Rzayev v. MSPB, 24-2257

Fakhraddin F. Rzayev was appointed to a competitive service position as an IRS Criminal Investigator in March 2021 and signed a Conditions of Employment (COE) agreement that included a waiver of certain statutory appeal rights during a three-year probationary period.
The COE agreement explicitly stated Rzayev waived his right to appeal removal to the Merit Systems Protection Board (MSPB) until the end of the probationary period, retaining only limited appeal rights under 5 C.F.R. § 315.806.
On April 28, 2023, Rzayev was terminated for unsatisfactory performance after failing required training.
Rzayev appealed to the MSPB, which dismissed his case for lack of jurisdiction, citing the waiver in the COE agreement.
The MSPB’s initial dismissal was upheld by the full Board and subsequently affirmed on appeal to the Federal Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of COE agreement/wavier	Agreement was ambiguous, so waiver not knowing and voluntary	Agreement language was clear and unambiguous	Waiver was clear and unambiguous; Rzayev knowingly waived statutory appeal
Effect of lack of representation at signing	Lack of representation meant waiver was not voluntary/knowing	Waiver was still knowing and voluntary regardless	Lack of representation did not affect validity—waiver upheld
Consideration	COE was invalid due to lack of consideration	Consideration existed: appointment to investigator role	Appointment itself was sufficient consideration; argument rejected
Public policy/unequal bargaining power	Waiver was invalid as contrary to public policy & unequal bargaining power	Argument not preserved below	Arguments were forfeited because raised too late; court declined to consider

McCall v. U.S. Postal Serv., 839 F.2d 664 (Fed. Cir. 1988) (an employee may waive right to appeal to MSPB via valid agreement)
Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990 (Fed. Cir. 1996) (contract interpretation and ambiguity are legal questions)
Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665 (Fed. Cir. 1998) (issues first raised in petitions for full Board review are not considered on appeal)