Rzayev v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: March 11, 2025
• Docket: 24-2257
• Status: Unpublished

Opinion

Case: 24-2257 Document: 26 Page: 1 Filed: 03/11/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

FAKHRADDIN F. RZAYEV, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-2257 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-315H-23-0344-I-1. ______________________

Decided: March 11, 2025 ______________________

FAKHRADDIN F. RZAYEV, Plano, TX, pro se.

ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, DYK, and REYNA, Circuit Judges. Case: 24-2257 Document: 26 Page: 2 Filed: 03/11/2025

PER CURIAM. Fakhraddin F. Rzayev petitions for review of a final de- cision of the Merit Systems Protection Board (“the Board”), dismissing his administrative appeal for lack of jurisdic- tion. Rzayev v. Dep’t of the Treasury, SF-315H-23-0344-I- 1, 2024 WL 3791350 (M.S.P.B. Aug. 12, 2024) (“Final Or- der”). For the following reasons, we affirm. BACKGROUND Rzayev began his employment with the Department of the Treasury’s Internal Revenue Service (“IRS”) on August 19, 2019. On March 28, 2021, he was appointed to a com- petitive service position as an IRS Criminal Investigator. Prior to the start of that appointment, on March 23, 2021, Rzayev initialed and signed a Conditions of Employment (“COE”) agreement. One of the stated conditions reads as follows: As a new or current IRS employee selected for the CI Special Agent position, I understand that I will be subject to a three-year probationary period dur- ing which time my performance and conduct will be reviewed. I understand that my unsatisfactory performance or unacceptable conduct during this period could result in my removal from this posi- tion and/or the IRS. I understand that I might or- dinarily have the right to appeal such removal under 5 U.S.C. § 7513. However, in acknowledg- ment of my acceptance of this position, I knowingly and voluntarily waive my statutory appeal rights until completion of my three-year probationary pe- riod. These rights include but are not limited to: the right to 30 days advanced written notice; a rea- sonable response period of not less than seven (7) days; and the right to appeal the removal to the Merit Systems Protection Board. I will retain lim- ited appeal rights under 5 C.F.R. § 315.806 during this period. If I successfully completed the three- Case: 24-2257 Document: 26 Page: 3 Filed: 03/11/2025

RZAYEV v. MSPB 3

year probationary period during prior service as a CI Special Agent, this condition of employment will not apply to me. I.A. 9 1 (emphases added). On April 28, 2023, Rzayev was terminated from service for unsatisfactory performance after receiving failing grades on Enforcement Activities training. 2 I.A. 5–7. Rza- yev appealed his removal to Board. The administrative judge (“AJ”) issued an order informing Rzayev that it may lack jurisdiction over his appeal and ordered him to file ev- idence and argument establishing the Board’s jurisdiction. Following responses from Rzayev and the agency, the AJ issued an initial decision dismissing Rzayev’s appeal for lack of jurisdiction. Rzayev v. Dep’t of the Treasury, No. SF- 315H-23-0344-I-1, 2023 WL 4052314 (M.S.P.B. June 12, 2023) (“Decision”), at I.A. 14. 3 The AJ determined that alt- hough Rzayev was an “employee” under the 5 U.S.C. § 7511, he had waived his statutory rights to an appeal to the Board through his acceptance of the “clear and unam- biguous” COE agreement. Id., I.A. 18. Accordingly, the AJ dismissed Rzayev’s appeal for lack of jurisdiction. Id., I.A. 21. Rzayev then petitioned the full Board for review. The Board denied Rzayev’s petition and adopted the initial

1 I.A. refers to the Informal Appendix submitted with Rzayev’s principal brief. 2 The agency terminated Rzayev from service on three separate occasions. The first two, on August 19, 2022, and October 7, 2022, were both rescinded by the agency and Rzayev was restored to duty effective on the date of each termination. See I.A. 43, 46. 3 Because the published decision lacks pagination, we refer to the page numbers as they appear in Rzayev’s Informal Appendix. Case: 24-2257 Document: 26 Page: 4 Filed: 03/11/2025

decision as its own final decision on August 12, 2024. Final Order, at *1. Rzayev timely appealed to this court, and we have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9). DISCUSSION We review the Board’s jurisdictional determinations de novo. Jones v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024). We must affirm the Board decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or oth- erwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). An “employee,” as defined by § 7511, may waive his statutory right of appeal to the Board via agreement. See McCall v. U.S. Postal Serv., 839 F.2d 664, 667–69 (Fed. Cir. 1988) (holding that an employee may waive his right to appeal a disciplinary action to the Board pursuant to 5 U.S.C. § 7701(a) via a “last chance” settle- ment agreement). If said agreement is found to be valid and enforceable, the Board lacks jurisdiction over the ap- peal. Id. at 669. Rzayev bears the burden of raising a “non- frivolous allegation of facts sufficient to establish jurisdic- tion” of the Board. Rice v. Merit Sys. Prot. Bd., 522 F.3d 1311, 1314 (Fed. Cir. 2008). Rzayev argues that his COE agreement was not valid because (1) the contract was ambiguous, (2) he lacked rep- resentation at the time of the agreement, and (3) it was un- supported by consideration. He also argues that the contract was unenforceable as contrary to public policy and invalid due to the unequal bargaining power of the parties. We disagree with the first set of argument on the merits and find that the second set was forfeited. First, Rzayev argues that his appeal to the Board fol- lowing an August 19, 2022 termination letter and the agency’s subsequent recission of that termination demon- strates that neither party understood the terms of the Case: 24-2257 Document: 26 Page: 5 Filed: 03/11/2025

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contract and it was therefore ambiguous. See I.A. 39–44. However, the termination letter affirmatively reflects the agency’s understanding that he had “knowingly and volun- tarily waived [his] statutory appeal rights until the com- pletion of [his] three-year probationary period.” I.A. 39. And the agency’s letter rescinding his termination does not reflect a different understanding of the waiver provision. I.A. 43–44. Furthermore, interpretation of a contract and whether a provision is ambiguous are questions of law. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir. 1996). Here, the contract is unambiguous because there is only one reasonable interpretation of the waiver provision. See id. That provision expressly states: “I know- ingly and voluntarily waive my statutory appeal rights un- til completion of my three-year probationary period.” I.A. 9. It continues: “[t]hese rights include but are not limited to: . . . the right to appeal the removal to the Merit Systems Protection Board.” Id. The only reasonable interpretation of that provision is that, by signing the agreement, Rzayev knowingly waived his statutory right of appeal to the Board. 4 Second, Rzayev argues that his lack of representation at the time he signed the COE agreement was not properly considered. A lack of representation is just one factor the Board considers when assessing the voluntariness of a con- tract. See Swidecki v. U.S. Postal Serv., 101 M.S.P.R. 110, 118 (2006). Here, the Board considered his lack of repre- sentation and found that the waiver language was “suffi- ciently clear and unambiguous for [Rzayev] to have been able to knowingly and voluntarily accepted the waiver

4 The fact that Rzayev retains a limited right to ap- peal under 5 C.F.R. § 315.806 does not alter this conclusion because Rzayev does not allege that his termination was based on “partisan political reasons or marital status.” See 5 C.F.R. § 315.806(b). Case: 24-2257 Document: 26 Page: 6 Filed: 03/11/2025

terms, regardless of his lack of representation.” Decision, at I.A. 19. We see no reversible error in that conclusion. Indeed, Rzayev offers no specific evidence as to why he would not have been capable of understanding the plain language of the agreement absent representation. Rzayev’s third argument—that the COE agreement lacked consideration—also fails. Rzayev’s appointment to a position as an IRS Criminal Investigator was the consid- eration in exchange for his agreement to “waive [his] stat- utory appeal rights until completion of [his] three-year probationary period.” See I.A. 9–14; Restatement (Second) of Contracts § 71 (1981) (defining consideration). Finally, Rzayev asserts that he did not forfeit his argu- ments that the agreement was contrary to public policy or invalid due to the unequal bargaining power of the parties because he raised them for the first time “in the petition for review (‘PFR’) to the full MSPB.” Informal Reply Br. 7–8. That argument defies our precedent. As we have long held, if a party “raises an issue for the first time in a petition for review by the full Board, this court will not consider the issue.” Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). As such, we decline to consider those ar- guments. CONCLUSION We have considered Rzayev’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s dismissal for lack of jurisdiction. AFFIRMED COSTS The parties shall bear their own costs.