             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
              is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                         05-3346


                                   JOSE J. ESTEVEZ,

                                                              Petitioner,
                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent,
                                           and

                      DEPARTMENT OF HOMELAND SECURITY,

                                                              Intervenor.

                           __________________________

                           DECIDED: August 3, 2006
                           __________________________



Before NEWMAN, RADER, and GAJARSA, Circuit Judges.

NEWMAN, Circuit Judge.



      Mr. Jose J. Estevez petitions for review of the decision of the Merit Systems

Protection Board dismissing his appeal for lack of jurisdiction.1 We affirm.

                                     BACKGROUND




      1     Estevez v. Dep't of Homeland Sec., No. NY0752050010-I-1, 2005 MSPB
LEXIS 1229, 3827 (Feb. 8, 2005).
       Mr. Estevez was an Air and Marine Group Supervisor, GS-14, with the Department

of Homeland Security Bureau of Immigration and Customs Enforcement (the "agency"). He

supervised approximately ten employees, of whom six were aircraft pilots. On April 7, 2004

the agency proposed to demote him to a GS-13 aircraft pilot position and reassign him from

San Juan, Puerto Rico to Jacksonville, Florida, based on a charge of unprofessional and/or

unacceptable conduct. Deciding Official William F. Oliver considered Mr. Estevez's oral

reply, and issued a letter dated September 14, 2004 sustaining the charge and finding the

proposed adverse action "warranted." However, instead of instituting the action, Mr. Oliver

ruled that "it is my decision that the service efficiency will be served by agreeing to and

effecting the terms of the attached settlement agreement." The attached agreement was

signed by Mr. Oliver and provided that the parties would

       agree to voluntarily enter into a Settlement Agreement regarding the decision
       to suspend the Employee without pay for fourteen (14) calendar days for
       Unprofessional and/or Unacceptable Conduct of a Supervisor, as stated in
       the April 7, 2004, Notice of Proposal. This settlement has been reached
       freely and in good faith, in consideration of the mutual promises made below.

Under the agreement, the agency promised to

       hold the Decision to Suspend in abeyance for a period not to exceed two (2)
       years from the date on which the last party signs this Agreement [and upon]
       successful completion of the terms of this Agreement, the deciding official will
       rescind the Decision to Suspend.

In turn, Mr. Estevez would promise to "initiate a request for a Voluntary Change to Lower

Grade," not engage in any misconduct, and waive any appeal rights.

       Mr. Estevez declined to sign the agreement, and instead filed an appeal with the

MSPB on October 8, 2004. Mr. Oliver then sent another decision letter, dated October 15,

2004, stating:

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              This letter rescinds my decision letter dated September 14, 2004 in its
       entirety. This action is necessary as a result of your decision to recant on our
       mutual acceptance of Settlement Agreement referred to in the subject letter.
              Therefore the September 14, 2004 letter is replaced in whole by the
       enclosed decision letter dated October 15, 2004.

The October 15 letter announced that the service efficiency would be served by demoting

Mr. Estevez to a GS-13 aircraft pilot position and reassigning him to Jacksonville, Florida.

The October 15 letter, unlike the September 14 letter, explained Mr. Estevez' appeal rights

and the deadline for appeal, and stated that the "demotion will be effective as soon as

funds are available to relocate you."

       Meanwhile, the MSPB appeal proceeded as to the September 14 letter. On October

29, 2004 the administrative judge questioned whether the September 14 letter was a final

appealable action. Mr. Estevez argued that the agency's rescission of that letter on

October 15 had not mooted the action because the agency had not returned him to the

status quo ante. The administrative judge held that the September 14 letter was not a final

agency action and thus was not subject to review, and dismissed the appeal for lack of

jurisdiction. The administrative judge observed that Mr. Estevez had taken a separate

appeal of the October 15, 2004 final decision. The disposition of that second appeal is

reported at Estevez v. Dep't of Homeland Sec., No. NY0752050021-I-1, 2005 MSPB LEXIS

1632 (Mar. 31, 2005) (dismissing appeal because the agency rescinded its October 15

decision and reinstated Mr. Estevez with back pay and benefits). The full Board denied

review of the September 14 decision, and Mr. Estevez appeals to this court.

                                        DISCUSSION

       We review the decision of the Board to determine whether it was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
05-3346                                       3
without procedures required by law, rule, or regulation; or unsupported by substantial

evidence. See 5 U.S.C. §7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140

(Fed. Cir. 1986). Whether the Board has jurisdiction is a question of law, which this court

reviews de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir.

2004).

         The Board's holding was based on prudential concerns of ripeness and finality,

implemented by statute, see 5 U.S.C. §1204(h) ("The Board shall not issue advisory

opinions.") In Port of Boston Marine Terminal Assoc. v. Rederiaktiebolaget Transatlantic,

400 U.S. 62, 71 (1970), the Supreme Court summarized the relevant considerations for

determining the finality of an agency action for purposes of judicial review:

         The relevant considerations in determining finality are whether the process of
         administrative decisionmaking has reached a stage where judicial review will
         not disrupt the orderly process of adjudication and whether rights or
         obligations have been determined or legal consequences will flow from the
         agency action.

Id. at 71 (1970) (citations omitted). The principles that caution against a federal court's

intrusion into administrative decisionmaking suggest similar restraint by the Board in its role

of providing appellate review of agency decisionmaking. See Data General Corp. v.

Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996) ("Although the Board is not a court," it has

authority to apply judicial doctrines where the same principles of judicial efficiency justify

their application). The statutes and regulations governing the Board do not contemplate,

and indeed would be frustrated by, the disruption of orderly agency decisionmaking by the

issuance of opinions before "rights or obligations have been determined or legal

consequences will flow from the agency action." Port of Boston, 400 U.S. at 71.


05-3346                                        4
       The administrative judge in this case relied on the Board's opinion in Murray v.

Department of Defense, 92 M.S.P.R. 361 (2002) to determine whether the agency's

decision was final. In Murray the Board considered the issue of whether it had jurisdiction

of an appellant's appeal of a thirty-day suspension that had been held in abeyance pending

exhaustion of the administrative process pursuant to a collective bargaining agreement

provision. The Board held that it had jurisdiction over the suspension held in abeyance

because "the decision to suspend the appellant has all the attributes of a final agency

action and the issues are fit for adjudication." Id. at 373. The Board further reasoned that

"the stay of the action does not affect the agency's decision-making but only the timing of

the execution of the decision." Id.

       Mr. Estevez argues that the Board erred in dismissing his appeal for lack of

jurisdiction. He states that the agency decision letter of September 14, 2004 was a final

decision that was stayed pending consideration of the settlement. Mr. Estevez observes

that under Board precedent, a "stay of the action does not affect the agency's

decision-making but only the timing of the execution of the decision." Murray, 92 M.S.P.R.

at 373. Mr. Estevez states that the agency had finally decided as of September 14, 2004

that he would be subject to a 14-day suspension in the absence of settlement, and that he

was informed by Ms. Maushumi Carey of the Labor Relations Office of the Department of

Homeland Security that the September 14 letter would be placed in his official personnel

record if he did not sign the agreement. Mr. Estevez further states that the decision to

demote him had been implemented by September 14, 2004, for his duties as supervisor

were divested and his group was reassigned to another supervisor by that date.


05-3346                                      5
       The Board replies that in Murray the employing agency had issued a proposed

adverse decision, set an effective date for the personnel action, and then granted a request

to stay the implementation of the decision pursuant to a collective bargaining agreement,

pending appeal to the Board. In contrast, the September 14, 2004 letter to Mr. Estevez did

not indicate that a final decision had been made to take an adverse action appealable to

the Board, did not set an effective date for any such action, and did not apprise Mr. Estevez

of his appeal rights, whereas the October 15 letter to Mr. Estevez exhibited all of these

indicia of finality. The Board states that the September 14 letter simply reflected a decision

to enter a settlement agreement, in accordance with its terms, and that final disposition was

contingent on Mr. Estevez's acceptance or rejection of the settlement offer. The Board

states that the relevant statute setting forth MSPB jurisdiction, 5 U.S.C. §7512, does not

provide for review of a change in supervisory responsibilities, or of the placement of a letter

in a file, or of the other alleged actions taken by the agency as of September 14.

       We agree with the Board and the Department of Homeland Security that the

September 14 letter was not a final decision appealable to the Board. The agency had

proposed a settlement and was awaiting response by Mr. Estevez.                 "Rights" and

"obligations" had not yet been determined, and Board review would have been "disruptive."

Port of Boston, 400 U.S. at 71. Unlike the "final decision" in Murray that had been stayed,

the September 14 letter included no statement of decision, other than a decision to enter

the settlement agreement if Mr. Estevez were to accept the terms. Further, the September

14 letter did not state an effective date or advise Mr. Estevez of his appeal rights. The

promises contained in the agreement were clearly "contingent" on the occurrence of a

future event, i.e., Mr. Estevez's agreement to the settlement terms.
05-3346                                       6
       When it became apparent that Mr. Estevez had rejected the settlement, the agency

rescinded the September 14 letter and issued the letter of October 15, 2004, which states

the agency's "decision that the service efficiency will best be served by demoting" Mr.

Estevez. The letter further states that the "demotion will be effective as soon as funds are

available to relocate you" and advises Mr. Estevez of his appeal rights. This rescission of

the earlier offer of settlement fully supports the Board's position that the agency had not yet

taken an appealable final action as of September 14, 2004.

       We conclude that the Board did not err in dismissing Mr. Estevez's appeal of the

September 14, 2004 letter. The decision is affirmed.




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