                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DOUGLAS SMITH,                                  DOCKET NUMBER
                  Appellant,                         PH-3443-16-0208-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 23, 2016
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Ronald J. Hunziker, New Cumberland, Pennsylvania, for the appellant.

           Steven Richard Dade, New Cumberland, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                       FINAL ORDER

¶1         The appellant has petitioned for review of the March 30, 2016 initial
     decision in this appeal.     Initial Appeal File (IAF), Tab 8, Initial Decision;


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Petition for Review (PFR) File, Tab 1.      For the reasons set forth below, we
     VACATE the initial decision and DISMISS the appeal as settled.
¶2        After the filing of the petition for review, the parties submitted a document
     titled “SETTLEMENT AGREEMENT AND WITHDRAWAL OF PETITION
     FOR REVIEW AND INITIAL APPEAL,” signed and dated by the appellant on
     June 20, 2016, and by the agency on June 24, 2016. PFR File, Tab 3. The
     document provides, among other things, for the withdrawal of the appeal. Id.
¶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 agree that the agreement will not be entered
     into the record for enforcement by the Board.           PFR File, Tab 3 at 5.
     Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
     (i.e., the parties normally may not refile this appeal) is appropriate under these
     circumstances.
¶4        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 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
                                                                                  3

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).
         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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
