Opinion

Cecelia Tenoso v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
May 18, 2015
Status
Unpublished
Cited by
0 cases
Authority
More cited than 34.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CECELIA TENOSO, DOCKET NUMBER

Appellant, DE-831M-14-0599-I-1

v.

OFFICE OF PERSONNEL DATE: May 18, 2015

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL ∗

Cecelia Tenoso, Corrales, New Mexico, pro se.

Christopher H. Ziebarth, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her appeal as settled. 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 erroneous interpretation of statute or regulation or

∗

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

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).

¶2 The appellant filed an appeal of an Office of Personnel Management (OPM)

reconsideration decision, which found that she had been overpaid $2,727.92 in

annuity benefits and that she was not entitled to a waiver. Initial Appeal File

(IAF), Tab 1. Prior to the scheduled hearing, the parties entered into a settlement

agreement. IAF, Tab 13. Under the terms of the settlement agreement the agency

agreed to accept repayment in full of the annuity overpayment in installments of

$50.00 a month for 54 months and a final payment of $27.92, to be deducted from

the appellant’s monthly annuity benefit. The agency also agreed that no interest

will be charged during this scheduled collection. Id. In exchange, the appellant

agreed to withdraw her appeal of OPM’s reconsideration decision. Id. After

finding that the appeal was within the Board’s jurisdiction and that the settlement

agreement was lawful on its face and voluntarily entered into, the administrative

judge entered the agreement into the record for enforcement purposes and

dismissed the appeal as settled. IAF, Tab 14, Initial Decision (ID) at 2.

¶3 A party may challenge the validity of a settlement agreement, regardless of

whether it has been entered into the record for enforcement, if the party believes

that the agreement is unlawful, involuntary, or the result of fraud or mutual

3

mistake. E.g., Sargent v. Department of Health & Human Services, 229 F.3d

1088, 1091 (Fed. Cir. 2000); Wade v. Department of Veterans Affairs,

61 M.S.P.R. 580, 583 (1994). To establish that a settlement agreement was

fraudulent as a result of coercion or duress, a party must prove that she

involuntarily accepted the other party’s terms, that circumstances permitted no

alternative, and that such circumstances were the result of the other party’s

coercive acts. Potter v. Department of Veterans Affairs, 111 M.S.P.R. 374, ¶ 6

(2009); Candelaria v. U.S. Postal Service, 31 M.S.P.R. 412, 413 (1986). The

party challenging the validity of the settlement agreement bears a “heavy

burden.” Asberry v. U.S. Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982).

An appellant’s mere post-settlement remorse or change of heart cannot serve as a

basis for setting aside a valid settlement agreement. Hinton v. Department of

Veterans Affairs, 119 M.S.P.R. 129, ¶ 4 (2013); Potter, 111 M.S.P.R. 374, ¶ 6.

¶4 The appellant’s only assertion on review that appears to challenge the

validity of the settlement agreement is her claim that she “does not understand all

the legal jargon pertaining to the terms that was sent to me to sign. How can such

a thing be considered ‘freely’?” Petition for Review (PFR) File, Tab 1.

However, the appellant has failed to present evidence that the agency

representative engaged in coercive acts or that the circumstances were such that

there was no alternative to accepting the agreement as presented by the agency.

Furthermore, the agreement specifically states that “[t]he parties understand these

terms and freely enter into this Agreement.” IAF, Tab 13. Moreover, while the

appellant appears to assert that she did not understand the settlement process, the

record reflects that OPM had proposed a settlement offer with a $100 a month

repayment plan, see IAF, Tabs 9, 11, but, after a telephonic discussion with the

appellant, OPM accepted the appellant’s counter offer in which she agreed to

repay the overpayment with a $50.00 monthly payment over a longer period of

time. IAF, Tabs 11-12. Thus, we find that the appellant has not, by her

challenges to the validity of the agreement, met her burden of proving that the

4

settlement agreement was coerced or that she did not freely enter into the

agreement.

¶5 The appellant’s remaining assertions on review challenge the merits of her

claim for waiver of the overpayment. PFR File, Tabs 1, 3. For example, she

asserts that, with her medical condition of daibetes and having had knee and ankle

surgeries, she still believes that recovery o f the overpayment is unfair and would

be unconscionable under the circumstances. However, the parties resolved any

challenges the appellant may have had to the recovery of the overpayment when

they entered into a settlement agreement and the appellant agreed to withdraw her

appeal of the overpayment action. Thus, we need not address her arguments on

review. While the appellant would like to revoke the settlement agreement

because she still feels that she should not be required to repay the overpayment of

$2,727.92, her post-settlement remorse cannot serve as a basis for setting aside a

valid settlement agreement. Hinton, 119 M.S.P.R. 129, ¶ 4. Accordingly, the

appellant has provided no basis upon which to disturb the initial decision

dismissing this appeal as settled.

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

5

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

information regarding pro bono representation for Merit Systems Protection

Board appellants before the Federal Circuit. The Merit Systems 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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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