                           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                  THIS ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                           4

     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.
                                                                                    5

      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.
