UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

EDMOND AVAKEM, Appellant,

v.
DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER SF

- 0752

- 13

- 1461

- P

- 1

DATE: December 31, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Joel J. Kirkpatrick , Esquire, Plymouth, Michigan, for the appellant.

Kerri E. Bandics , San Francisco, California, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER
¶1 The appellant has petitioned for review of the February 3, 2015 initial
decision in this appeal requesting compensatory damages

. Initial Appeal File

* A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Boar d and admin istrative judges are not required to follow or distinguish them in any future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

(IAF), Tab 19 , Initial Decision ; Petition for Review (PFR) File , Tab 1. For the reasons set forth below, we DIS MISS the petition for review as settled. ¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
June 29, 2015, and by the agency on June 30, 2015. PFR File , Tab 5. The document provides, among other thin gs, for the withdrawal of the petition for
review. Id
., ¶ B. 5. ¶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 settl ement agreement, that they understand the terms, and that they want the Board to enforce those terms. PFR
File , Tab 5, ¶ C. 12. ¶4 In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whethe r 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, an d that the subject matter of this appeal

— a motion for compensatory damages

— i s within the Board’s jurisdiction under 42 U.S.C. § 1981a and 5 C.F.R. § 1201 .204

. IAF,
Tab 1. Accordingly, we find that dismissal of the petition for review “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

¶5 This is the final order of the Merit Systems Protecti on Board in this appeal.
Title 5 of the Code of Federal Regulation, section 1201.113 ( 5 C.F.R. § 1201 .113 ).

NOTICE TO THE PARTIE S OF THEIR ENFORCEMENT RIGHTS ¶6 If the a gency 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 o f 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 APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review You may request review of this final decision on your discrimination claims by the Equal Employment Opportunity Commission (EEOC). See t itle 5 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, NE4

Suite 5SW12G Washington, D.C. 20507 You should send your re quest 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 b y 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 th e 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 l ater 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 y our 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 prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e

- 5 (f) and
29 U.S.C. § 794a

.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board