UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TYLER A. MELLICK,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-16-0121-I-1

DATE: July 8, 2016

THIS ORDER IS NONPRECEDENTIAL1

Brook L. Beesley, Alameda, California, for the appellant.

Felippe Moncarz, Esquire, Boise, Idaho, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the regional 

office for further adjudication in accordance with this Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant from the position of Electrician based on 

his violation of a last-chance settlement agreement (LCA) provision that, during 

the 2-year term of the agreement, he would comply with all applicable rules, 

management directives/instructions, regulations, policies, and laws required of 

him by the agency, and that any misconduct that would warrant a suspension or 

greater discipline would be a breach. 2

 Initial Appeal File (IAF), Tab 7, Subtab 4

at 19, 83. Specifically, the agency charged the appellant with four acts of 

misconduct that violated the agreement: (1) ranting at a coworker during a 

meeting using obscene language; (2) failing to follow a supervisory instruction to 

return to the meeting after he left; (3) placing the only working elevator on hold, 

endangering others who might need the elevator in an emergency; and (4) putting 

his arms around a coworker and licking his ear. Id. at 21. 

¶3 The appellant appealed the agency’s action. IAF, Tab 1. He asserted that 

he was provoked by coworkers into the actions listed in the agency’s charges, and 

thus he did not breach the LCA, and the agency did not restrain the coworkers 

despite the appellant’s request for help. Id. He also asserted that the agency 

committed a due process violation by denying his request for an extension to 

reply to the notice that he had breached the LCA. Id. During proceedings below, 

the appellant alleged further that the agency breached the agreement by revealing 

its terms to his coworkers. IAF, Tab 6. 

¶4 In his initial decision, the administrative judge found that the appellant 

failed to show that he complied with the LCA, and that therefore, the waiver of 

Board appeal rights in the agreement was enforceable. IAF, Tab 9, Initial 

Decision (ID) at 9. Further, the administrative judge found that the appellant 

failed to show that the agency breached the agreement by disclosing its existence 

 2 The parties entered into the LCA to resolve a Board appeal of the appellant’s removal. 

Mellick v. Department of the Interior, MSPB Docket No. SF-0752-15-0111-I-1, Initial 

Decision (Mar. 5, 2015). 
3

to the appellant’s coworkers or acted in bad faith by allowing employees to 

provoke the appellant. ID at 9-11. Finally, the administrative judge found that, 

without jurisdiction over the appeal, he could not address the appellant’s 

allegations of disability discrimination, reprisal for filing an equal employment 

opportunity complaint, and due process violations. ID at 11-12. 

¶5 In his petition for review, the appellant alleges that the administrative judge 

erred by weighing conflicting assertions as dispositive at the jurisdictional stage 

to find that the appellant failed to make a nonfrivolous allegation of fact that he 

did not engage in the charged misconduct. He contends further that the removal 

was a new adverse action, not the reinstatement of the adverse action that led to 

and resulted in the LCA, and thus he was denied due process to reply to the new 

adverse action. He also reasserts that the agency breached the confidentiality of 

the agreement by revealing some of its terms to his coworkers, and the 

administrative judge erred by not allowing or rejecting any consideration for the 

appellant to conduct discovery on the issue. Petition for Review File, Tab 1. 

¶6 The Board does not have jurisdiction over a personnel action taken pursuant 

to an LCA in which an appellant waives his right to appeal to the Board. Willis v. 

Department of Defense, 105 M.S.P.R. 466, ¶ 17 (2007); Rosell v. Department of 

Defense, 100 M.S.P.R. 594, ¶ 7 (2005), aff’d, 191 F. App’x 954 (Fed. Cir. 2006). 

To establish that a waiver of appeal rights in an LCA should not be enforced, an 

appellant must show one of the following: (1) he complied with the LCA; (2) the 

agency materially breached the LCA or acted in bad faith; (3) he did not 

voluntarily enter into the LCA; or (4) the LCA resulted from fraud or mutual 

mistake. Willis, 105 M.S.P.R. 466, ¶ 17. 

¶7 As noted, the appellant argues that the administrative judge erred in 

weighing the parties’ evidence concerning whether the appellant made a 

nonfrivolous allegation that he did not breach the LCA regarding the sole charge 

that the administrative judge adjudicated; namely, that he ranted at a coworker 

during a meeting using obscene language. A nonfrivolous allegation is an 
4

allegation of fact that, if proven, could establish a prima facie case that the Board 

has jurisdiction over the appeal. Weed v. Social Security 

Administration, 113 M.S.P.R. 221, ¶ 18 (2010); Ferdon v. U.S. Postal 

Service, 60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has 

made a nonfrivolous allegation of jurisdiction entitling him to a hearing, the 

administrative judge may consider the agency’s documentary submissions; 

however, to the extent that the agency’s evidence constitutes mere factual 

contradiction of the appellant’s otherwise adequate prima facie showing of 

jurisdiction, the administrative judge may not weigh evidence and resolve 

conflicting assertions of the parties, and the agency’s evidence may not be 

dispositive. Weed, 113 M.S.P.R. 221, ¶ 19; Ferdon, 60 M.S.P.R. at 329. 

¶8 The appellant contends that his not remembering whether he disrupted the 

staff meeting, combined with his supervisor not mentioning that the appellant 

used profanity at the meeting, rises to the level of a nonfrivolous allegation of 

fact entitling him to a jurisdictional hearing. We find, however, that even if the 

appellant could prove his assertion of fact—that he cannot remember his actions 

at the meeting—and that this assertion could be considered with the supervisor’s 

sworn statement, it does not constitute a nonfrivolous allegation that he did not 

act as charged. Two witnesses’ statements indicate that the appellant used 

profanity during a rant at the meeting. IAF, Tab 7 at 27-30. The supervisor’s 

statement is not inconsistent with these two other statements. He stated that, 

during the meeting, the appellant stood up, was quite loud, and yelled at a 

coworker. Id. at 31. Thus, the administrative judge properly considered the 

agency’s evidence in support of its charge and found that the agency proved the 

charged misconduct through the generally consistent statements of three 

employees who were present at the meeting and could observe the appellant’s 

behavior. Id. at 27-31; see Weed, 113 M.S.P.R. 221, ¶ 19; Ferdon, 60 M.S.P.R. 
5

at 329. Under these circumstances, we find that the administrative judge properly 

found that the appellant breached the LCA. 

¶9 The appellant asserts that the removal was a new adverse action, not the 

reinstatement of the adverse action that led to and resulted in the LCA and thus he 

was denied due process by not being allowed to reply to the new adverse action. 

The appellant raises this argument for the first time on petition for review. 

Generally, the Board will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence 

not previously available despite the party’s due diligence. Banks v. Department 

of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such 

showing, and so we need not address it. 

¶10 In any event, even if we were to address it, the appellant’s assertion is 

unavailing. The LCA did not provide that, in the event of breach, the agency 

would reinstate the removal action that was settled by the LCA. Rather, the LCA 

provides that, if the appellant commits one infraction or incident of misconduct of 

any type that would merit disciplinary action of suspension or higher and he 

does not submit a voluntary resignation, the agency would separate him for 

violating the LCA. IAF, Tab 7 at 83. Cf. Fiori v. U.S. Postal 

Service, 104 M.S.P.R. 278, ¶ 7 (2006) (finding that an employee may waive the 

right to appeal a disciplinary action to the Board in an LCA; however, the Board 

may have jurisdiction over an appeal where an agency has effected a new and 

different action that was not subject to the waiver). 

¶11 As noted, the appellant contends that the agency breached the 

confidentiality of the agreement by revealing some of its terms to his coworkers. 

The administrative judge correctly found that there is no confidentiality term in 

the LCA itself. See IAF, Tab 7 at 83. However, the LCA was attached and 

incorporated by reference into the settlement of the Board appeal of the 

appellant’s removal, Mellick v. Department of the Interior, MSPB Docket 

No. SF-0752-15-0111-I-1. The settlement agreement, which was submitted into 
6

the record (with the LCA) and made enforceable by the Board, provides that 

“[t]he parties agree to keep the terms and conditions of the Settlement Agreement 

confidential and will not release its contents.” IAF, Tab 7 at 81, 83-85 

(Exhibit A). Under these circumstances, we find that the terms of the LCA were 

an integral part of the settlement agreement and were subject to the agreement’s 

confidentiality provision. 

¶12 The agency’s promise of confidentiality regarding the terms and facts of an 

agreement goes to the essence of the settlement. Thomas v. Department of 

Housing & Urban Development, 124 F.3d 1439, 1442 (Fed. Cir. 1997). When a 

party to a settlement agreement materially breaches the confidentiality term of the 

agreement, the nonbreaching party may elect either to enforce the terms of the 

agreement or to rescind the agreement and reinstate the appeal. Powell v. 

Department of Commerce, 98 M.S.P.R. 398, ¶ 14 (2005); Betterly v. Department 

of Veterans Affairs, 47 M.S.P.R. 63, 66 (1991). 

¶13 If the appellant’s contention—that the agency breached the confidentiality 

provision when the Power Manager told some agency employees of the 

appellant’s LCA—were true, IAF, Tab 6, such a breach would be material 

because it defeats the obvious purpose of the provision to prevent other 

employees from gaining knowledge of the agreement’s terms, Diehl v. U.S. Postal 

Service, 82 M.S.P.R. 620, ¶ 8 (1999). The appellant’s allegation of fact, if 

proven, could establish a prima facie case that the agency breached the 

confidentiality provision of the settlement agreement and that the Board has 

jurisdiction over the appeal. In other words, the appellant’s allegation constitutes 

a nonfrivolous allegation of Board jurisdiction, and he is entitled to a 

jurisdictional hearing. See, e.g., Burrell v. Environmental Protection 

Agency, 81 M.S.P.R. 427, ¶ 15 (1999). 

¶14 Further, the appellant is entitled to engage in discovery regarding the issue 

of whether the agency breached the settlement agreement. Nothing contradicts 

the appellant’s assertion that he initiated discovery regarding the alleged breach. 
7

In his response to the jurisdictional show-cause order, the appellant stated that he 

was unable to provide additional jurisdictional information because he had not 

received a response to his outstanding discovery request. IAF, Tab 6. Under 

some circumstances, prior to holding a jurisdictional hearing, an administrative 

judge may afford the parties a reasonable opportunity to complete discovery and 

order the parties to submit any other evidence that they deem necessary to 

adjudicate the jurisdictional issue. On remand, the administrative judge here 

shall allow the parties an opportunity to engage in discovery on the question of 

agency breach. 

¶15 Consistent with this Remand Order, the administrative judge shall issue a 

new initial decision that makes a finding as to whether the appellant established 

that the agency breached the confidentiality term of the settlement. Id. However, 

if the appellant meets his burden, an order of enforcement with the terms of the 

agreement would not be an effective remedy when, as here, the agency already 

has established that the appellant violated the LCA.

3 Diehl, 82 M.S.P.R. 620, 

¶ 14. Therefore, if the appellant meets his burden to show that the agency 

breached, he is entitled to rescind the agreement and reinstate his removal appeal.

 3 The clean hands doctrine “closes the doors of a court of equity to one tainted with 

inequitableness or bad faith relative to the matter in which he seeks relief, however 

improper may have been the behavior of the defendant.” Precision Instrument 

Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814 

(1945); Special Counsel v. Filiberti, 27 M.S.P.R. 37, 39 (1985) (explaining that the 

clean hands doctrine holds that “the person who seeks equity must do equity”), modified 

on other grounds, 27 M.S.P.R. 577 (1985).

We believe, on remand, that application of the “unclean hands” doctrine could be 

appropriate in this matter. The allegation that the agency breached the agreement 

before it became aware of the appellant’s breach, and the agency’s purported breach 

violating the confidentiality provision would, if proven, clearly be a material one.

Under these circumstances, we conclude that the agency’s actions would be tainted with 

inequitableness or bad faith relative to the matter in which it sought relief, however 

improper may have been the behavior of the appellant. See Precision Instrument 

Manufacturing Co., 324 U.S. at 814. 
8

ORDER

For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board