The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY J. PINKNEY, DOCKET NUMBER
Appellant, SF-0752-15-0060-R-1
v.
DEPARTMENT OF THE NAVY, DATE: September 23, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Jerry J. Pinckney, Barstow, California, pro se.
Loren L. Baker, Esquire, Barstow, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This matter is before the Board on the parties’ joint request to reopen this
appeal for the purpose of entering a settlement agreement into the record for
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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enforcement. Reopening Appeal File (RAF), Tab 1. For the reasons set forth
below, we REOPEN the appeal pursuant to 5 C.F.R. § 1201.118 and GRANT the
joint reopening request for the limited purpose of accepting the settlement
agreement into the record for enforcement.
¶2 The Board issued an order that made final the initial decision, which
reversed the appellant’s removal and found that he proved his affirmative
defense of whistleblower reprisal but not his claim of retaliation for engaging in
equal employment opportunity activity. See Pinkney v. Department of the Navy,
MSPB Docket No. SF-0752-15-0060-I-1, Order (Apr. 22, 2016); Petition for
Review (PFR) File, Tab 8. The Board noted in this order that, since the two
Board members could not agree on the disposition of the petition for review, the
initial decision became the Board’s final decision in this appeal. Id. Thereafter,
the parties reached a settlement agreement and filed a joint motion to reopen the
appeal for the express purpose of entering the agreement into the record for
purposes of enforcement. RAF, Tab 1.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, understand its terms, and intend
to have the agreement entered into the record for enforcement by the Board.
See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146, 149 (1988). We find here
that the parties have, in fact, entered into a settlement agreement, that they
understand the terms, and that they want the Board to enforce those terms.
See RAF, Tab 1 at 7.
¶4 In addition, before accepting a settlement agreement into the record for
enforcement purposes, the Board must determine whether the agreement is lawful
on its face, whether the parties freely entered into it, and whether the subject
matter of this appeal is within the Board’s jurisdiction; that is, whether a law,
rule, or regulation grants the Board the authority to decide such a matter.
See Stewart v. U.S. Postal Service, 73 M.S.P.R. 104, 107 (1997). We find here
that the agreement is lawful on its face, that the parties freely entered into it, and
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that the subject matter of this appeal—the removal of a full-time nonprobationary
Federal employee in the competitive service—is within the Board’s jurisdiction
under 5 U.S.C. §§ 7512, 7513, and 7701(a). Initial Appeal File, Tab 3, Subtab 4.
Accordingly, we find it appropriate under these circumstances to reopen this
appeal and grant the parties’ joint request for the limited purpose of entering the
settlement agreement into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulation, section 1201.113 (5 C.F.R.
§ 1201.113)
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
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of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
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prepayment of fees, costs, or other security. 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.