NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

 is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit

 05-3346 

JOSE J. ESTEVEZ, 

Petitioner, 

 v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent, 

 and 

DEPARTMENT OF HOMELAND SECURITY, 

Intervenor. 

__________________________ 

DECIDED: August 3, 2006 

__________________________ 

Before NEWMAN, RADER, and GAJARSA, Circuit Judges. 

NEWMAN, Circuit Judge. 

Mr. Jose J. Estevez petitions for review of the decision of the Merit Systems 

Protection Board dismissing his appeal for lack of jurisdiction.1

 We affirm. 

 BACKGROUND 

 

1 Estevez v. Dep't of Homeland Sec., No. NY0752050010-I-1, 2005 MSPB 

LEXIS 1229, 3827 (Feb. 8, 2005). 
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Mr. Estevez was an Air and Marine Group Supervisor, GS-14, with the Department 

of Homeland Security Bureau of Immigration and Customs Enforcement (the "agency"). He 

supervised approximately ten employees, of whom six were aircraft pilots. On April 7, 2004 

the agency proposed to demote him to a GS-13 aircraft pilot position and reassign him from 

San Juan, Puerto Rico to Jacksonville, Florida, based on a charge of unprofessional and/or 

unacceptable conduct. Deciding Official William F. Oliver considered Mr. Estevez's oral 

reply, and issued a letter dated September 14, 2004 sustaining the charge and finding the 

proposed adverse action "warranted." However, instead of instituting the action, Mr. Oliver 

ruled that "it is my decision that the service efficiency will be served by agreeing to and 

effecting the terms of the attached settlement agreement." The attached agreement was 

signed by Mr. Oliver and provided that the parties would 

agree to voluntarily enter into a Settlement Agreement regarding the decision 

to suspend the Employee without pay for fourteen (14) calendar days for 

Unprofessional and/or Unacceptable Conduct of a Supervisor, as stated in 

the April 7, 2004, Notice of Proposal. This settlement has been reached 

freely and in good faith, in consideration of the mutual promises made below. 

Under the agreement, the agency promised to 

hold the Decision to Suspend in abeyance for a period not to exceed two (2) 

years from the date on which the last party signs this Agreement [and upon] 

successful completion of the terms of this Agreement, the deciding official will 

rescind the Decision to Suspend. 

In turn, Mr. Estevez would promise to "initiate a request for a Voluntary Change to Lower 

Grade," not engage in any misconduct, and waive any appeal rights. 

Mr. Estevez declined to sign the agreement, and instead filed an appeal with the 

MSPB on October 8, 2004. Mr. Oliver then sent another decision letter, dated October 15, 

2004, stating: 
05-3346 3

This letter rescinds my decision letter dated September 14, 2004 in its 

entirety. This action is necessary as a result of your decision to recant on our 

mutual acceptance of Settlement Agreement referred to in the subject letter. 

Therefore the September 14, 2004 letter is replaced in whole by the 

enclosed decision letter dated October 15, 2004. 

The October 15 letter announced that the service efficiency would be served by demoting 

Mr. Estevez to a GS-13 aircraft pilot position and reassigning him to Jacksonville, Florida. 

The October 15 letter, unlike the September 14 letter, explained Mr. Estevez' appeal rights 

and the deadline for appeal, and stated that the "demotion will be effective as soon as 

funds are available to relocate you." 

Meanwhile, the MSPB appeal proceeded as to the September 14 letter. On October 

29, 2004 the administrative judge questioned whether the September 14 letter was a final 

appealable action. Mr. Estevez argued that the agency's rescission of that letter on 

October 15 had not mooted the action because the agency had not returned him to the 

status quo ante. The administrative judge held that the September 14 letter was not a final 

agency action and thus was not subject to review, and dismissed the appeal for lack of 

jurisdiction. The administrative judge observed that Mr. Estevez had taken a separate 

appeal of the October 15, 2004 final decision. The disposition of that second appeal is 

reported at Estevez v. Dep't of Homeland Sec., No. NY0752050021-I-1, 2005 MSPB LEXIS 

1632 (Mar. 31, 2005) (dismissing appeal because the agency rescinded its October 15 

decision and reinstated Mr. Estevez with back pay and benefits). The full Board denied 

review of the September 14 decision, and Mr. Estevez appeals to this court. 

 DISCUSSION 

We review the decision of the Board to determine whether it was arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained 
05-3346 4

without procedures required by law, rule, or regulation; or unsupported by substantial 

evidence. See 5 U.S.C. §7703(c); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 

(Fed. Cir. 1986). Whether the Board has jurisdiction is a question of law, which this court 

reviews de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir. 

2004). 

The Board's holding was based on prudential concerns of ripeness and finality, 

implemented by statute, see 5 U.S.C. §1204(h) ("The Board shall not issue advisory 

opinions.") In Port of Boston Marine Terminal Assoc. v. Rederiaktiebolaget Transatlantic, 

400 U.S. 62, 71 (1970), the Supreme Court summarized the relevant considerations for 

determining the finality of an agency action for purposes of judicial review: 

The relevant considerations in determining finality are whether the process of 

administrative decisionmaking has reached a stage where judicial review will 

not disrupt the orderly process of adjudication and whether rights or 

obligations have been determined or legal consequences will flow from the 

agency action. 

Id. at 71 (1970) (citations omitted). The principles that caution against a federal court's 

intrusion into administrative decisionmaking suggest similar restraint by the Board in its role 

of providing appellate review of agency decisionmaking. See Data General Corp. v. 

Johnson, 78 F.3d 1556, 1565 (Fed. Cir. 1996) ("Although the Board is not a court," it has 

authority to apply judicial doctrines where the same principles of judicial efficiency justify 

their application). The statutes and regulations governing the Board do not contemplate, 

and indeed would be frustrated by, the disruption of orderly agency decisionmaking by the 

issuance of opinions before "rights or obligations have been determined or legal 

consequences will flow from the agency action." Port of Boston, 400 U.S. at 71. 
05-3346 5

The administrative judge in this case relied on the Board's opinion in Murray v. 

Department of Defense, 92 M.S.P.R. 361 (2002) to determine whether the agency's 

decision was final. In Murray the Board considered the issue of whether it had jurisdiction 

of an appellant's appeal of a thirty-day suspension that had been held in abeyance pending 

exhaustion of the administrative process pursuant to a collective bargaining agreement 

provision. The Board held that it had jurisdiction over the suspension held in abeyance 

because "the decision to suspend the appellant has all the attributes of a final agency 

action and the issues are fit for adjudication." Id. at 373. The Board further reasoned that 

"the stay of the action does not affect the agency's decision-making but only the timing of 

the execution of the decision." Id.

Mr. Estevez argues that the Board erred in dismissing his appeal for lack of 

jurisdiction. He states that the agency decision letter of September 14, 2004 was a final 

decision that was stayed pending consideration of the settlement. Mr. Estevez observes 

that under Board precedent, a "stay of the action does not affect the agency's 

decision-making but only the timing of the execution of the decision." Murray, 92 M.S.P.R. 

at 373. Mr. Estevez states that the agency had finally decided as of September 14, 2004 

that he would be subject to a 14-day suspension in the absence of settlement, and that he 

was informed by Ms. Maushumi Carey of the Labor Relations Office of the Department of 

Homeland Security that the September 14 letter would be placed in his official personnel 

record if he did not sign the agreement. Mr. Estevez further states that the decision to 

demote him had been implemented by September 14, 2004, for his duties as supervisor 

were divested and his group was reassigned to another supervisor by that date. 
05-3346 6

The Board replies that in Murray the employing agency had issued a proposed 

adverse decision, set an effective date for the personnel action, and then granted a request 

to stay the implementation of the decision pursuant to a collective bargaining agreement, 

pending appeal to the Board. In contrast, the September 14, 2004 letter to Mr. Estevez did 

not indicate that a final decision had been made to take an adverse action appealable to 

the Board, did not set an effective date for any such action, and did not apprise Mr. Estevez 

of his appeal rights, whereas the October 15 letter to Mr. Estevez exhibited all of these 

indicia of finality. The Board states that the September 14 letter simply reflected a decision 

to enter a settlement agreement, in accordance with its terms, and that final disposition was 

contingent on Mr. Estevez's acceptance or rejection of the settlement offer. The Board 

states that the relevant statute setting forth MSPB jurisdiction, 5 U.S.C. §7512, does not 

provide for review of a change in supervisory responsibilities, or of the placement of a letter 

in a file, or of the other alleged actions taken by the agency as of September 14. 

We agree with the Board and the Department of Homeland Security that the 

September 14 letter was not a final decision appealable to the Board. The agency had 

proposed a settlement and was awaiting response by Mr. Estevez. "Rights" and 

"obligations" had not yet been determined, and Board review would have been "disruptive." 

Port of Boston, 400 U.S. at 71. Unlike the "final decision" in Murray that had been stayed, 

the September 14 letter included no statement of decision, other than a decision to enter 

the settlement agreement if Mr. Estevez were to accept the terms. Further, the September 

14 letter did not state an effective date or advise Mr. Estevez of his appeal rights. The 

promises contained in the agreement were clearly "contingent" on the occurrence of a 

future event, i.e., Mr. Estevez's agreement to the settlement terms. 
05-3346 7

When it became apparent that Mr. Estevez had rejected the settlement, the agency 

rescinded the September 14 letter and issued the letter of October 15, 2004, which states 

the agency's "decision that the service efficiency will best be served by demoting" Mr. 

Estevez. The letter further states that the "demotion will be effective as soon as funds are 

available to relocate you" and advises Mr. Estevez of his appeal rights. This rescission of 

the earlier offer of settlement fully supports the Board's position that the agency had not yet 

taken an appealable final action as of September 14, 2004. 

We conclude that the Board did not err in dismissing Mr. Estevez's appeal of the 

September 14, 2004 letter. The decision is affirmed.