                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LOUIS J. RIOS,                                   DOCKET NUMBER
                         Appellant,                   AT-0752-16-0619-I-1

                  v.

     DEPARTMENT OF HOMELAND                           DATE: January 3, 2017
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Steven Flig, Atlanta, Georgia, for the appellant.

           Catherine Paler-Amaya, Esquire, Miami, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                        FINAL ORDER

¶1         The appellant has filed a petition for review and the agency has filed a cross
     petition for review of the initial decision, which dismissed the appellant’s
     removal appeal as settled.       For the reasons discussed below, we GRANT the
     petition for review and the cross petition for review, VACATE the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     dismissing the appeal as settled, and DISMISS the appeal as withdrawn.            We
     DENY the parties’ requests to strike the copy of the settlement agreement filed by
     the appellant from the record of the proceedings below.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed a Board appeal challenging his removal from his
     position as a Customs and Border Protection Officer with the agency.           Initial
     Appeal File (IAF), Tab 1 at 1, 4, 12-16. Shortly thereafter, the appellant filed a
     pleading stating that he wished to withdraw the appeal, and attached a copy of a
     fully executed settlement agreement. IAF, Tab 8 at 3-7.
¶3         On the same day that the appellant filed the pleading and settlement
     agreement, the administrative judge dismissed the appeal as settled. IAF, Tab 9,
     Initial Decision (ID) at 1-2. She found that the settlement agreement was lawful
     on its face and that the appellant represented that he understood the agreement
     and was entering into it voluntarily. ID at 1. She further found that, “[a]t the
     request of both parties,” the settlement agreement would be entered into the
     record and that the Board would retain jurisdiction to enforce the agreement.
     ID at 2.
¶4         The appellant has filed a petition for review of the initial decisio n, in which
     he contends that the parties did not want the settlement agreement to be entered
     into the record and requests that the Board dismiss his removal appeal as
     withdrawn. Petition for Review (PFR) File, Tab 1 at 4. The agency has filed a
     cross petition for review, in which it agrees that the administrative judge should
     not have entered the settlement agreement into the record for enforcement
     purposes and joins in the appellant’s request that the removal appeal be dismissed
     as withdrawn. PFR File, Tab 3 at 4-5.
¶5         Before dismissing an appeal based on a settlement agreement, an
     administrative judge must document for the record that the parties reached a
     settlement agreement, understood its terms, and agreed whether or not it was to
                                                                                          3

     be enforceable by the Board. Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146,
     149 (1988).    Here, although the administrative judge stated that the parties
     requested that the settlement agreement be entered into the record for
     enforcement by the Board, on review, both parties assert that they did not make
     such a request. PFR File, Tab 1 at 4, Tab 3 at 4-5. The settlement agreement did
     not state that it would be enforceable by the Board, and the appellant’s pleading
     accompanying the settlement agreement was also silent regarding this issue.
     IAF, Tab 8 at 3-7. We find that the record does not reflect that the parties agreed
     that the settlement agreement would be enforceable by the Board and, therefore,
     the administrative judge erred in entering the settlement agreement into the record
     for enforcement purposes and in finding that the Board retained jurisdiction to
     enforce the agreement.     See Wood v. U.S. Postal Service, 76 M.S.P.R. 420,
     421-22 (1997) (finding that an administrative judge erred in entering a settlement
     agreement into the record for enforcement purposes, when the record did not
     reflect that the parties intended for the agreement to be subject to enforcement by
     the Board); see also Richardson v. Environmental Protection Agency , 5 M.S.P.R.
     248, 250 (1981) (finding that before the Board will enforce a settlement
     agreement, the settlement agreement must be made a part of the record); 5 C.F.R.
     § 1201.41(c)(2) (providing that, for the Board to retain jurisdiction to enforce a
     settlement agreement, the agreement must be entered into the record of the case) .
¶6        We further agree with the parties that, under the circumstances at issue, the
     appellant’s removal appeal should be dismissed as withdrawn, rather than
     dismissed as settled. PFR File, Tab 1 at 4, Tab 3 at 4-5. On review, both parties
     agree that the appellant should not have filed the settlement agreement. PFR File,
     Tab 1 at 4, Tab 3 at 4-5.         In addition, the appellant’s pleading below
     accompanying the settlement agreement requested that the appeal be dismissed as
     withdrawn, rather than as settled. IAF, Tab 8 at 3. Moreover, both below and on
     review, the appellant has made clear, decisive, and unequivocal requests to
     withdraw his appeal. IAF, Tab 8 at 3; PFR File, Tab 1 at 4; see Lincoln v. U.S.
                                                                                            4

     Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010) (finding that the voluntary
     withdrawal of an appeal must be clear, decisive, and unequivocal). Accordingly,
     we vacate the initial decision dismissing the appellant ’s removal appeal as settled
     and dismiss the appeal as withdrawn.
¶7         Finally, on review, both parties request that the Board strike the copy of the
     settlement agreement filed by the appellant from the record of the proceedings
     below. 2 PFR File, Tab 1 at 4, Tab 3 at 5. Although the administrative judge
     erred in entering the settlement agreement into the record for purposes of
     enforcement by the Board, and the Board does not retain jurisdiction to enforce
     the agreement, the Board’s regulations do not provide for striking a properly filed
     pleading, and the parties have failed to demonstrate any basis for doing so here.
     Accordingly, the parties’ motion to strike the copy of the settlement agreement
     filed by the appellant from the record of the proceedings below is denied. 3

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           This Final Order constitutes the Board’s final decision in this matter.
     5 C.F.R. § 1201.113. You have the right to request review of this final decisi on
     by the U.S. Court of Appeals for the Federal Circuit. You must submit your
     request to the court at the following address:




     2
       The appellant has characterized his request as a request to “withdraw” his pleading
     below with the attached settlement agreement, and replace it with a pleading stating that
     the “appellant hereby withdraws his appeal in the above-referenced case.” PFR File,
     Tab 1 at 4.
     3
       We emphasize, however, that, under the Freedom of Information Act (FOIA), all
     agency records are required to be released upon a properly written request unless FOIA
     provides a discretionary exemption from disclosure, see 5 U.S.C. § 552(b)(1)-(9), or
     disclosure would violate the Privacy Act, see 5 U.S.C. §§ 552, 552a. Therefore, the
     Board would consider whether FOIA or the Privacy Act would bar disclosure of the
     settlement agreement should it receive any written request for its disclos ure.
                                                                                   5

                                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
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 th e 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 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
                                                                                  6

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.
