                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KEVIN MALONE,                                   DOCKET NUMBER
                  Appellant,                         DC-0432-14-0501-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: March 4, 2016
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Cheri L. Cannon, Esquire, Washington, D.C., for the appellant.

           Katherine Brewer, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER
¶1         The agency has petitioned for review of the March 11, 2015 initial decision
     in this appeal. Initial Appeal File (IAF), Tab 43, Initial Decision; Petition for
     Review (PFR) File, Tabs 1, 4-5. For the reasons set forth below, we DISMISS
     the petition for review as settled.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2        After the filing of the petition for review, the parties submitted a document
     entitled “SETTLEMENT AGREEMENT AND GENERAL RELEASE” signed
     and dated by the parties on September 30, 2015.           PFR File, Tab 16.       The
     document provides, among other things, for the dismissal of the petition for
     review. Id., ¶ 3.
¶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
     PFR File, Tab 16, ¶ 4.
¶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 that
     the subject matter of this appeal—the performance-based removal of a full-time
     Federal employee—is within the Board’s jurisdiction under 5 U.S.C. § 4303(c).
     IAF, Tab 6. Accordingly, we find that dismissal of the petition for review “with
     prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
     appropriate under these circumstances, and we accept the settlement agreement
     into the record for enforcement purposes.
¶5        This is the final order 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).
                                                                                3

                    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.

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
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
                                                                                 4

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
prepayment of fees, costs, or other security.    See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
