                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN TAMBURI,                                   DOCKET NUMBER
                         Appellant,                  AT-1221-15-0326-X-1

                  v.

     DEPARTMENT OF                                   DATE: September 16, 2016
       TRANSPORTATION,
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL *

           John Tamburi, Marietta, Georgia, pro se.

           William Vines, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         On August 24, 2015, the administrative judge issued a compliance initial
     decision finding the agency in noncompliance with the parties’ May 8, 2015
     settlement agreement, and the matter was referred to the Board for consideration.
     Tamburi      v.     Department        of     Transportation,       MSPB        Docket

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     No. AT-1221-15-0326-C-1, Initial Decision (Aug. 24, 2015); Compliance File
     (CF), Tab 7, Compliance Initial Decision (CID).         For the reasons discussed
     below, we DISMISS the petition for enforcement as settled.
¶2        In the compliance initial decision, the administrative judge found that,
     because the agency provided no evidence that it adjusted the appellant’s time in
     grade to F/G-14 from June 22, 2008, through February 7, 2015, paid the appellant
     the appropriate amount of back pay, or used whatever portion of that back pay
     was necessary to repay the appellant’s notice of indebtedness with the
     Department of Interior, it had materially breached the settlement agreement.
     CID at 3. Accordingly, the administrative judge ordered the agency to adjust the
     appellant’s   time   in    grade   to   F/G-14   from   June 22,   2008,   through
     February 7, 2015, pay the appellant the appropriate amount of back pay, use
     whatever portion of that back pay was necessary to repay the appellant’s notice of
     indebtedness with the Department of Interior, and fully comply with all other
     relevant aspects of 5 C.F.R. § 1201.183. CID at 4.
¶3        After issuance of the compliance initial decision finding noncompliance, the
     parties submitted a document titled “SETTLEMENT AGREEMENT” signed and
     dated by the agency on May 17, 2016, and by the appellant on May 18, 2016.
     Tamburi v.      Department         of      Transportation,     MSPB        Docket
     No. AT-1221-15-0326-X-1, Compliance Referral File (CRF), Tab 14.              The
     document provides for, among other things, the withdrawal of the underlying
     petition for enforcement. Id.
¶4        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 satisfied these requirements: they have entered into a settlement
     agreement, they understand the terms, and they want the Board to enforce those
     terms. CRF, Tab 14 at 6.
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¶5           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 its subject
     matter is within the Board’s jurisdiction.             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 the
     case—the enforcement of the terms of the May 8, 2015 settlement agreement
     under     which   the   appeal     in   Tamburi v.   Department   of   Transportation,
     MSPB Docket No. AT-1221-15-0326-W-1 was dismissed as settled—is within the
     Board’s jurisdiction under 5 C.F.R. § 1201.41(c)(2)(i). Accordingly, we find that
     dismissal of the petition for enforcement is appropriate, and we accept the
     settlement agreement fully executed by the parties on May 18, 2016 into the
     record for enforcement purposes.
¶6           This is the final decision of the Merit Systems Protection Board in this
     petition for enforcement.          Title 5 of the Code of Federal Regulations,
     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:
                                       U.S. 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
                                                                                  4

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 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 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.
