                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID SKINNER,                                  DOCKET NUMBER
                  Appellant,                         CH-0752-15-0035-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 22, 2015
       SECURITY,
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

           Alex L. Kutrolli and Joseph Rieu, Esquire, Arlington, Virginia, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                       FINAL ORDER

¶1         The agency has filed an untimely petition for review of the February 19,
     2015 initial decision in this appeal. Initial Appeal File (IAF), Tab 21, Initial


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Decision; 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
     entitled “SETTLEMENT AGREEMENT & RELEASE” signed and dated by the
     appellant on May 29, 2015, and by the agency on June 2, 2015. PFR File, Tab 1.
     The document provides, among other things, for the withdrawal of the appeal.
     Id., ¶ 1.
¶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 1, ¶ 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 indefinite suspension of a full time Federal
     employee in the excepted service—is within the Board’s jurisdiction under
     5 U.S.C. §§ 7511-7513. IAF, Tab 10, Subtab 4a.           Accordingly, we find that
     dismissal of the petition for appeal “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.
                                                                                       3

¶4        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).

                         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 review of this final decision by the United
     States 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).
           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
                                                                                   4

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 your appeal to
the 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.
