                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EDWARD P. KERNER,                               DOCKET NUMBER
                  Appellant,                         CH-4324-11-0568-X-1
                                                     CH-4324-11-0568-C-1
                  v.

     DEPARTMENT OF THE INTERIOR,
                 Agency.                             DATE: September 8, 2016




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.

           Teresa M. Garrity, Esquire, Fort Snelling, Minnesota, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         On May 28, 2015, the Board found the agency not in compliance with a
     portion of the Board’s August 15, 2013 order, which required the agency to
     consider the appellant for a Veterans’ Recruitment Appointment (VRA) to each of
     the 22 Criminal Investigator positions for which the appellant applied under
     vacancy announcement R9-11-397-309-JH. Kerner v. Department of the Interior,

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     MSPB Docket No. CH-4324-11-0568-C-1, Order (May 28, 2015) (May 28, 2015
     Order); Compliance Petition for Review File, Tab 9. For the reasons discussed
     below, we DISMISS the petition for enforcement as SETTLED.
¶2        In the May 28, 2015 order, the Board found the agency not in compliance
     because the agency’s evidence revealed it incorrectly evaluated the appellant’s
     qualifications for the GS-12 level, rather than the GS-11 level, of the Criminal
     Investigator position. May 28, 2015 Order, ¶ 14. On July 27, 2015, the agency
     filed a response to the Board’s May 28, 2015 order, which included what the
     agency believed to be evidence of full compliance. Kerner v. Department of the
     Interior, MSPB Docket No. CH-4324-11-0568-X-1, Compliance Referral File
     (CRF), Tab 2.    On February 4, 2016, the Board issued an order requiring the
     agency to provide further evidence of compliance. CRF, Tab 4.
¶3        After issuance of the Board’s February 4, 2016 order, the parties submitted
     a document titled “SETTLEMENT AGREEMENT AND RELEASE” signed and
     dated by the parties on May 4, 2016. CRF, Tab 8. The document provides for,
     among    other   things,    the   withdrawal   of   the   underlying   petition   for
     enforcement. Id.
¶4        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 satisfied these requirements: they have entered into a settlement
     agreement; they understand the terms; and they want the Board to enforce those
     terms. CRF, Tab 8 at 4-5.
¶5        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 its subject
     matter is within the Board’s jurisdiction.          See Stewart v. U.S. Postal
     Service, 73 M.S.P.R. 104, 107 (1997). We find here that the agreement is lawful
                                                                                           3

     on its face; that the parties freely entered into it; and that the subject matter of the
     case—the enforcement of the terms in a fully executed settlement agreement
     entered into the record for purposes of dismissing the underlying petition for
     enforcement—is        within    the     Board’s     jurisdiction    under      5 C.F.R.
     § 1201.41(c)(2)(i).    Accordingly, we find that dismissal of the petition for
     enforcement is appropriate, and we accept the settlement agreement into the
     record for enforcement purposes. 2
¶6         This is the final decision of the Merit Systems Protection Board in this
     petition for enforcement.         Title 5 of the Code of Federal Regulations,
     section 1201.113 (5 C.F.R. § 1201.113).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit. You must submit your request to the
     court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

     The court must receive your request for review no later than 60 calendar days
     after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
     2012). If you choose to file, be very careful to file on time. The court has held
     that normally it does not have the authority to waive this statutory deadline and
     that filings that do not comply with the deadline must be dismissed. See Pinat v.
     Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).


     2
       On March 15, 2016, prior to the submission of the settlement agreement, the parties
     submitted a Joint Request to Suspend Proceedings to pursue settlement negotiations.
     CRF, Tab 7. Because we are dismissing this matter as settled, we do not address the
     parties’ request here.
                                                                                  4

      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 United States 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
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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.
      If you are interested in securing pro bono representation for an 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 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
