John Tamburi v. Department of Transportation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN TAMBURI, DOCKET NUMBER
Appellant, AT-1221-15-0326-X-1
v.
DEPARTMENT OF DATE: September 16, 2016
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
John Tamburi, Marietta, Georgia, pro se.
William Vines, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On August 24, 2015, the administrative judge issued a compliance initial
decision finding the agency in noncompliance with the parties’ May 8, 2015
settlement agreement, and the matter was referred to the Board for consideration.
Tamburi v. Department of Transportation, MSPB Docket
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
No. AT-1221-15-0326-C-1, Initial Decision (Aug. 24, 2015); Compliance File
(CF), Tab 7, Compliance Initial Decision (CID). For the reasons discussed
below, we DISMISS the petition for enforcement as settled.
¶2 In the compliance initial decision, the administrative judge found that,
because the agency provided no evidence that it adjusted the appellant’s time in
grade to F/G-14 from June 22, 2008, through February 7, 2015, paid the appellant
the appropriate amount of back pay, or used whatever portion of that back pay
was necessary to repay the appellant’s notice of indebtedness with the
Department of Interior, it had materially breached the settlement agreement.
CID at 3. Accordingly, the administrative judge ordered the agency to adjust the
appellant’s time in grade to F/G-14 from June 22, 2008, through
February 7, 2015, pay the appellant the appropriate amount of back pay, use
whatever portion of that back pay was necessary to repay the appellant’s notice of
indebtedness with the Department of Interior, and fully comply with all other
relevant aspects of 5 C.F.R. § 1201.183. CID at 4.
¶3 After issuance of the compliance initial decision finding noncompliance, the
parties submitted a document titled “SETTLEMENT AGREEMENT” signed and
dated by the agency on May 17, 2016, and by the appellant on May 18, 2016.
Tamburi v. Department of Transportation, MSPB Docket
No. AT-1221-15-0326-X-1, Compliance Referral File (CRF), Tab 14. The
document provides for, among other things, the withdrawal of the underlying
petition for enforcement. Id.
¶4 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 satisfied these requirements: they have entered into a settlement
agreement, they understand the terms, and they want the Board to enforce those
terms. CRF, Tab 14 at 6.
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¶5 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 its subject
matter is within the Board’s jurisdiction. 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 the
case—the enforcement of the terms of the May 8, 2015 settlement agreement
under which the appeal in Tamburi v. Department of Transportation,
MSPB Docket No. AT-1221-15-0326-W-1 was dismissed as settled—is within the
Board’s jurisdiction under 5 C.F.R. § 1201.41(c)(2)(i). Accordingly, we find that
dismissal of the petition for enforcement is appropriate, and we accept the
settlement agreement fully executed by the parties on May 18, 2016 into the
record for enforcement purposes.
¶6 This is the final decision of the Merit Systems Protection Board in this
petition for enforcement. Title 5 of the Code of Federal Regulations,
section 1201.113 (5 C.F.R. § 1201.113).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
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that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.