UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAMON V. BROWN,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0752-17-0611-I-1

DATE: January 23, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Damon V. Brown, Inglewood, California, pro se.

Catherine V. Meek, Esquire, Long Beach, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only in the following circumstances: the initial decision contains 

erroneous findings of material fact; the initial decision is based on an erroneous 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review. Except as expressly 

MODIFIED to dismiss this appeal for lack of jurisdiction based on a settlement 

agreement between the parties in which the appellant waived his right to appeal to 

the Board, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant, who was employed at the agency as a Mail Processing Clerk, 

suffered an on-the-job injury on March 25, 2012. Initial Appeal File (IAF), Tab 1 

at 77-78. After returning to work, the appellant had numerous absences, and the 

agency subsequently issued him a Letter of Warning regarding his absences in 

November and December 2013. IAF, Tab 5 at 26-27. The agency removed the 

appellant effective August 15, 2015. IAF, Tab 5 at 36-37, 41-44. In November 

2015, the appellant, who was represented at the time, entered into a settlement 

agreement with the agency. Id. at 27-35. In that agreement, the agency agreed to 

remove the August 2015 disciplinary removal from his personnel file and instead 

separate him, effective January 1, 2016, with a nondisciplinary removal for 

medical inability to perform the duties of his position, and the appellant agreed to 

subsequently apply for disability retirement. Id. The appellant also agreed to 

waive any and all appeal rights to the Board for “causes of action of any kind, 

nature, and character, known and unknown, which Complainant may now have or 
3

has ever had against Postal Service, or any of its officers, agents, and employees, 

which arose in whole or in part from Complainant’s employment relationship 

with Postal Service, and which are based upon incidents, occurrences, or actions 

taking place prior to the execution of this agreement.” Id. at 28. On January 25,

2017, the appellant filed this appeal in which he alleged that he was challenging

the following actions: his removal, the failure to restore, involuntary resignation, 

involuntary retirement, a reduction in force, and violations of the Uniformed 

Services Employment and Reemployment Rights Act of 1994 (codified as 

amended at 38 U.S.C. §§ 4301-4335) and the Veterans Employment Opportunities 

Act of 1998.2 IAF, Tab 3. 

¶3 The administrative judge issued a jurisdictional order that advised the 

appellant that his appeal may not be within the Board’s jurisdiction, provided him

with the law and burdens of proof applicable to the Board’s jurisdiction over each 

of the claims that the appellant indicated he was attempting to appeal, and set 

deadlines for the parties to respond to the order. IAF, Tab 3. Although the 

agency filed a response, the appellant did not respond. IAF, Tab 5. Without 

holding a hearing, the administrative judge issued an initial decision that 

addressed each of the appellant’s allegations and dismissed the appeal for lack of 

jurisdiction. IAF, Tab 7, Initial Decision (ID). 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, PFR File, Tab 1. The agency has filed a response to the petition. PFR File, 

Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 Before considering the appellant’s petition for review, we find that we must 

address the applicability of the settlement agreement between the parties, which 

 

2

There may be a question as to timeliness. However, because the Board lacks 

jurisdiction over the appeal, it need not address the issue of the timeliness of the 

appellant’s initial appeal. Fletcher v. Office of Personnel Management, 118 M.S.P.R. 

632, 635 n.2 (2012). 
4

was submitted into the record below. IAF, Tab 5 at 27-35. In considering the 

impact of a prior settlement agreement on a pending appeal, the Board will 

consider the agreement to determine the effect on the Board appeal and any 

waiver of Board appeal rights, even when, as here, the agreement was reached 

outside of a Board proceeding.3 Swidecki v. U.S. Postal Service, 101 M.S.P.R. 

110, ¶ 7 (2006). The appellant may challenge the validity of the settlement 

agreement if he believes it was unlawful, involuntary, or resulted from fraud or 

mutual mistake. Id., ¶ 13. An appellant has the burden of showing that he 

involuntarily entered into a settlement agreement. Id. An appellant’s mere 

post-settlement remorse or change of heart cannot serve as a basis for setting 

aside a valid settlement agreement. Hinton v. Department of Veterans Affairs, 

119 M.S.P.R. 129, ¶ 4 (2013). 

¶6 The appellant also may challenge the enforceability of any waiver of Board 

appeal rights. Such a waiver is enforceable if its terms are comprehensive, freely 

made, and fair, and execution of the waiver did not result from agency duress or 

bad faith. Swidecki, 101 M.S.P.R. 110, ¶ 17. In deciding whether the appellant 

freely and voluntarily entered into the settlement agreement, the Board will 

consider whether he was represented, whether he has demonstrated that he was 

mentally impaired when the agreement was reached, and whether he has 

 

3 Although the administrative judge did not provide the appellant with jurisdictional 

burdens of proof concerning the settlement agreement, we find it unnecessary to remand 

this appeal for a proper jurisdictional notice. See Burgess v. Merit Systems Protection 

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive 

explicit information on what is required to establish an appealable jurisdictional issue). 

The Board has found that an administrative judge’s defective notice can be cured if the 

agency’s pleadings contain the notice that was lacking in the jurisdictional order. Scott

v. Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007). Here, the agency adequately 

informed the appellant in its narrative response that the appellant has provided no 

showing that the settlement agreement was obtained under coercion or 

misrepresentation. IAF, Tab 5 at 12. On review, the appellant does not challenge the 

validity of the settlement agreement or the enforceability of the waiver clause. PFR

File, Tab 1.
5

otherwise shown that he was unable to understand the nature of the settlement 

agreement fully. Id. 

¶7 Here, the appellant was represented by a union representative during 

settlement negotiations, and both the appellant and his representative signed the 

settlement agreement. IAF, Tab 5 at 35. Such representation is significant in 

determining the validity of an appeal-rights waiver. Clede v. Department of the 

Air Force, 72 M.S.P.R. 279, 285 (1996), aff’d, 113 F.3d 1257 (Fed. Cir. 1997) 

(Table). The agreement specifically provided that the appellant and the agency 

entered into it voluntarily, without coercion or duress. IAF, Tab 5 at 34. The 

appellant has provided no arguments that he was mentally impaired when the 

agreement was reached, or that he entered into the agreement under duress or 

coercion.

¶8 Furthermore, we find that the November 24, 2015 settlement agreement 

includes an explicit waiver of the appellant’s Board appeal rights over any action 

“which arose in whole or in part from [the appellant’s] employment relationship 

with Postal Service, and which are based upon incidents, occurrences, or actions 

taking place prior to the execution of this agreement.” IAF, Tab 5 at 27-29. We

further find that, in this appeal, the appellant is contesting his removal and 

matters that preceded his removal. All of these matters thus arose prior to, or as a 

result of the terms of, the settlement agreement entered into by the parties. By 

the explicit terms of the settlement agreement, which we find that the appellant 

knowingly and voluntarily signed, he waived further Board appeal rights 

concerning his removal.4 We find the waiver enforceable. 

 

4

To the extent the appellant is claiming that he left the agency as a result of an 

involuntary resignation or involuntary retirement, the record shows he was removed 

from his position based on a charge of inability to perform. Because the appellant was 

removed by the agency from his position as a Mail Processing Clerk, it is not necessary 

to analyze this matter as a constructive adverse action. To the extent the administrative 

judge did so, we vacate those findings in the initial decision.
6

¶9 On review, the appellant reasserts the numerous allegations he raised below 

concerning his on-the-job injury, his resulting medical treatment, the failure of 

the agency to provide him with a modified assignment, his removal, and various 

laws he claims were violated by the agency during his employment and removal.

5

PFR File, Tab 1 at 4. However, because this appeal is properly dismissed for lack 

of jurisdiction based on the terms of the settlement agreement, we need not reach 

the other issues raised by the appellant on review. See Lee v. U.S. Postal Service, 

111 M.S.P.R. 551, ¶ 10 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010). 

¶10 Accordingly, we find that the Board lacks jurisdiction over the matters 

raised in this appeal based on the terms in the settlement agreement. 

NOTICE OF APPEAL RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

 

5

The appellant has attached letters of reference and various medical and financial 

documents to his petition for review without a showing that they were unavailable 

before the record closed despite his due diligence. PFR File, Tab 1 at 5-81. Thus, 

under 5 C.F.R. § 1201.115, the Board need not consider them. To the extent that some 

of the documents were submitted for a first time on review, we find that they are not 

material to the appellant’s voluntariness of entering into the settlement agreement and 

do not warrant a different outcome. See Russo v. Veterans Administration, 3 M.S.P.R. 

345, 349 (1980); PFR File, Tab 1 at 6-15, 37-39, 57-81.

6

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 
8

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 
9

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.7 The court of appeals must receive your petition for 

 

7

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
10

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board