisdiction)
- Braun v. Department of Veterans Affairs, 50 F.3d 1005 (Fed. Cir. 1995) (nonfrivolous allegations can trigger the Board’s jurisdiction‑determination power)
- King v. Reid, 59 F.3d 1215 (Fed. Cir. 1995) (once a settlement is entered into the record, the Board may enforce it under §1204(a)(2) even if it never had prior jurisdiction over the underlying appeal)