UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EDMOND AVAKEM,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

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THIS FINAL ORDER IS NONPRECEDENTIAL*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* A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

(IAF), Tab 19, Initial Decision; Petition for Review (PFR) File, Tab 1. For the 

reasons set forth below, we DISMISS 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 things, 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 settlement 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 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 that 

the subject matter of this appeal—a motion for compensatory damages—is 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 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

¶6 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.

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 

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
4

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 

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