Nina Behrens v. Department of State
CB-7121-20-0013-V-1
MSPBJan 13, 2023Background:
- Appellant filed a request for Board review of an arbitrator’s February 29, 2020 decision under 5 C.F.R. § 1201.155.
- After filing the request for review, the appellant submitted a district-court settlement agreement requiring her to move to dismiss the Board review with prejudice.
- The settlement states it is enforceable in the U.S. District Court for the District of Columbia and expressly contemplates that the parties do not intend Board enforcement.
- The Board must decide whether a settlement exists, whether parties understand and intend its terms, and whether it should be entered into the record for Board enforcement; if entered, the Board must also determine that it is lawful and freely entered.
- The Board found the parties had a settlement, understood its terms, and did not intend Board enforcement, so it declined to enter the agreement into the Board record for enforcement.
- The Board dismissed the appellant’s request for review with prejudice (i.e., normally no refiling) and issued a nonprecedential final order.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parties entered a binding settlement | Appellant: parties executed a settlement and she should be allowed to dismiss per its terms | Agency: settlement exists and is enforceable in D.C. district court, not for Board enforcement | Board: parties entered a settlement and understood its terms |
| Whether parties intended Board enforcement | Appellant: moved to dismiss in accordance with settlement; did not seek Board enforcement | Agency: settlement specifies enforcement in district court and not the Board | Board: parties did not intend the settlement to be entered into the Board record for enforcement |
| Whether the Board must enter the settlement into the record for enforcement | Appellant: sought dismissal per settlement (did not seek Board enforcement) | Agency: settlement provides enforcement forum (district court), so Board need not enforce | Board: declined to enter the settlement into the record; no Board enforcement requested or intended |
| Appropriateness of dismissal with prejudice | Appellant: requested dismissal with prejudice consistent with settlement | Agency: agreed dismissal per settlement terms; enforcement reserved to district court | Board: dismissal with prejudice was appropriate under the circumstances |
Key Cases Cited
- Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146 (1988) (Board must determine whether parties entered a settlement, understand its terms, and intend Board enforcement)
- Massey v. Office of Personnel Management, 91 M.S.P.R. 289 (2002) (before enforcing a settlement entered into the record, Board must determine it is lawful and freely entered)
- Delorme v. Department of the Interior, 124 M.S.P.R. 123 (2017) (Board may enforce settlement agreements entered into the record; noted limitations and later discussed in other rulings)
- Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017) (statutory rules governing choice of forum for discrimination claims filed after Board decisions)