                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-3186

                                MARTIN F. SALAZAR,

                                                       Petitioner,

                                          v.

                            DEPARTMENT OF ENERGY,

                                                       Respondent.


      Martin F. Salazar, of Harlem, Georgia, pro se.

      Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Harold D. Lester, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2008-3186

                                 MARTIN F. SALAZAR,

                                                      Petitioner,

                                            v.

                              DEPARTMENT OF ENERGY,

                                                      Respondent.

Petition for review of the Merit Systems Protection Board in AT0752070838-I-1.
                            __________________________

                             DECIDED: September 5, 2008
                            __________________________

Before LINN and DYK, Circuit Judges, and STEARNS, District Judge. *

PER CURIAM.

          Martin F. Salazar (“Salazar”) seeks review of a final decision of the Merit

Systems Protection Board (“the Board”) dismissing his appeal for lack of jurisdiction.

Salazar v. Dep’t of Energy, No. AT-0752-07-0838-I-1 (M.S.P.B. Oct. 26, 2007)

(“Decision”), review denied, Salazar v. Dep’t of Energy, No. AT-0752-07-0838-I-1

(M.S.P.B. Feb. 14, 2008).      Because the Board did not err in finding that it lacked

jurisdiction, or that Salazar failed to show breach of the settlement agreement, we

affirm.




          *
               Honorable Richard G. Stearns, District Judge, United States District Court
for the District of Massachusetts, sitting by designation.
      Salazar was employed as an engineer by the Department of Energy (“the

agency”) in Aiken, South Carolina.     In 2003, the Office of Personnel Management

(“OPM”), and later the agency, conducted an investigation of Salazar, which revealed

that Salazar had given false personal information to the agency. On April 19, 2004, the

agency proposed Salazar’s removal, in part, for making false statements regarding his

educational qualifications and country of birth.   Salazar responded in writing to the

proposed removal, in which he suggested several options for a “win-win scenario,”

including “an early out retirement” or “the opportunity to resign without repercussions.”

In June 2004, Salazar and the agency entered into a settlement agreement to resolve

the agency’s proposed removal, the basic premise of which was that Salazar would

remain employed “until he [wa]s eligible for early retirement from Federal Service, which

is currently calculated as August 25, 2005.” On August 25, 2005, Salazar filed an

“Application for Immediate Retirement,” on which he listed his date of birth as January

30, 1954. The application was granted.

      On February 8, 2006, a federal grand jury indicted Salazar on four counts related

to making false statements in his employment and retirement applications. The jury

subsequently convicted Salazar on two counts: (i) Count 2, which involved his false

statement “that he was born in Nogales, Arizona, when . . . he was born in Nogales,

Mexico”; and (ii) Count 4, which involved his knowing and willful submission of an

application for immediate retirement in which he falsely asserted “that he was born on

January 30, 1954, when, in truth . . ., he was born on January 30, 1958, and was

therefore not eligible for retirement.” Following Salazar’s conviction, OPM notified him




2008-3186                                  2
that, because of his failure to meet the age and service requirements at the time of his

retirement, his annuity would be terminated.

       On July 10, 2007, Salazar appealed to the Board, alleging that his retirement

pursuant to the settlement agreement was involuntary. He also argued, alternatively,

that the agency breached the settlement agreement. The Board dismissed Salazar’s

appeal for lack of jurisdiction, finding that Salazar’s retirement was not involuntary. The

Board’s conclusion was based on Salazar’s express acknowledgment in the settlement

agreement that he was signing the agreement voluntarily, as well as evidence in the

record that the early retirement was Salazar’s idea. Decision at 3. The Board also

rejected Salazar’s contention that the agency had breached the settlement agreement.

The Board concluded that, even if the agency had revealed Salazar’s false statements

to the government in violation of a confidentiality provision, “as a matter of public policy,

an agreement between an agency and a former employee in settlement of an appeal

from an adverse action cannot be construed as barring the United States from making

criminal referrals based on the underlying conduct.”        Decision at 4 (citing Fomby-

Denson v. Dep’t of the Army, 247 F.3d 1366, 1377-78 (Fed. Cir. 2001)). Salazar timely

appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

       Our scope of review of Board decisions is defined and limited by statute. 5

U.S.C. § 7703(c).     We must affirm the Board’s decision unless it is “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule or regulation having been followed; or (3)

unsupported by substantial evidence.” Hayes v. Dep’t of the Navy, 727 F.2d 1535,

1537 (Fed. Cir. 1984). Salazar, as the petitioner, bears the burden of demonstrating




2008-3186                                    3
error in the Board’s decision. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467

(Fed. Cir. 1998).

       We have carefully reviewed the record, as well as Salazar’s arguments urging

reversal, but find no basis to disturb the Board’s decision. Salazar’s arguments on

appeal relate primarily to his contention that his retirement was involuntary. See, e.g.,

Pet’r’s Br. at 3 (arguing that he “was coerced or had no choice but to sign the

agreement.” (emphasis in original)). Based on the evidence in the record, however, the

Board did not err in finding that Salazar’s acceptance of the settlement agreement was

voluntary, and thus plainly did not rise to the “demanding legal standard” we have set

for showing involuntariness. See Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,

1329 (Fed. Cir. 2006) (en banc). Consequently, the Board did not err in concluding that

it lacked jurisdiction over Salazar’s appeal. The Board also did not err in concluding

that Salazar failed to show breach of the settlement agreement. As the Board correctly

concluded, any confidentiality provision in the settlement agreement could not prohibit

the agency, as a matter of public policy, from reporting Salazar’s misconduct to the

appropriate authority for prosecution.    See Fromby-Denson, 247 F.3d at 1377-78.

Moreover, Salazar cannot be heard to complain about any breach, as it is evident from

the criminal proceeding that he is not eligible for early retirement benefits. For these

reasons, the decision of the Board is affirmed.




2008-3186                                   4
