                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JERRY J. PINKNEY,                               DOCKET NUMBER
                    Appellant,                       SF-0752-15-0060-R-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 23, 2016
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Jerry J. Pinckney, Barstow, California, pro se.

           Loren L. Baker, Esquire, Barstow, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                       FINAL ORDER

¶1         This matter is before the Board on the parties’ joint request to reopen this
     appeal for the purpose of entering a settlement agreement into the record for


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     enforcement.    Reopening Appeal File (RAF), Tab 1. For the reasons set forth
     below, we REOPEN the appeal pursuant to 5 C.F.R. § 1201.118 and GRANT the
     joint reopening request for the limited purpose of accepting the settlement
     agreement into the record for enforcement.
¶2        The Board issued an order that made final the initial decision, which
     reversed the appellant’s removal and found that he proved his affirmative
     defense of whistleblower reprisal but not his claim of retaliation for engaging in
     equal employment opportunity activity. See Pinkney v. Department of the Navy,
     MSPB Docket No. SF-0752-15-0060-I-1, Order (Apr. 22, 2016); Petition for
     Review (PFR) File, Tab 8. The Board noted in this order that, since the two
     Board members could not agree on the disposition of the petition for review, the
     initial decision became the Board’s final decision in this appeal. Id. Thereafter,
     the parties reached a settlement agreement and filed a joint motion to reopen the
     appeal for the express purpose of entering the agreement into the record for
     purposes of enforcement. RAF, Tab 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 RAF, Tab 1 at 7.
¶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
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     that the subject matter of this appeal—the removal of a full-time nonprobationary
     Federal employee in the competitive service—is within the Board’s jurisdiction
     under 5 U.S.C. §§ 7512, 7513, and 7701(a). Initial Appeal File, Tab 3, Subtab 4.
     Accordingly, we find it appropriate under these circumstances to reopen this
     appeal and grant the parties’ joint request for the limited purpose of entering the
     settlement agreement into the record for enforcement purposes.
¶5        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 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. There
     are several options for further review set forth in the paragraphs below. You may
     choose only one of these options, and once you elect to pursue one of the avenues
     of review set forth below, you may be precluded from pursuing any other avenue
     of review.
     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
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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
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
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prepayment of fees, costs, or other security.         42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review

      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision.      The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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
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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.
