The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY PUCEK, DOCKET NUMBER
Appellant, CH-315H-14-0147-I-1
v.
DEPARTMENT OF DEFENSE, DATE: October 20, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher A. Murray, Esquire, Cleveland, Ohio, for the appellant.
Anne D. Turner, Esquire, and Benjamin B. Hamlow, Indianapolis, Indiana,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as withdrawn pursuant to a settlement agreement.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed a Board appeal of his probationary termination. Initial
Appeal File (IAF), Tab 1 at 2, 7. He alleged that his termination was the result of
sex discrimination, disability discrimination, retaliation, mismanagement, and
“abuse of authority.” IAF, Tab 1 at 2. Subsequently, the appellant and the
agency entered into a global settlement agreement to resolve both the instant
appeal and an Equal Employment Opportunity (EEO) complaint. IAF, Tab 10 at
5. Pursuant to the agreement, the appellant withdrew this appeal. Id. The agency
agreed to cancel the appellant’s termination and pay him back pay. Id. at 6.
¶3 The administrative judge issued an order instructing the appellant to show
cause why this appeal should not be dismissed pursuant to the settlement
agreement. IAF, Tab 11 at 1. After the appellant responded, the administrative
judge issued an initial decision dismissing the appeal as withdrawn. IAF, Tab
12 at 2-3, Tab 13, Initial Decision (ID) at 1-2. The appellant has submitted a
timely petition for review. Petition for Review (PFR) File, Tab 1. The agency
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has responded to the petition for review, and the appellant has replied. PFR File,
Tabs 3-4.
The appellant’s signature on the settlement agreement was sufficient to withdraw
his Board appeal.
¶4 On review, the appellant argues that, although the settlement agreement
“contemplates” withdrawal of the appeal, he did not withdraw and the agency
made a motion for dismissal. PFR File, Tab 1 at 4. We agree with the
administrative judge’s dismissal of the appeal as withdrawn. 2
¶5 An appellant’s withdrawal of an appeal is an act of finality and, absent
unusual circumstances such as misinformation or new and material evidence, the
Board will not reinstate the appeal once it has been withdrawn. See Scarboro v.
Department of the Navy, 55 M.S.P.R. 494, 496 (1992); Wilson v. U.S. Postal
Service, 45 M.S.P.R. 499, 502 (1990). The Board will consider a settlement
agreement, even though it was reached outside of a Board proceeding, to
determine its effect on the Board appeal and any waiver of Board appeal rights.
Lee v. U.S. Postal Service, 111 M.S.P.R. 551, ¶ 4 (2009), aff’d, 367 F. App’x
137 (Fed. Cir. 2010). A waiver of Board appeal rights is enforceable if its terms
are comprehensive, freely made and fair, and execution of the waiver did not
result from agency duress or bad faith. Id.
2
On review, the appellant alleges that the administrative judge did not consider his
response to the show cause order. See PFR File, Tab 1 at 5. He alleges that he spoke
with the administrative judge, who stated that she did not see the appellant’s response
before issuing the initial decision. PFR File, Tab 1 at 5. Even if true, this does not
change our analysis. The administrative judge’s alleged omission in the initial decision
constitutes harmless error because the appellant’s response did not show good cause for
not dismissing the appeal. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981) (the administrative judge’s procedural error is of no legal consequence unless it
is shown to have adversely affected a party’s substantive rights); see Jackson v.
Department of Defense, 28 M.S.P.R. 463, 465 (1985) (the Board found that the
administrative judge’s error in issuing her initial decision prior to the date specified for
final receipt of evidence or argument was harmless where the employee’s timely
additional submission was of insufficient weight to warrant a different outcome than
that ordered by the administrative judge).
4
¶6 We agree with the administrative judge’s finding that the appellant
withdrew his Board appeal in the settlement agreement. The agreement explicitly
states: “[appellant’s] signature on this Agreement constitutes his withdrawal of
the Complaint, and his MSPB Appeal (Docket No. CH-315H-14-0147-I-1) and the
full and complete settlement thereof.” IAF, Tab 10 at 5. The appellant has not
alleged that the settlement agreement was not freely made, was unfair, or resulted
from agency duress or bad faith when he signed it. Therefore, he has not shown
that he involuntarily entered into the agreement. See Lee, 111 M.S.P.R. 551, ¶ 9.
Thus, his withdrawal is enforceable.
We decline to consider the appellant’s argument, raised for the first time on
review, that the parties extended the revocation period.
¶7 On review, the appellant alleges that he revoked the settlement agreement.
PFR File, Tab 1 at 4-5, Tab 4 at 2, 4. The Board generally will not consider an
argument raised for the first time on review absent a showing that the
appellant based the argument on new and material evidence not previously
available despite his due diligence. See Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d).
¶8 The appellant did not argue below that he had revoked the agreement or that
the revocation period was extended. His response to the administrative judge’s
show cause order indicated that “some issues have developed regarding the
settlement agreement between [the a]ppellant and [the a]gency, which require
additional time to resolve.” IAF, Tab 12 at 2. In addition, it stated that
mediation regarding the appellant’s EEO case could be reopened as a result. Id.
The language suggests that the appellant wanted to renegotiate the terms of the
agreement, rather than rescind it. Further, the appellant’s response did not
indicate that the revocation period was extended. See id. at 2-3. Because the
appellant was afforded an opportunity to raise his arguments below in response to
the administrative judge’s order, but did not do so, we decline to consider his
arguments on review. See Washington v. Department of the Navy, 77 M.S.P.R.
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525, 528-29 (1998); Timberlake v. U.S. Postal Service, 76 M.S.P.R. 172, 175
(1997).
¶9 The appellant signed the settlement agreement on January 24, 2014. IAF,
Tab 10 at 8. Pursuant to the terms of the agreement, he had 7 days, or until
January 31, 2014, to revoke. Id. at 7. For the first time on review, he argues that
he revoked on January 31, 2014, by speaking with an agency official. PFR File,
Tab 1 at 4. He also claims that, on that date his counsel contacted the agency’s
representative and left two voicemail messages requesting to extend the
revocation period. 3 Id. at 4-5. According to the agency, the voicemail messages
were an ineffective revocation because they were received after January 31, 2014.
PFR File, Tab 3 at 10-11. The agency does not respond to the appellant’s claims
that he spoke with an agency official.
¶10 Nevertheless, we find that the appellant should have raised below his
arguments and evidence regarding revocation or extension of the revocation
period. We decline to consider them for the first time here. Further, we note
that, pursuant to the settlement agreement, the appellant retained employment
with the agency and he received back pay. IAF, Tab 10 at 6; PFR File, Tab 3 at
4. His failure to show that he is willing to return the back pay and rescind his
employment agreement with the agency undermines his revocation claim. 4 See
Thompson v. National Aeronautics and Space Administration, 68 M.S.P.R. 135,
138 (1995) (noting that an appellant’s claim of coercion was undermined where
she did not indicate that she was willing to return the back pay and benefits she
received under the settlement agreement).
3
According to the appellant, he again revoked the agreement on February 21, 2014,
within an extended revocation period agreed to by the agency. PFR File, Tab 4 at 4.
4
“The continued acceptance of benefits under the contract is the most common and
clearest case of election by conduct.” Cities Service Helex, Inc. v. United States,
543 F.2d 1306, 1314 (Ct. Cl. 1976
6
The Board does not have jurisdiction over the agency’s alleged breach of the
settlement agreement.
¶11 On review, in addition to claiming that he revoked the agreement, the
appellant challenges the agency’s compliance with the settlement agreement.
PFR File, Tab 4 at 2-9. He argues that it is disputed whether he has been “made
whole” by his return to duty. Id. at 2. Further, he argues that the back pay he
received was “not full” because he was “docked for healthcare.” Id. at 9.
Moreover, he alleges that he is “still subject to the same [ongoing] hostile
conditions of which he was subject prior to, and culminating with, his
termination.” Id.
¶12 Pursuant to the settlement agreement, if the appellant believes that the
agency failed to comply with the agreement, he may wish to seek enforcement
with the agency’s EEO Director, as provided in the agreement. IAF, Tab 10 at 7.
This provision is consistent with 29 C.F.R. § 1614.504(a). Thus, the agreement
shows that the parties did not intend to have the Board enforce the settlement
agreement. See Grubb v. Department of the Interior, 76 M.S.P.R. 639, 642-43
(1997). We agree with the administrative judge’s decision not to enter the
settlement agreement into the record for enforcement. See ID at 1-2.
¶13 Although the Board can consider a settlement agreement reached outside of
a Board proceeding to determine its effect on the Board appeal and any
waiver of appeal rights, it cannot enforce such an agreement.
Lee, 111 M.S.P.R. 551, ¶ 4 & n.2. The appellant’s request that we find that the
agency has breached the terms of the settlement agreement is tantamount to a
request for enforcement of the agreement. See Lopez v. U.S. Postal
Service, 71 M.S.P.R. 461, 463 (1996). Because the agreement was not entered
into the record for enforcement purposes, the Board does not have the authority
to act on the appellant’s request. Id.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States 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 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 United States 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 United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.