Opinion

Eugene Echeverria v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Jun 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 27.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EUGENE A. ECHEVERRIA, DOCKET NUMBER

Appellant, DE-0752-19-0116-I-1

DEPARTMENT OF THE AIR FORCE, DATE: June 25, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.

Jason D. Marsh , Esquire, and Darrin K. Johns , Esquire, Hill Air Force

Base, Utah, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his removal appeal as settled. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was employed by the agency as a Logistics Management

Specialist in the Air Force Life Cycle Management Center. Initial Appeal File

(IAF), Tab 10 at 10. On December 11, 2018, the agency proposed his removal for

conduct unbecoming a Federal employee based on two incidents regarding drug

and drug paraphernalia possession. Id. at 26-28. Following an oral and written

response to the proposed removal, the agency removed the appellant, effective

January 23, 2019. Id. at 13-22.

The appellant appealed the removal action to the Board, and a hearing was

held on April 26, 2019. IAF, Tabs 1, 25, Hearing Compact Disc (HCD). During

the hearing, the parties indicated that they had reached a settlement agreement but

needed additional time to finalize the terms. HCD. Thereafter, the agency filed a

motion to dismiss the appeal as settled, attaching the settlement agreement, which

was executed on May 23, 2019, by the appellant, his attorney, and the agency

representative. IAF, Tab 27. As a part of the agreement, the appellant agreed to

withdraw any Board appeals and to release the agency from any claims. Id. at 4.

The administrative judge issued an initial decision dismissing the appeal as

settled. IAF, Tab 28, Initial Decision (ID). He stated that he reviewed the

agreement and found that the parties understood and freely agreed to the terms of

the agreement, that the parties wanted the agreement entered into the record so

that the Board will retain jurisdiction to enforce its terms, and that the agreement

is lawful on its face. ID at 1-2. The administrative judge accepted the settlement

agreement into the record and dismissed the appeal. ID at 2.

The appellant has filed a petition for review claiming that he involuntarily

entered into the settlement agreement. Petition for Review (PFR) File, Tab 1

at 4-5. He also argues that the underlying charge is based on improperly obtained

evidence and false information, and that the agency violated the terms of the

applicable collective bargaining agreement (CBA). Id. at 6-10. He has also

submitted a character statement from a coworker, a printout from an incident

report from the Sheriff’s Office for the county where the agency facility is

located, and a printout from the Administrative Office of the United States

Courts. PFR File, Tabs 2-4. The agency has filed a response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The parties’ settlement agreement is valid.

A party may challenge the validity of a settlement agreement if he believes

that it is unlawful, involuntary, or the result of fraud or mutual mistake.

Hinton v. Department of Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013).

To establish that a settlement was fraudulent as a result of coercion or duress, a

party must prove that he involuntarily accepted the other party’s terms, that the

circumstances permitted no other alternative, and that such circumstances were

the result of the other party’s coercive acts. Id. The party challenging the

validity of a settlement agreement bears a heavy burden of showing a basis for

invalidating the agreement. Id.

Here, the appellant claims that the settlement was involuntary because the

administrative judge only heard the agency’s side of the case and pressured him

to settle without providing him a chance to present his side of the case. PFR File,

Tab 1 at 4-5. Specifically, the appellant asserts that the administrative judge told

him that he “might as well settle . . . because . . . he was not going to believe a

word [the appellant] said in [his] defense anyway.” Id. at 5. The Board has held

that when an appellant alleges that an administrative judge put so much pressure

on him to vitiate his consent, he must present the same sort of evidence that he

would otherwise be required to put forth if the allegation was against another

party to the litigation. Compare Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 280

(1991), with Hinton, 119 M.S.P.R. 129, ¶ 4.

We find that the appellant’s allegations are insufficient to establish that he

involuntarily entered into the agreement as a result of the administrative judge’s

actions. First, the appellant has offered no evidence on review beyond his bare

assertions to support his claim that the administrative judge pressured him into

entering the agreement, nor has he claimed that he lacked any meaningful

alternative. PFR File, Tab 1 at 4-5. Further, looking to the terms of the

agreement, the beginning paragraph and closing paragraph include language

stating that the parties entered into the agreement freely and voluntarily. IAF,

Tab 27 at 4, 6. Moreover, the appellant was represented by counsel when he

signed the settlement agreement, id. at 6, and the Board has considered that as a

factor weighing against a finding of involuntariness, see Coker v. Department of

Commerce, 111 M.S.P.R. 523, ¶ 9 (2009) (considering the fact that the appellant

was represented by counsel in negotiating a settlement agreement as a factor in

finding that he could not collaterally challenge the settlement agreement).

Accordingly, we find the appellant’s argument that he entered into the settlement

agreement involuntarily to be unconvincing. 2

To the extent the appellant’s allegations amount to claims that the administrative

judge was biased, we similarly find the appellant’s claims insufficient. An

administrative judge’s conduct during the course of a Board proceeding warrants a new

adjudication only if the administrative judge’s comments or actions evidence “a

deep-seated favoritism or antagonism that would make fair judgment impossible.”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The appellant’s assertions

here do not meet this rigorous standard.

The appellant’s remaining arguments on review do not provide a basis to disturb

the initial decision.

As stated above, the appellant also argues that the underlying charge is

based on improperly obtained evidence and false information. 3 PFR File, Tab 1

at 6-7. He also renews his argument from below, made prior to the settlement

agreement, IAF, Tab 9, that the agency engaged in harmful procedural error when

it failed to comply with certain terms of the CBA, PFR File, Tab 1 at 7-10.

We need not consider either claim, however, because the appellant chose not to

pursue them when he agreed to settle his appeal with a term in the settlement

agreement that he would not pursue the issues raised in the appeal. IAF, Tab 27

at 4; see Young v. Department of the Interior, 76 M.S.P.R. 501, 504 (1997)

(finding that an appellant chose not to pursue his affirmative defense when he

agreed to settle his appeal).

Based on the foregoing, we deny the appellant’s petition for review and

affirm the initial decision dismissing the appellant’s appeal as settled. 4

In his petition for review, the appellant claims that the agency’s actions regarding the

underlying action constitute “fraud.” PFR File, Tab 1 at 6-7. We clarify that these

allegations do not amount to allegations of fraud in the inducement of the settlement

agreement because they do not address the parties’ negotiation process and only

concern the merits of the underlying action, thereby making them irrelevant to our

consideration of the validity of the settlement agreement. See Wofford v. Department of

Justice, 115 M.S.P.R. 468, ¶ 7 (2010) (defining “fraud in the inducement” as a

misrepresentation that leads another to enter into a transaction with a false impression

of the risks, duties, or obligations involved).

As discussed above, the appellant also submitted three additional documents on

review. PFR File, Tabs 2-4. Under 5 C.F.R. § 1201.115, the Board generally will not

consider evidence submitted for the first time with the petition for review absent a

showing that it was unavailable before the record was closed despite the party’s due

diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Additionally,

the Board will not grant a petition for review based on new evidence absent a showing

that it is of sufficient weight to warrant an outcome different from that of the initial

decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). The appellant

has not shown that any of the three documents submitted on review were unavailable

before the record closed despite his due diligence, nor has he shown that they concern

the settlement agreement at issue here, thereby failing to demonstrate that they are of

sufficient weight to warrant an outcome different from that of the initial decision.

NOTICE OF APPEAL RIGHTS 5

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 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:

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.

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

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. 420 (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

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. 6 The court of appeals must receive your petition for

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