Judalon J. Harris v. Department of Defense

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JUDALON J. HARRIS,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
-------------------------------------------------
JUDALON J. HARRIS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1677
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH-0752-17-0303-I-1, CH-3443-16-0593-I-1.
______________________
Decided: May 21, 2024
______________________
Case: 23-1677 Document: 42 Page: 1 Filed: 05/21/2024

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HARRIS v. DEFENSE 2
J UDALON J. HARRIS , Anderson, IN, pro se.
J OSHUA M OORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent Department of Defense. Also rep-
resented by BRIAN M. BOYNTON, STEVEN J OHN G ILLINGHAM ,
P ATRICIA M. MC CARTHY .
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent Merit Systems Protection Board. Also rep-
resented by ALLISON J ANE B OYLE, K ATHERINE MICHELLE
SMITH .
______________________
Before P ROST , CHEN, and HUGHES , Circuit Judges.
P ER CURIAM .
Judalon Harris, appearing pro se, challenges two sepa-
rate decisions from the U.S. Merit Systems Protection
Board, each dismissing her petitions for review for lack of
jurisdiction. In MSPB Docket No. CH-3443-16-0593-I-1,
the Board dismissed Ms. Harris’s appeal because she did
not establish that she was subjected to an appealable ad-
verse action. In MSPB Docket No. CH-0752-17-0303-I-1,
the Board dismissed Ms. Harris’s appeal as settled and
thus withdrawn. For the following reasons, we affirm both
dismissals.
I
Ms. Harris was an accounting technician for the De-
partment of Defense, Defense Finance and Accounting Ser-
vice (DFAS), in Indianapolis, Indiana. MSPB S.A. 8–9; see
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HARRIS v. DEFENSE 3
also DoD S.A. 8.1 She worked for the federal government
for 13 years, and her performance was considered success-
ful for the four years prior to her removal. MSPB S.A. 88;
DoD S.A. 40. On appeal, Ms. Harris challenges the agency’s
actions prior to her removal in MSPB Docket No. CH-3443-
16-0593-I-1 and during the removal itself in MSPB Docket
No. CH-0752-17-0303-I-1.
A
We first describe the pre-removal proceedings before
turning to the removal itself. In a June 8, 2016 decision
from the DFAS, Ms. Harris was suspended from duty with-
out pay from June 12, 2016 to June 25, 2016 because she
failed to comply with a supervisory instruction and be-
haved inappropriately towards a coworker. MSPB S.A. 25–
27. Ms. Harris “was [also] charged with eleven hours of
AWOL” (absence without leave) during a September 2016
pay period. MSPB S.A. 9.
Ms. Harris appealed her 14-day suspension and the
AWOL charge. MSPB S.A. 28–33; see also MSPB S.A. 67
(“It appears that you are appealing either the agency’s de-
cision to charge you with AWOL (Absence Without Leave)
in late August or September 2016 or a 14-day suspension
without pay in June 2016 or both.”). She also stated that
she was being subjected to a hostile work environment and
harassment. MSPB S.A. 59–65. The administrative judge,
in an Acknowledgment Order, ordered Ms. Harris to “file
evidence and argument to prove that th[e] action [wa]s
1 Citations to “MSPB S.A.” refer to the Supplemental
Appendix accompanying Respondent U.S. Merit Systems
Protection Board’s Informal Brief, ECF No. 36. Similarly,
citations to “DoD S.A.” refer to the Supplemental Appendix
attached to Respondent Department of Defense’s Informal
Brief, ECF No. 34.
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HARRIS v. DEFENSE 4
within the Board’s jurisdiction,” MSPB S.A. 68, but
Ms. Harris never did, MSPB S.A. 9.
On October 19, 2016, the administrative judge issued
an initial decision dismissing Ms. Harris’s appeal for lack
of jurisdiction. MSPB S.A. 8–12. Regarding Ms. Harris’s
14-day suspension, the administrative judge noted that the
Board did not have jurisdiction to consider the lawfulness
of suspensions of 14 days or less. MSPB S.A. 10 (citing,
among other sources, Lockridge v. U.S. Postal Serv., 121
F.3d 727 (Table) (Fed. Cir. 1997) (nonprecedential) (“Be-
cause pursuant to 5 U.S.C. § 7512 (1994) the Board has ju-
risdiction over suspensions only if they exceed fourteen
days, it correctly ruled that it did not have jurisdiction to
consider whether or not Lockridge’s [6-day] suspension was
lawful.”)). The administrative judge also concluded the
Board was without jurisdiction to consider Ms. Harris’s
challenge to her AWOL charge. MSPB S.A. 11 (citing Maki
v. U.S. Postal Serv., 41 M.S.P.R. 449, 453 (1989) (“The
Board and the courts have consistently held that AWOL,
by itself, is not an appealable matter.”)). Finally, the ad-
ministrative judge held that the Board lacked jurisdiction
to consider Ms. Harris’s hostile work environment and dis-
crimination claims absent “an otherwise appealable mat-
ter.” MSPB S.A. 11 (citing Cruz v. Dep’t of Navy, 934 F.2d
1240, 1248 (Fed. Cir. 1991) (en banc)). Therefore, the ad-
ministrative judge dismissed Ms. Harris’s appeal for lack
of jurisdiction. MSPB S.A. 12.
Ms. Harris petitioned for review by the Board, but the
petition was denied, and the Board adopted the adminis-
trative judge’s initial decision as the final decision of the
Board.2 MSPB S.A. 2; see also 5 C.F.R. § 1201.113(b) (“If
2 In her petition for review before the Board, MSPB
S.A. 75–79, Ms. Harris also invoked 5 U.S.C. § 2302(b),
which “prohibits an agency from penalizing its employees
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HARRIS v. DEFENSE 5
the Board denies all petitions for review, the initial deci-
sion [of the administrative judge] will become final when
the Board issues its last decision denying a petition for re-
view.”). Ms. Harris timely appealed to this court. We have
jurisdiction to review the final decision of the Board under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
B
We next describe Ms. Harris’s removal from her posi-
tion in 2017 for “absence without leave (AWOL) and failure
to follow proper leave request procedures.” DoD S.A. 39–
41. Ms. Harris appealed her removal to the Board. DoD
S.A. 8.
Before the scheduled hearing in Ms. Harris’s appeal,
the agency and Ms. Harris agreed to enter into a settle-
ment agreement. DoD S.A. 9. Pursuant to the agreement,
the agency would cancel Ms. Harris’s removal, substitute
it with a voluntary resignation, and update her agency rec-
ord accordingly, and in turn Ms. Harris would “withdraw[]
the above-captioned MSPB appeal with prejudice” and re-
ceive a one-time payment of $5,000. DoD S.A. 31–34.3 The
agreement stated that it was “open for acceptance by
[Ms. Harris] for a period of twenty-one (21) days” and that
for whistleblowing.” Rickel v. Dep’t of Navy, 31 F.4th 1358,
1364 (Fed. Cir. 2022). In denying Ms. Harris’s petition, the
Board noted that Ms. Harris has not established that “she
exhausted her administrative remedies by first filing a
complaint with the Office of Special Counsel,” so the Board
lacked jurisdiction over this claim as well. MSPB S.A. 2–3.
3 Neither party alleges that the terms of the settle-
ment agreement, as read into the record during the hearing
before the administrative judge, materially differ from the
terms of the settlement agreement as they appear in our
record at DoD S.A. 31–34. Therefore, we rely on that writ-
ten version of the agreement to resolve this appeal.
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HARRIS v. DEFENSE 6
for “seven (7) days following the execution of the Agree-
ment,” Ms. Harris could revoke the agreement. DoD
S.A. 33. If Ms. Harris did not revoke the agreement by “no-
tify[ing] the Agency’s Office of General Counsel in writing,”
the agreement became effective on the eighth day. DoD
S.A. 33.
During the July 13, 2017 hearing before the adminis-
trative judge, the settlement agreement was read into the
record, with Ms. Harris “agree[ing] to the terms as read by
agency counsel and stat[ing] she understood and agreed to
the terms.” DoD S.A. 9. When the agency and Ms. Harris’s
representatives sought to sign a written copy of the settle-
ment agreement on August 3, 2017, Ms. Harris attempted
to reject what she viewed as a settlement offer. DoD S.A. 9;
DoD S.A. 34 (Ms. Harris writing, on the settlement agree-
ment, that “I, Judalon J. Harris reject this offer. August 3,
2017”). Ms. Harris’s representative nonetheless signed the
agreement on August 3, 2017. DoD S.A. 35–38. The agency
thereafter moved to dismiss Ms. Harris’s appeal, con-
sistent with the terms of the settlement agreement. See
DoD S.A. 25.
On August 17, 2017, the administrative judge issued
an initial decision dismissing Ms. Harris’s appeal as set-
tled. DoD S.A. 8. The administrative judge found that “the
parties reached an oral settlement on July 13, 2017, that
was placed on the record and agreed to by [Ms. Harris].”
DoD S.A. 9. In an order issued the same day, the adminis-
trative judge noted that Ms. Harris’s representatives
“agreed that the appeal was settled on July 13, 2017.” DoD
S.A. 25. The administrative judge explained that “[t]he
written settlement was merely to be memorialized for the
record.” DoD S.A. 9. Therefore, the administrative judge
concluded that “the agreement became enforceable on July
21, 2017, the eighth day after the 7-day revocation period.”
DoD S.A. 9. As a result, on August 3, 2017, there was no
offer of settlement for Ms. Harris to reject. DoD S.A. 9.
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HARRIS v. DEFENSE 7
The administrative judge also found that the “settle-
ment agreement is lawful on its face and the parties freely
entered into the agreement, underst[oo]d its terms, and in-
tend[ed] to have the agreement entered into the record.”
DoD S.A. 10; see also DoD S.A. 9. The administrative judge
noted that Ms. Harris “was not happy about having a pre-
vious suspension on her record [but] that was not an issue
before the Board.” DoD S.A. 9. The administrative judge
then dismissed Ms. Harris’s appeal for lack of jurisdiction
because, pursuant to the terms of the settlement agree-
ment, the appeal was withdrawn. DoD S.A. 10; see also
Tacujan v. U.S. Postal Serv., 109 M.S.P.R. 553, 556 (2008)
(“The withdrawal of an appeal is an act of finality that re-
moves the appeal from the Board’s jurisdiction . . . .”).
Ms. Harris petitioned for review by the Board, and the
Board denied the petition and adopted the administrative
judge’s initial decision as the Board’s final decision. DoD
S.A. 2. Ms. Harris timely appealed, and we have jurisdic-
tion under 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
II
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see also Edenfield v. Dep’t of Veterans
Affs., 54 F.4th 1357, 1359 (Fed. Cir. 2022).
“Whether the [B]oard had jurisdiction to adjudicate a
case is a question of law, which we review de novo.” Forest
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
“[A]lthough we may review freely the Board’s conclusion
that it did not have jurisdiction over [Ms. Harris’s] appeal,
we are bound by the [administrative judge’s] factual deter-
minations unless those findings are not supported by
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HARRIS v. DEFENSE 8
substantial evidence.” See Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998).
III
The Board’s jurisdiction is not plenary. See Maddox v.
Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985). “The
Board’s appellate jurisdiction is limited to agency actions
over which it has been granted jurisdiction by law, rule, or
regulation.” Rosario-Fabregas v. Merit Sys. Prot. Bd., 833
F.3d 1342, 1345 (Fed. Cir. 2016) (citing 5 U.S.C. § 7701(a)).
Only some actions can be appealed to the Board, including
removals, suspensions for more than 14 days, reductions in
pay or grade, and a furlough of 30 days or less, subject to
the exceptions provided by statute. See 5 U.S.C. §§ 7512,
7513(d); see also Rosario-Fabregas, 833 F.3d at 1345.
Although we construe Ms. Harris’s pleadings liberally,
see Estelle v. Gamble, 429 U.S. 97, 106 (1976), Ms. Harris
still bears the burden of establishing that the Board has
jurisdiction over her appeals, see Fields v. Dep’t of Just.,
452 F.3d 1297, 1302 (Fed. Cir. 2006).
A
We first consider Ms. Harris’s appeal of the Board’s de-
cision regarding her 14-day suspension and AWOL status.
We agree with the Board that Ms. Harris did not establish
that she was subjected to an appealable adverse action un-
der 5 U.S.C. § 7512.
Ms. Harris contends that her 14-day suspension was
invalid and the result of wrongful accusations levied
against her. See Appellant’s Informal Br. 4–5. But
Ms. Harris does not argue that her suspension was “for
more than 14 days,” as it must be for the Board to have
jurisdiction. See 5 U.S.C. § 7512(2). Instead, Ms. Harris fo-
cuses on the merits of her suspension. See, e.g., Appellant’s
Informal Br. 4. However, as the Board explained, it lacks
jurisdiction to consider this claim. Synan v. Merit Sys. Prot.
Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985) (explaining that
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HARRIS v. DEFENSE 9
suspensions totaling 14 days or less “could not be appealed”
under 5 U.S.C. § 7512).
Ms. Harris also argues that she was wrongly consid-
ered AWOL for 11 hours in August 2016. Appellant’s Infor-
mal Br. 5–6. Ms. Harris asserts that there was a “mistake
surrounding [her] leave [on] 8-31-16.” Appellant’s Informal
Br. 2. Even so, “AWOL, by itself, is not an appealable mat-
ter.” Maki, 41 M.S.P.R. at 453. Here, too, the Board did not
err in dismissing Ms. Harris’s appeal.
Ms. Harris next asserts that she experienced harass-
ment and discrimination during her employment. Appel-
lant’s Informal Br. 6–7. Absent adverse action on behalf of
the agency, the Board lacks jurisdiction to consider
Ms. Harris’s harassment and discrimination claims. See
Cruz, 934 F.2d at 1245–46.
Finally, Ms. Harris argues that she was improperly
placed in AWOL status in April 2016 because she misun-
derstood when a suspension was to begin. See Appellant’s
Informal Br. 4–5. But the Board considered Ms. Harris’s
AWOL status only “during the pay period ending Septem-
ber 3, 2016.” MSPB S.A. 9; see also MSPB S.A. 2. From the
record on appeal, there is no evidence that the Board was
presented with Ms. Harris’s argument regarding her
AWOL status in April 2016. Therefore, Ms. Harris’s claim
is not properly before the court, and we decline to consider
it further. See Henry v. Dep’t of Navy, 902 F.2d 949, 953
(Fed. Cir. 1990) (“This issue was not raised before the [ad-
ministrative judge] or the Board. Thus, this argument is
not properly before this court.”).
Even construing Ms. Harris’s filings generously, the
Board did not err in dismissing Ms. Harris’s appeal for lack
of jurisdiction, and we affirm the Board’s dismissal of
MSPB Docket No. CH-3443-16-0593-I-1.
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HARRIS v. DEFENSE 10
B
We now consider Ms. Harris’s appeal of the Board’s
separate decision regarding the impact of the settlement
agreement. Ms. Harris focuses on the merits of her re-
moval, asserting it was “unfair” because it was the result
of two mistakes. Appellant’s Informal Br. 4–6. Regardless
of the propriety of Ms. Harris’s removal, we need only de-
cide whether the Board erred in dismissing the case for
lack of jurisdiction. Considering Ms. Harris’s arguments
and the evidence of record regarding the settlement agree-
ment, we affirm the Board’s dismissal.
“[A]n oral settlement agreement is binding on the par-
ties, particularly when the terms are memorialized into the
record.” Sargent v. Dep’t of Health & Hum. Servs., 229 F.3d
1088, 1090 (Fed. Cir. 2000). “[A]n appellant must show that
the agreement is unlawful, was involuntary, or was the re-
sult of fraud or mutual mistake” before the agreement can
be set aside. Id. at 1091. Here, the administrative judge
found that the “settlement agreement is lawful on its face
and the parties freely entered into the agreement, un-
derst[oo]d its terms, and intend[ed] to have the agreement
entered into the record” on July 13, 2017. DoD S.A. 10.
Moreover, in that agreement, Ms. Harris agreed to with-
draw her appeal with prejudice. DoD S.A. 9; DoD S.A. 31
(“Appellant agrees to withdrawal the above-captioned
MSPB appeal with prejudice.”).
On appeal, Ms. Harris does not cite to any evidence un-
dermining the Board’s findings, other than stating that she
felt pressured to accept the settlement agreement.4
4 In her briefing, Ms. Harris repeatedly alludes to an
“Alternative Suspension Agreement” and feeling pressured
to sign it. Appellant’s Informal Br. 2, 5. This appears to be
a separate agreement from the settlement agreement, and
as such, we need not consider its terms.
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HARRIS v. DEFENSE 11
Appellant’s Informal Br. 5. Based on our review of the rec-
ord, we are persuaded that the Board’s findings that
Ms. Harris entered, albeit unhappily, into the settlement
agreement on July 13, 2017 and did not revoke her ac-
ceptance before July 21, 2017 are supported by substantial
evidence. Therefore, we agree that Ms. Harris could not re-
voke her acceptance on August 3, 2017, and we affirm the
Board’s dismissal of MSPB Docket No. CH-0752-17-0303-
I-1.
IV
We have considered Ms. Harris’s additional arguments
but conclude that the Board did not err in dismissing either
of Ms. Harris’s appeals for lack of jurisdiction. We affirm
both dismissals.
AFFIRMED
COSTS
No costs.
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