The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY E. MOORE, DOCKET NUMBER
Appellant, SF-0752-16-0055-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 24, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ricky Wood, Barstow, California, for the appellant.
Loren Baker, Esquire, Barstow, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his removal for lack of jurisdiction due to a settlement
agreement wherein he waived his Board appeal rights. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
the regional office for further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The agency proposed to remove the appellant from his position as a
Management and Program Analyst based upon charges of sleeping on duty and
operating a Government vehicle without a valid driver’s license. Initial Appeal
File (IAF), Tab 3 at 42-43. Subsequently, the parties entered into a settlement
agreement, pursuant to which the agency agreed to hold the appellant’s removal
in abeyance until September 30, 2015, and to assist him in processing paperwork
necessary to apply for retirement. Id. at 14, 17. The settlement agreement
provided that the appellant would refrain from initiating any appeals or other
actions against the agency concerning “any matter related” to his employment
that occurred prior to October 1, 2015. Id. at 14-15.
¶3 Consistent with the settlement agreement, the agency removed the
appellant, effective September 30, 2015. IAF, Tab 3 at 13. Thereafter, the
appellant filed a Board appeal challenging his removal, alleging that the agency
failed to make him aware of the seriousness of the charged misconduct, that the
penalty of removal was excessive, and that the agency discriminated against him
and denied him a reasonable accommodation. IAF, Tab 1 at 4, 6.
¶4 The administrative judge issued an acknowledgment order, which stated that
the Board lacks jurisdiction over appeals where an appellant has entered into a
settlement agreement waiving the right to appeal the action in question, and
ordered the appellant to submit evidence and argument establishing Board
jurisdiction over his appeal. IAF, Tab 2 at 2. The appellant failed to respond to
the order, and the agency moved to dismiss the appeal for lack of jurisdiction.
IAF, Tab 3 at 9-10.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 5, Initial Decision (ID). He found that the
appellant had waived his right to appeal his removal in the settlement agreement,
and that, absent an otherwise appealable action, the Board lacked jurisdiction to
review the appellant’s claims that the agency discriminated against him and
3
denied him a reasonable accommodation. ID at 5. The appellant has filed a
petition for review of the initial decision, and the agency has opposed the petition
for review. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 For the first time on review, the appellant contends that the agency
breached the settlement agreement by failing to assist him in processing the
paperwork necessary to apply for retirement. PFR File, Tab 1 at 4. The Board,
though, lacks jurisdiction to enforce the terms of the settlement agreement
because it was reached outside of a Board proceeding and was not entered into the
record for enforcement purposes. See Lopez v. U.S. Postal Service, 71 M.S.P.R.
461, 463 (1996) (finding that the Board lacked jurisdiction to enforce a settlement
agreement that was not entered into the record for enforcement purposes); see
also Cimilluca v. Department of Defense, 77 M.S.P.R. 256, 257–59 (1998)
(vacating an initial decision adjudicating a petition for enforcement on the merits
where a settlement agreement was not entered into the record for enforcement
purposes). Therefore, we find that the Board lacks jurisdiction to consider the
appellant’s claim, raised in the first instance on review, that the agency breached
the settlement agreement. See Lopez, 71 M.S.P.R. at 463.
¶7 The appellant also argues for the first time on review that the agency acted
in bad faith when it drafted the settlement agreement, because it never intended to
assist him in processing the paperwork necessary to apply for retirement. PFR
File, Tab 1 at 4. He contends that his right to appeal therefore “remains intact.”
Id. Although the Board lacks jurisdiction to enforce the settlement agreement, it
may consider the agreement to determine its effect on the appellant’s Board
appeal and any waiver of Board appeal rights. Lee v. U.S. Postal
Service, 111 M.S.P.R. 551, ¶ 4 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010).
The appellant may challenge the validity of the settlement agreement if he
believes that the agreement was unlawful, involuntary, or resulted from fraud or
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mutual mistake. Id. He also may challenge the enforceability of any waiver of
Board appeal rights. Id. Such a waiver is enforceable if its terms are
comprehensive, freely made, and fair, and the execution of the waiver did not
result from agency duress or bad faith. Id.
¶8 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). In the present case, the
administrative judge failed to inform the appellant how to establish that the
waiver of appeal rights did not divest the Board of jurisdiction over his appeal,
i.e., that the waiver was unenforceable or the settlement agreement was invalid.
IAF, Tab 2 at 2. Furthermore, neither the agency’s pleadings nor the initial
decision placed the appellant on notice of how to establish jurisdiction over his
appeal. 2 ID; IAF, Tab 3 at 9-10; see Easterling v. U.S. Postal
Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s
failure to provide an appellant with proper Burgess notice can be cured if the
agency’s pleadings contain the notice that was lacking, or if the initial decision
puts the appellant on notice of what he must do to establish jurisdiction, thus
affording him the opportunity to meet his jurisdictional burden on review).
¶9 Accordingly, we must remand this appeal to the regional office for further
adjudication. See Trotta v. U.S. Postal Service, 73 M.S.P.R. 6, 11 (1997)
(remanding an appeal for further adjudication where an administrative judge
failed to inform an appellant how to establish that the Board had jurisdiction
over his appeal despite a waiver of appeal rights in a settlement agreement). On
remand, the administrative judge should provide the appellant with complete
information on the requirements for establishing jurisdiction over his appeal. If
2
The initial decision stated that the appellant voluntarily entered into the settlement
agreement, but did not indicate that this finding pertained to the validity of the
settlement agreement, or discuss any of the other ways in which the appellant could
establish that the agreement was invalid. ID at 5.
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the appellant makes a nonfrivolous allegation of jurisdiction, then the
administrative judge should hold a jurisdictional hearing.
ORDER
¶10 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.