Fakhraddin F. Rzayev v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.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 M ICHELLE SMITH .
______________________
Before LOURIE , DYK, and REYNA , Circuit Judges.
Case: 24-2257 Document: 26 Page: 1 Filed: 03/11/2025

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RZAYEV v. MSPB 2
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-
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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. 91 (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.
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RZAYEV v. MSPB 4
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).
D ISCUSSION
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
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RZAYEV v. MSPB 5
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).
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RZAYEV v. MSPB 6
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.
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